majority"> Shepherd, J.:

In the course of the trial the defendants offered in evidence the deposition of R. M. Jeffreys. It appeared that no notice was ever given to the plaintiff, and that the deposition had not been passed upon by the Clerk as provided in The Code, §1357. His Honor very properly refused to admit it, and the defendants’ exception in this respect must be overruled.

The defendants asked certain special instructions, which, being refused, are made the subject of three exceptions:

1. “That if the jury believe that the submission was to two, with leave to select a third only in case they disagree, then the award is void.” This request was based, we suppose, upon the testimony of R. T. Crews, one of the arbitrators, to the effect that Mr. Plays, the umpire, was appointed before they commenced the investigation, or had any disagreement. The refusal of the Court to give the instruction- is fully sustained by the case of Stevens v. Brown, 82 N. C., 462, where it is said that “it matters not at what time during the progress of an arbitration the umpire is appointed. It is within the discretion of the arbitrators to appoint him before or after disagreement. Where the submission to the award of two persons authorized the appointment of an umpire by them if they disagree, it was held they might choose an umpire before they entered upon the inquiry.” Bates v. Cooke, 17 E. C. L. Rep., 407. The defendants’ *246 counsel, however, takes the distinction that, while the umpire may be appointed before disagreement, he has no right to act until a disagreement occurs. If the latter had no right to act, his joining in the award did not vitiate it. “ The award in our case is either the award of the umpire or the award of the arbitrators. Take it either way, and it is good. If the appointment of the umpire by the arbitrators was proper at the time he was chosen, then it was his umpirage, and their joining with him will not vitiate, for a mere stranger may join in the award or umpirage without invalidating the proceeding. But if, on the other hand, the arbitrators had no right to choose an umpire before disagreement, then it would be their award, and the fact of the umpire’s joining in it would not vitiate it.” Stephen v. Brown, supra.

2. “That the submission being under seal, the selection of the umpire must be under the seal of the arbitrators.” This was not required by the terms of the submission, and, we think, was unnecessary. “ At all events, it is too late to interpose that ground after the award is made ” (Knowlton v. Homer, 30 Maine, 552), and especially is the party estopped where, as in this case, he has partly performed the award. Morse on Arbitration, 274.

3. “That the bond sued upon is void.” It must be admitted that the bond is very inartificially drawn, but the context clearly shows the character in which the parties signed and their respective liabilities. This is unlike the case of Osborne v. Colvert, 83 N. C., 365, because, there, all of the contending parties were obligees, [obligors] and all were answerable for the default of each, so that the person to whom any sum might have been awarded would himself have been liable for its payment. The bond in our case shows very plainly that the defendant signed as surety for R. M. Jeffreys, the condition being that said R. M. Jeffreys should abide by and perform the award. The exception is without merit.

*247 4. The remaining exception is that the arbitrators should not have considered the item of $545.76, that being the result of a settlement for the year 1885, and not being a matter in “ dispute.” We cannot give the terms of the submission such a restrictive meaning. The articles of submission recite that, “ Whereas, matters have arisen between Mrs. B. J. Bryan and R. M. Jeffreys, * * * touching the amounts and sums due between them on account of the rental of the Governor Bell place, * * * which said matters they are unable to settle and decide between themselves: * * * Now, therefore, all matters in dispute are hereby referred,” &c. The balance, $545.76, due Mrs. Bryan for the year 1885, was left in the hands of R. M. Jeffreys to be accounted for bj7 him, and it was clearly necessary for the arbitrators to consider it in order to arrive at the “ amounts and sums due between them.”

Upon examining the whole record, we have been unable to perceive any error in the rulings of his Honor, and the judgment, therefore, must be affirmed.

Affirmed.

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