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He stated all that had been alledged before him (in substance what was stated in the bill and answer) as to the two bonds, and observed that the award was silent, as well with respect to those bonds, as the application of the money paid by the respondent.

On the 25th of July 1754, the cause was heard upon the Master's report; when it was ordered, that the first special point should be ruled in favour of the appellant; and as to the second, it was referred back to the Master, to inquire whether the bonds for £114 2s. 9d. were under the contemplation of the referees.

Both parties examined witnesses for the Master's information as to the two bonds.

[534] Philip Reilly, who was clerk to one Mr. Rutty, the respondent's solicitor when the award was made, being examined on the part of the respondent, swore, that he often attended the arbitrators, and believed that & bond executed by the respondent Connor, Hugh Ecklin, and Humphry Barry to the appellant, two other bonds executed by the respondent Connor, Hugh Ecklin, and Patrick Murray to the appellant, and a bond executed by the respondent and one Barry to the appellant, were all under the contemplation of the referees. And being cross examined by the appellant, swore, that all the bonds in dispute were, as he believed, mentioned in some of the accounts laid before the arbitrators.

Cornelius O'Callaghan, esq. one of the arbitrators, was examined on the part of the appellant; who being old and very infirm, and considering the great length of time since the award was made, would not take upon him to say whether the said bonds, or what other evidence or papers, were laid before the arbitrators, nor could recollect any particulars concerning the transaction; but believed, that they did therein what appeared to be right; and could not say, whether if the sum due on the two bonds in question was in contemplation of the arbitrators, they would have ascertained such sum by their award, or would have thereby directed the said two bonds to be delivered up.

On the 20th of October 1758, the Master reported, that he had examined into the matter relative to the two bonds, and found that they were under the contemplation of the referees upon making their award.

To this report the appellant excepted; and he having again oppressed the respondent with distresses and ejectments, complaint was made thereof to the Court, grounded on very full affidavits. And on the 19th of December 1758, an order was made, that the matter complained of should stand over till the hearing of the cause, and that the appellant should stop all proceedings against the respondent in the mean time.

The cause was heard on the 12th, 13th, and 21st of July 1759, on the report, exception, and merits; when the exception was over-ruled; and upon the merits it was ordered that the report should be confirmed, and that the appellant should pay the respondent costs relating to the damages in the pleadings mentioned, as also reasonable costs with regard to the proceedings upon the two bonds of £114 2s. 9d. and that the respondent should pay to the appellant costs of the several applications for rent, the said costs to be taxed by the Master; and liberty was thereby given to the appellant, to apply to the Court when the same should be so taxed; and that the respondent should pay the accruing rent in the mean time.

From this decree and the several preceding orders in the cause, subsequent to the confirmation of the award, the appellant thought proper to appeal; insisting (C. Ambler, A. Wedderburn), that the several sums of £70 2s. 5d. and £40 were not the subject matter of the submission, they being due upon the joint security of Connor, Ecklin, [535] and Murray, for rent of the promises let to Ecklin; and there being no disputes between the parties relative to those sums. That the arbitrators had not in their award taken any notice of these sums, nor had they directed general releases to be executed; which they probably would have done, had they considered their award as a final adjustment of all claims and demands between the parties. And that there was no evidence before the Master, that these sums were under the contemplation of the referees; on the contrary, there was the strongest reason to presume, that they were not under their contemplation.

On the other side it was insisted (A. Forrester), that as the bonds given for these two sums were fully put in issue by the answer, and all matters in dispute were referred to the arbitrators, who were attended by the parties and their agents,