1rators, V. A. Dunbar, was an important witness for the plaintiff, and was sworn and testified in favor of the plaintiff, and rendered a decision on his own testimony on the hearing of the said matters in controversy, and which fact was not known to the said defendants at the time of the consent given to allow the said V. A. Dunbar to act as arbitrator, by which great injustice was done to the defend

ants.

"Fourth Exception.-For that, whereas, the said award was improperly made, for the reason that the plaintiff filed no bill of account (or particulars), giving the defendants no notice of the nature of the plaintiff's claim against the said defendants, by which great injustice was done to the defend

ants.

"In all of which particulars defendant is advised, that the award is contrary to law, and prays the same may be set aside and the matters in controversy referred to other arbitrators or to a jury, as may seem proper and right.”

To support these exceptions, she filed the following affidavit of W. W. Hall:

"STATE OF WEST VIRGINIA, PLEASANTS COUNTY, TO-WIT:

"This day personally appeared before me, J. L. Knight, clerk of the circuit court of Pleasants county, W. W. Hall, and made oath that at the time of the agreement made and entered into to change the order made by the county court submitting the matters in controversy in the above entitled cause, he was not aware that the said V. A. Dunbar was an important witness for the plaintiff, Elizabeth Rawson, and that the result of the award and finding of the arbitrators was largely due to the testimony given by said V. A. Dunbar, who was sworn and testified on behalf of the said plaintiff as a witness, and before the award was made. And said affiant further says that had he known that said Dunbar would be used as a witness in the case, the said consent would not have been given.

"Given under my hand this 17th day of March, 1881. “ W. W. HALL. "Subscribed and sworn to before me this 17th day of March, 1881.

"J. L. KNIGHT, Clerk."

Thereupon the plaintiff filed the following affidavit of V. A. Dunbar:

"STATE OF WEST VIRGINIA, PLEASANTS COUNTY, TO-WIT:

"V. A. Dunbar being duly sworn says that he has no recollection of being sworn as a witness in a certain arbitration held by E. B. Steere, T. M. Janes and himself; but he does remember being sworn as an arbitrator. When he was asked by Robert Patterson, Esq., whether he knew anything in relation to the matters submitted to said arbitrators, when it was discovered that what he did know about the business of the parties to the cause of the State of West Virginia for use of Elizabeth Rawson vs. Sarah A. Rawson, was subsequent and outside of the matters submitted to said arbitrators, and was not considered in the award made by them.

"And further, that he is now and was then well aware that his sitting in judgment upon his own evidence would be good cause for setting aside any award so made, and that if he had been called as witness in said matter, he would have refused to act as an arbitrator in said cause.

"V. A. DUNBAR. "Subscribed and sworn to before me this 16th day of March, 1881.

"R. PATTERSON, Notary Public.” On March 18, 1881, the court overruled these exceptions and rendered judgment for the plaintiff against the defendant, Sarah A. Rawson, for $910.39, with interest from September 10, 1880, till paid, and costs. Elizabeth Rawson subsesequently died; and her estate was committed to Wm. E. Pride, sheriff of Pleasants county, as her administrator.

A writ of error and supersedeas was awarded Sarah E. Rawson on this judgment.

Loomis & Tanner, for plaintiff in error.

R. Patterson, for defendant in error.

GREEN, JUDGE:

On the second Tuesday in October, 1880, an amendment to the constitution of this State was adopted by a vote of the people. Section 25, article VIII in this amendment provides, that "all actions, suits and proceedings not embraced in

the next preceding sections (which include the proceedings in this case) pending in a county court, when this article takes effect, together with the records and papers pertaining thereto shall be transmitted to and filed with the clerk of the circuit court of the county, to which office all process outstanding at the time this article goes into operation shall be returned; and the clerk shall have the same power and shall perform the same duties in relation to the said records, papers and proceedings, as were vested in and required of the clerk of the county court on the day before this article took effect. All such actions, suits and proceedings so pending as aforesaid shall be docketed, proceeded in, tried, heard and determined in all respects by the circuit court, as if said suits and proceedings had originated in said court." (Acts of 1883, p. 195.)

This suit had been pending in the county court of Pleasants from June 16, 1879; and all matters of difference between the parties had been submitted to the final determination of arbitration. On September 10, 1880, the arbitrators presented their award in the case; and the court ordered at once the parties to the suit to be summoned to appear on the first day of the next trial-term of said county court to show cause, if any they could, why this award should not be entered up as the judgment of that court; and the case was continued. Before the next trial-term of said county court this amendment of our constitution was adopted and this 25th section went into operation. After it went into operation, on Febuary 9, 1881, the clerk of the circuit court of Pleasants county issued the summons required by this last order of the county court of Pleasants county making it returnable to the first day of the next ferm of the circuit court of Pleasants county. This summons was duly served on all the parties; and they appeared, neither of them making any objection to the jurisdiction of the court, to hear and determine the matters in controversy.

The legislature of West Virginia on February 11, 1881, passed an act concerning the county courts (chapter 5 of Acts 1881), the 10th section of which was in almost the identical language of this 25th section of article VIII of the amended constitution. The plaintiff in error by her counsel insists,

that till after the passage of this act the clerk of the circuit court of Pleasants county had no authority to issue the summons, which he issued on February 9, 1881. It seems to me clear, that he had precisely the same authority to issue this summons on February 9, 1881, that he had to issue it after February 11, 1881. This 10th section of the Acts of of February 11, 1881, being in almost the identical language as the 25th section of article VIII of the amendment of the constitution could confer on the clerk of the circuit court no other or different powers in this respect than had already been conferred upon him by this amendment of the constitution. But even if it were otherwise, the fact that the parties to this suit appeared in pursuance of this summons and made no sort of objection to the hearing and determining of the cause by the circuit court of Pleasants, which actually did hear the case on its merits after the introduction of new evidence touching the merits of the matters involved in this summons, is, it seems to me, a waiver of all objections. to the jurisdiction of the court, and no such objections can now be urged in this Court. This too is a sufficient answer to the objection, that no formal order was made docketing this case in the circuit court of Pleasants, even if such a formal order would otherwise have been deemed necessary, which I can not think it would.

These preliminary questions being disposed of, let us now consider, whether the circuit court erred on the merits of the case. And first, did it err in overruling the excep

tions of the defendant below to the award? It was decided by this Court that "an attorney at law, as such, has no authority before or after the institution of a suit to make an agreement in pais to submit his client's cause to arbitrators, though he may, if his client's are adults, consent in open court to submit their cause to arbitration; and if they be adults, they will be thereby bound." (In Grimes v. Curry, 13 W. Va, 30, syllabus 2). Was the alteration made in this case on August 31, 1880, by the memorandum signed by the counsel of the parties a change in the whole tenor of the submission made solely by the attorneys of the parties as such; and did they in so doing exceed their authority, as they would have done, had they on the 31st of Ausust, 1880,

agreed to a submission of the matters in controversy without the express or necessarily implied assent of their respective clients resulting from their conduct, had no previous submission been made in open court on May 12, 1880?

There are two Virginia decisions which throw light on this question. The oldest, Shermer v. Beale, 1 Wash. 11, was a chancery suit, in which an order was made by counsel referring all matters in difference between the parties to the final determination of two arbitrators, and in case of their disagreement to such umpire as they should choose. Afterward the parties signed a written agreement authorizing the arbitrators to appoint a third person to assist them in forming and making up the award. An award was made up and signed by the three. The Court of Appeals decided that it was proper for the court, unless cause could be shown against it, to enter up a decree in pursuance of this award. In Manloor v. Thrift, 5 Munf. 493, which was a common law suit, by an order of the court the parties referred the matter in controversy to John Pegram and Thomas Thweatt, whose award was to be made the judgment of the court. The parties afterward signed an agreement substituting as an arbitrator Edward Pegram in lieu of Thomas Thweatt, who refused to serve, agreeing that their award should be entered as the judgment of the court. Their award, which set out that they had heard the parties, was returned to the court. The circuit court refused to enter up a judgment pursuant to this award. The court of appeals said that this was clearly an error on the principles settled in Shermer v. Beale, 1 Wash. 11.

In Browning v. McManus, 1 Whar. Pa., an arbitrator was substituted in place of one who refused to serve. In the absence of all contradiction by the record the appellate court presumed that the defendant was present in person or by counsel and consented to the substitution. The record simply stated that one of the referees "being unable to attend on account of indisposition, another" (naming him) "was appointed."

The case of Lattimore v. Martin, Addison's Reports, (cases in county courts of fifth circuit and in the high court of error and appeals of Pa., in year 1791) is very similar to