The court are of opinion that the plaintiff is entitled to judgment on his verdict.

1. It was objected at the trial, though not urged at the argument, that the arbitrators exceeded their authority by choosing an umpire before they proceeded to examine the case. Assuming that such was the fact, it is clear that the objection is of no avail. Kyd on Awards, (2d ed.) 87; Watson on Arb. 58; Bates v. Cooke, 9 Barn. & Cres. 407; Van Cortlandt v. Underhill, 17 Johns. 405.

2. It is now objected, that the award is void, because the arbitrators have not therein said, as required by the submission, what deduction should be made from the sum which, by the terms of the building contract, the defendant had engaged to pay to Norcross for completing the building; and Houston v. Pollard, 9 Met. 164, is relied on to sustain this objection. But the decision in that case is not applicable, because the arbitrators, in the present case, by finding the balance which was due to Norcross, have also necessarily found what deduction should be made from the sum named in the building contract. The sum found due to Norcross, as a balance, shows the amount of such deduction as clearly as if the arbitrators had expressly stated the sum which they deducted.

3. The testimony of the two arbitrators who were called by the defendant, so far as it tended to impeach the award, was inadmissible. Withington v. Warren, 10 Met. 431. And it was treated as of no legal effect, in the instructions given to the jury.

4. Upon examining the conditions of the two arbitration bonds, the court are of opinion that the payment tc the lefendant of his costs in the trustee processes is not a *322condition precedent to his obligation to perform the award. The purpose of the parties seems to have been nothing more, than to fix the amount which the defendant should pay, and to secure him against a double liability therefor; namely, one on the award, and another on the trustee processes. But his liability on the latter was ended by the assignment of Norcross’s estate, under the insolvent law, whereby the attachments under those processes, as well as other attachments of the insolvent’s property, were dissolved. Whether the defendant has any remedy for the costs to which he would have been entitled, if the estate of Norcross had not been assigned, we have no occasion to decide. We merely decide that he has not a remedy by way of defence to the present action. He did not file any claim to these costs, in set-off, but he proceeded to trial, insisting, as he did when performance of the award was demanded in pais, that allowance of those costs was a condition precedent to his obligation to pay the sum awarded by the arbitrators. In this he mistook. Judgment on the verdict.