The opinion of the Court was delivered by

The errors assigned seem to present only three questions at most. First, Was A. J. Lewis a competent witness for the defendant below, now the plaintiff in error ? Secondly, Was the Court below correct in advising the jury to lay the guaranty and the award of the arbitrators out of view, as having no bearing on the issue between the parties in this action ? And, third, Did the Court withdraw, in their charge to the jury, any matters of fact from the decision of the latter, that were material to the issue, and might have been found from the evidence to have existed ?

As to the first question. Unless it appeared that A. J. Lewis had a direct and certain interest in the event of the cause, or an interest in the record, for the purposes of evidence, he ought to have been ^admitted by the Court below, as a competent witness. 1 Stark. Ev. 20, 21. Or if it' seemed to be eyen doubtful, whether he had such an interest or not, still his *607evidence ought. to have been received, and referred to the jury, leaving it to them tq decide, what credit was due to it, after taking into consideration all the circumstances of the case, and the motives by which he might have been influenced. Ibid. As to a direct and certain interest, it certainly does not appear that he' had any in the event of the cause. He was not to gain or lose by the verdict, whatever it might be. Neither am I able to perceive, that the verdict and judgment could impose any new liability upon him; nor yet extend, diminish or remove any liability previously created. The award of the arbitrators, if good and binding, settled the extent of Lewis’s liability to .the plaintiff below; and the verdict in. this case could not alter this liability under the award, nor change the effect of it. But it is said that the award is not good, because not made by the two arbitrators chosen first, in pursuance of the written submission; but made by a third person as an umpire, the two first chosen not being able to agree. It is plain however from the evidence, that the umpire was ■ called in by the parties to the written submission; and though done verbally, without any agreement being reduced to writing for the purpose, it is in effect as good and binding on the parties, as if it had formed part of the original submission, and been introduced into it. Eor aught therefore that appears, the award must be considered good and binding upon the parties to the submission, in pursuance of which it was made. Nothing but corruption or partiality on the part of the arbitrators, could be considered sufficient to annul it. But this is not even pretended to have been the case. Nothing therefore but payment or satisfaction of the amount of i.t, can relieve or discharge Lewis from his liability under it: and it is equally clear that no recovery can,be had in this action, which can in any way increase his liability beyond the amount of the award. Hence the verdict and judgment, as evidence, cannot either afford him relief, or increase his liability. "We therefore think, that the Court below erred in rejecting him as a witness for the defendant below.

The two remaining questions being connected with each other, will bfe .considered together.

From the record, it appears, that the claim of the plaintiff below, is founded upon a breach of a special warranty, alleged by him to have been made by the _ defendants, in the sale of goods by the latter to the former; or, in other words, that- the goods sold, were represented at the time, by the defendants to the plaintiff, as corresponding with a sample thereof, exhibited by the defendants to the plaintiff, which has failed to be the case; whereby the plaintiff below has been injured and sustained damages which the defendants refuse to make good. On the trial, it would appear, that evidence was given by the plaintiff, tending to prove such warranty, and a breach *thereof. And from the evidence given in regard to the ment made by Lewis Co., the jury might very well have come to the conclusion, that they guaranteed the special warranty made by the defendants below, to its fullest extent, and nothing beyond it. In short, that they agreed to become sureties to the plaintiff, for the defendants, that the latter would fulfil and perform the warranty made on their part to the plaintiff. It would also appear from the evidence, that the last note given by the plaintiff to the defendants, for the residue of the price of the goods sold and warranted, was given and accepted by the defendants, and the money thereon received by them after the guaranty made by Lewis & Co.; and as it likewise appears, that the plaintiff made some difficulty about giving the note, until he had obtained the guaranty of Lewis & Co., who acted in the transaction generally as the agents of the defendants, the jury, in the absence of other evidence tending to. disprove the fact, would have been justified in drawing the inference, that this last note was given by the plaintiff upon the faith of the guaranty of Lewis & Co.; and with this knowledge the defendants having-received the note, and the money as it fell due upon it afterwards, thereby approved and confirmed all that was done in this respect by Lewis & Oo.; consequently, the defendants would stand precisely in the same relation to both the plaintiff and Lewis & Co. in respect to the guaranty, as if it had been entered into at their previous special instance and request. If such were the facts of the case, then I am inclined to think, that the award was not altogether irrelevant to the issue; but might properly be considered as prima facie evidence, though not conclusive, of the extent of the defendants’ liability to the plaintiff. And if the amount of the award had been tendered to the plaintiff, and received by him, before this suit was commenced, I do not see how he could maintain it. And even supposing that he had refused to receive the amount upon its being tendered, I am not satisfied but it would have precluded him from recovering more in this action, had the facts been pleaded and the money been brought into Court; because neither multiplicity nor circuity of actions are to be favoured. Under this view of the case, I am rather inclined to think that it ought to have been submitted, as a question of fact, to-the jury, to be decided by them, from the evidence, whether the defendants had not, at least, approved and ratified the guaranty, and thus connected themselves with the plaintiff and the award in regard to it; and as the award, therefore, ought to be taken at least as prima facie evidence of the *608extent of their liability, whether, under all the -circumstances of the case, they ought to be made liable to the plaintiff for any greater sum. The judgment must therefore be reversed, and a venire de novo awarded.

Judgment reversed, and a venire de novo. awarded.

Cited by Counsel, 1 Barr, 51.