It is conceded by both parties that the award is void so far as it relates to costs, because the submission did not give power to the arbitrators to award them.

The court are of opinion that it is also void so far as it relates to the costs of the criminal prosecution then pending against Brown for larceny. The submission recites that, whereas there are matters in dispute between the parties in regard to the carrying on of the cultivated land of Brown, they agree to refer the whole matter in dispute between them and also all accounts now outstanding between them. But although the prosecution against Brown for larceny was upon the complaint of Harrington, and the produce and barrels which he was charged with having stolen were connected with the farm, yet the prosecution was in behalf of the Commonwealth, and the liability of Brown for costs was not to Harrington, nor had Harrington any control over the costs of the prosecution. The prosecution was still pending, and it would be against public policy to permit these parties to settle the question of liability as a private question between them. The submission is not therefore to be construed as including such a matter, and the award is void as to those costs.

This portion of the award being void, it remains to be considered whether any part of it can stand. The sum of $165.74 is awarded to Harrington in settlement of all accounts and matters of dispute between them, except that when Brown shall pay to Harrington this sum he is authorized to retain and keep back therefrom ten dollars and three cents as the contribution of said Harrington to the costs of the complaint against said Brown *581It does not clearly appear whether or not the arbitrators would have awarded to Harrington so large a sum as they did, if they had not authorized Brown to make this deduction from it. We cannot, therefore, say that these two sums have no connection with each other, and set aside the award as to the $10.03 while we affirm it as to the $165.74. If then the plaintiff desires judgment, he should remit the $10.03. If this sum is remitted, the award should be regarded as valid for $155.71, because all the other sums awarded are independent of it.

Exceptions overruled, if plaintiff will remit $10.03; otherwise exceptions sustained.