
    GENERAL COURT,
    OCTOBER TERM, 1802.
    Goldsmith’s Adm’r. vs. Tilly.
    Evetfy ground of relief in equity again,tan award is equally open at law* on motion,in a summary way.
    Misbehaviour of the arbitrators; or legal objections oir a palpab >e mistake in law or fact* apparent on the face of an award, are the only ground , for set» ting it aside
    The merits of an award cannot be inquired jintp
    Debt on a deputy collector’s bond. This cause Was at a prior term referred-in the usual manner to two arbitrators, with authority, if they differed, to call in a third person. The arbitrators did differ, and in pursuance of the terms of the reference chose a third person. The umpire, and one of the original arbitrators, with whom he agreed, returned an award, in which they stated that due notice had been given to the parties of the time and place of meeting of the arbitrators; and that differing in opinion, they chose an umpire, who, in conjunction with them, after having first considered the evidence adduced by the parties, who were present, and agreeing in opinion respecting the same, the umpire and one of the arbitrators, awarded that judgment be entered for the plaintiff against the defendant for the penalty of the bond on which the action was brought, and costs; to he released on the payment of a certain sum of money with interest thereon, &c. and costs.
    The defendant, by his counsel, entered a caveat oxi the award, and assigned the following reasons:
    1. Because the umpire, or third person called in, did not examine the whole matter in dispute; but formed his opinion from a partial consideration of the subject.
    2. Because the defendant had no notice of the meeting of the two persons who have signed the award»
    
      3. Because the arbitrators acted against law anil justice in allowing to the plaintiff against the deten» dant, a sum of money, illegally directed to be levied by the levy court of «ímie Arundel county.
    4. Because they awarded a sum of money to the plaintiff against the defendant for the non collection of an illegal assessment.
    
      5. Because there evidently appeared nothing due from the defendant to the plaintiff, unless on account of the illegal assessment directed to be levied by the levy court aforesaid.
    iJohnson, for the defendant,
    contended that the umpire should have investigated the whole subject matter, and that he could not proceed on the report of the two arbitrators as to what was the evidence in the case. That he could not award partially. ICyd on Awards, 63. Tillará vs. Fisher, (3 Harr. & Ahílen. 118.) That notice ought to have been given to the parties by the umpire, for in the case of Selby vs, Gibson in this court, the award was set aside on tins ground. It is true that Gibson, the defendant in that case, was not present; hut there was no notice of the appointment of the umpire, nor of the meeting of the arbitrators and the umpire. The arbitrators here awarded upon the subject of an assessment illegally imposed by the levy court; for the plaintiff, as one of the sureties of the collector, his intestate, was released from paying the very money which he now claims of the defendant, because that assessment was illegal, (Quynn vs. The State, ante 36;) and if the arbitrators had not taken into consideration that assessment, they could not have awarded in favour of the plaintiff.
    
      An awftvrt set aíárie and the Sause reins fated, Where the original arbitrators, after reducing the evidence to writing, disregard and chose a third person, to whom the evidence, so reduced to writing, was delivered, and the award made; and it not appearing that the party, against whom the award Was made, had notice of the time of meeting of the new arbitrator, nor wa s he present.
    
      
      Martin (Attorney General,) and Shaaff, for the plaintiff.
    In the case in Ktjd 63, the umpire alone was to award; but in the present case the arbitrators, if they differed, wore empowered to choose a third arbitrator, agreeably to the established usage of the courts in this state, and the arbitrator so appointed, and one of the other arbitrators, are to award — the person chosen is not to award alone. The court can», not travel into the merits of the award. Whether a part of the collection, therefore, was correctly made or not, is wholly immaterial. The defendant, being present, waived the necessity of notice, and of the new arbitrator’s going into an investigation of the whole subject. But the case of Selby vs. Gibson was decided on the very ground that notice had not been given to Gibson, who did not attend.
    
      
      
         Selby vs. Gibson, in the General Court at May tern», 7801 li was an action oi' trespass, which.by consent of the parties was referred to John Callahan and Nicholas Harwood, Esquires, with power, in case of disagreement, to choose a third person, &c. in the usual manner. At May term 1800, an award was returned and signed by Nicholas Harwood and James Disney, in the following words: «In pursuance of the above order of reference, we hereby certify to the judges of the general court, that after hearing and examining the evidences of both plaintiff and defendant in the above cause, and the parties being present, the said John Callahan and Nicholas Harwood could not agree, hut differed in opinion; and in virtue of the power vested in them by the order, they chose the subscriber, James Disney, as a third person. We Nicholas Harwood and James Disney, after examining the evidence aforesaid, in the presence of Mr. Collar han one of the original referrees, and fully considering all cir-. cumstances in the ease, do award that the defendant John Gibson, pay to the plaintiff, Joseph Selby, the sum of fifty pounds current money, the damages by us aivarded in the said action of trespass, and the costs of suit. Given under our hands and seals this 10th. of June.1800 ”
      A caveat was entered by the defendant against the award, an.il the following reasons were assigned why judgment should not be, entered thereon:
      1. Because James Disney, the third person said to be chosen by the original arbitrators, never heard any evidence adduced by-either party, and joined in the said award without any testimony.
      2. Because after the appointment of thesaid James Disney, he. together with the other arbitrators, or one of them, met without giving any notice to the defendant o.f th.e time- c>f meeting, by which means the defendant was deprived of an opportunity of jnaking his defence before the said James Disney
      
      Messrs Callahan and Harwood were examined as witnesses by the court, and it was proved that Mr. Callahan, as one of the arbitrators with Mr. Harwood, in presence of the parLies, reduced, to writing the whole of the evidence taken before them while they acted as arbitrators; that on their disagreeing, they chose Mr. Disney; that the evidence, thus reduced to writing, was delivered to Mr Disney; that Mr Harwood and Mr. Disney agreeing in opinion, made'the award The witnesses were not certain that the defendant had a knowledge of the day fixed on for the meeting of Mr. Disney with them as arbitrators; they think the defendant said he had additional testimony, but none was taken; »or did the defendant attend on the day the award was made.
      The Court set aside the award, a.nd reinstated the cause.
      
        Key and John son, for the Plaintiff.
      
        Martin, (Attorney General,] and Skaaff; for the Defendant^
    
   Chase, Ch. J.

delivered the opinion of the court» Every ground of relief in equity against an award,, fs equally open in this court, upon motion, in a summary way, 3 Burr. 1258, 9.

The court will not enter at all into the merits of the matter referred to arbitrators; but only consider such legal objections as appear on the face of the award, and such as go to the misbehaviour oí arbitrators. 2 Burr. 701. Adj. Ca. 109.

A palpable mistake in law or fact, is good cause to set aside an award, if it is apparent on the face of the award. 1 Vern. 157, 3. 2 Vern. 705. 3 Atk. 644. 1 Atk. 64. 1 Ch. Rev. 76. Brownl. 63. Cro. El. 904, 1 Rol. Ab. 251.

The court will not unravel the matter and examine into the justice and reasonableness of what is awarded. 1. Stra. 301. Adj. Ca. 105.

Judgment entered on the award.  