
    John Walker v. The City Council of Charleeton.
    Commissioners mutually appointed by the owner, and the City Council of Charleston, under the Act of 1817, to value a lot of land taken to widen a street, are governed by the rules which apply to arbitrators: and where the owner consented to the appointment of an umpire, on the condition, that all of the commissioners on his part should be present at the examination by the umpire, which was agreed to by the commissioners on the part of the City Council; and the umpire decided after hearing only one of the commissioners on the part of the owner, and in the absence of the two others; held, that the award was not binding on the owner.
    The Court of Equity possesses jurisdiction to give relief, where the owner has conveyed his property to a corporation, for public purposes, in the confidence of receiving a compensation, which the corporation has failed to make.
    , , vide Aetsi I8i7,p.38.
    Heard by De Saussure, Chancellor, at Charleston, May, 1829.
    This was a bill to obtain compensation for a lot of land, and the buildings thereon, of which the complainant was the proprietor, which had been taken by the City Council of Charleston, for the purpose of widening Berresford’s Alley in the city of Charles, ton, in pursuance, and by virtue, of the powers vested in them by the Act of 1817. Three commissioners were nominated by the ^ City Council, and three others were nominated by the complainant, to value the lot, pursuant to the provisions of the Act. The commissioners on the part of the city valued it at $2,000, only, w^st t'10813 on tbe part of the complainant assessed the value at $4,000, and being unable to agree, an umpire was appointed ; but the bill charged, that this appointment was assented to by the com. P^a*nallt:) on the express stipulation, that all of his commissioners should be examined by the umpire, previous to his making a decision. The umpire confirmed the valuation of the commissioners on the part of the city ; but only one of the complainant’s commissioners was examined by the umpire. ■ This commissioner, however, stated, at the time of the examination, that he represented the others ; and they were therefore not even notified to attend before the umpire. The complainant being called upon to execute a conveyance of his lot to the city, on being tendered the valuation fixed by the umpire, refused to do so, on the ground, that he was not bound by that valuation, and that he would appeal to the Courts for redress; but he eventually consented, on being informed by the Intendant of the city, that it would not impair his right to legal redress, if he had any, and he accordingly executed a conveyance upon receiving the suns tendered. He immediately afterwards filed this bill, praying compensation, and that an issue at law might be ordered to assess the damages, which he had sustained.
    The answer of the City Council stated, that their proceedings in relation to the widening of Berresford’s Alley, and the compensation to the complainant for his lot, had been in strict conformity to the provisions of the Act of 1817; and they submitted that the valuation, which had been confirmed by the umpire, was conclusive under the Act, and that neither this, nor any other Court, possessed jurisdiction to extend, or diminish it. They denied the right of the complainant to annex any stipulation, or condition, to the appointment of the umpire; and alleged that, in point of fact, there was no such stipulation, as was charged in the bill, but a mere declaration of the complainant’s intention, to insist upon all his commissioners being examined by the umpire : which was cheerfully conceded at the lime, and would have been fully executed when the examination occurred, if the complainant’s own commissioner had not dispensed with it. They insisted, further, that the complainant had, in reality, sustained no injury from the absence of two of his commissioners, as their views were fully explained by the' commissioner who was in attendance: and that, moreover, these views could not have had any just weight with the umpire, as they related to compensation which these commissioners supposed that the complainant was intitled to, for a diminution of the rents of his buildings, for several years, during which it was rumored, that the Citv Council intended to widen Berresford’s Alley, before they actually resolved to do so; in consequence of which, the complainant, it was said,-was unable to procure permanent tenants, or to obtain the previous rents : whereas it was insisted, that the complainant was lawfully inthled to no other compensa, tionfthan the actual value of the land and buildings, at the time when they were taken for the use of the city. The defendants further insisted, that the complainant was estopped by his conveyance to the city from now questioning the valuation made by the umpire, of which the conveyance was a recognition, and the exe. cution of his award; and they submitted, that no expression of •opinion by the Intendant, or other city officer, could avoid the legal effect of this recognition, or bind the City Council.
    The cause being at issue, Thompson, Chancellor, in May, 1827, on motion of the complainant, ordered an issue at law, to ascer-. tain the damages sustained by him, as preliminary to a hearing. An issue was accordingly made up, on which the jury rendered a verdict for the complainant, for $2,112. And the cause now came on for hearing, upon a motion to enter a decree for the complainant, for the amount of the verdict.
    De Saussure, Gh. it would, perhaps, have been more regular, to have argued the question of jurisdiction, and to have tried, and decided the right of the complainant to relief in this Court, before ordering an issue at law to ascertain the amount of his damages. In the course which has been pursued, the equities of all the parties must be regarded as having been reserved : and indeed the whole merits have been gone into, at the present hearing; all the evidence in relation to every part of the case has been adduced ; and the cause has been very ably argued on both sides. I shall, therefore, consider the questions involved in it, as altogether unembarrassed by any conclusions from the order directing the issue at law.
    It is contended in the first place, that the Court will not take cognizance of such a cause ; in other words, that the Court has no jurisdiction. But I cannot doubt the competency of the Court to give relief in a case of injustice ; although, as in this case, it has been unintentionally committed, under misapprehension, by respectable gentlemen. It would be strange, if this Court could not give relief, when, as it appears from the evidence, these gentlemen regret the injury they have done ; and especially too, when it is to open an award,’ or a report of commissioners similar to an award, on the ground, not merely that injustice has been done, but that ^le terms! UP011 which the umpire was called in, were not complied with.
    Dr. Joseph Johnson, one of the commissioners on the part of the Council, and one of the most respectable citizens of Charles, ton, expressly states, that it was the agreement of the commissioners on the part of the City Council, of whom he was the chair, man, that all Mr. Walker’s commissioners should be present at the examination by the umpire, Mr. Dawson ; and that this was required by Mr. Walker, as the condition of his assent to the appoint, ment of the umpire. But only one of Mr. Walker’s three commissioners did attend on the umpire ; the other two not being even notified, as they testify. It is indeed stated by Dr. Johnson, that Col. Magwood, who did attend, on the part of Mr. Walker, said he represented all the commissioners; but, in my judgment, he was not at liberty to dispense 'with the express requisitions of Mr. Walker, that all his commissioners should be present to represent his case, and explain the grounds of their valuation to the umpire.
    On this ground, I think that Mr. Walker is intitled, in equity, to open the return of the commissioners, and I am glad that he is so intitled, because it does appear to me, to be clearly established by the evidence, that injustice was done him by too low a valuation of his lot; although this was altogether unintentional on the part both of the commissioners, and the umpire, who acted with the purest good faith, but were unquestionably mistaken. That they were mistaken, is proved by the testimony of Mr. Roche, Mr. Peronneau, Mr. Rouse, and Mr. Geddes, as also by that of Mr. Payne, and Col. Magwood. Dr. Johnson, one of the city commissioners, who made the low valuation of $2,000, afterwards regretted it, and signed a petition to Council for the relief of Mr. Walker. The four first named witnesses testify to the injury sustained by Mr. Walker, in the deterioration of the value, and income of his property, from the dilatory proceedings of the City Council; and although this is not a distinct ground for relief in the present suit, but rather the ground for a claim in another shape, yet it- should have coustituted a strong motive for allowing a liberal compensation for the property thus deteriorated. I hold it to be a sound principle, that whenever the property of the citizen is taken from him compulsorily, for public purposes, there ought to be not merely a reasonable, but an ample and a liberal compensation. Now, that the valuation of Mr. Walker’s land was not even a just compen. sation, appears from the testimony of the far greater part of the witnesses, as well as from the other facts in evidence. Mr. Walker purchased the property in 1806, for $6,000; and he received a regular rent of $400, per annum, until the measures of the City Council deteriorated the property. In 1819, or 1820, it was proved, that he was offered $4,500, for the house and lot. And in addition to all, we have the verdict of the jury establishing the correctness of the opinion of the witnesses. I repeat, therefore, that I am well satisfied, that there is not any ground, on which this application to the justice of the Court can be refused, notwithstanding the return, or award, of the umpire.
    
      vide L. C. and C R. R, Company v. Chappell, Rice’s Rep. 333.
    I do not know, that it is necessary, that I should examine fully, the argument of the counsel of Mr. Walker, that the State cannot delegate to any corporation, the right of taking away private property for public purposes, without compensation, and that a full compensation, such as a jury would give. This objection is founded on the constitutional maxim, that private property should not be taken away but by the verdict of a jury, or by the law of the land; which does not mean any ordinary act of legislation, but the lex terra, as it is technically understood by the Courts. If I were to enter upon this question, I should be disposed to agree, that the creation of a board of commissioners to value the land of the citizen, taken for public purposes, without the intervention of a jury, does not come within the lex terra; and that the citizen is not bound by it, unless he voluntarily submits to it. There may be an exception under the general road-making power, founded on the usage of the country from its first settlement. I do not, however, enter into the discussion of this question, because it does appear to me, that as Mr. Walker made no objection to the mode of valuation directed by the Act of 1817, he voluntarily submitted his rights to the commissioners under that Act. In making this submission, however, he had a right to stipulate, and did stipulate, that on calling in an umpire, all his commissioners should be present; and this was not done, but two of them were not notified. It is true, that this was after the commissioners had disagreed ; but he might have withdrawn his submission, even then, if his stipulation had not been agreed to. I think, therefore, that if the Chancellor had heard the case upon its merits, he would have done right to order the issue. It does not appear indeed, that any objection was made to it by the defendants. It was acquiesced in without opposition, or condition ; and it might well be argued, that the City Council is as much bound to abide by that acquiescence, as Mr. Walker was to abide by his submission to the mode of valuing his land, although it did not follow the rule of the constitution. The issue bas been tr'e^’ ar)d not one wor^ of argument ha9 been urged against the justice of the verdict, which was in conformity to-the weight of evidence, as well as to the opinion even of some mem. bers of the CounciL
    .One other objection remains to be examined. It was insisted, that Mr. Walker is precluded from relief by his having'signed the conveyance to the City Council, and received the sum of $2,000, assessed by the umpire. It is true that he did this, but it is in proof, that he at first refused it, stating that he meant to seek legal redress ; and it is also in proof, that he did not depart from this resolution until he was assured by the Intendant, that his performing these acts should not injure his claim to redress. It was urged, however, on the part of the defendants, that the Intendant could not thus do any act binding on the City Council. This objection has weight, but I am sorry it has been made. It lias been said that corporations have no souls, and consequently no consciences, and this seems to be an instance of it : for certainly the honorable gentlemen who constitute the City Council, would not, in their individual character, be guilty of any thing inconsistent with fair dealing; arid yet, in this instance, they have,in^their corporate capacity, taken aground, which I cannot think reconcileable with it. Undoubtedly, they regard it as their duty, and in this instance a painful one, to protect the public property, of which they are guardians, by every legal defence. But the rules of fair dealing are legally applicable to corporations, and they are as much bound to regulate their acts, and govern all-their transactions by these rules, as natural persons. Strictly speaking, neither the Intendant,-nor any of the Wardens, can bind the City Council, of which they are component parts, without formal acts of Council ; and regularly not without the seal of the corporation : but in practice, nine tenths of the transactions of the city are performed without the seal, and by their officers acting individually. The Court, at least, can say, that the City Council shall not have the benefit of the acts done by Mr. Walker, unless it accedes to the terms which were proposed by him as the condition of his acts, and which were accepted by the officers of the city. Acts and engagements to be binding must be mutual j and if the City Council has a right to disavow the acts of their principal officer, they ought not to be permitted to take advantage of the acts of the other party done, expressly, on the faith of the acts and assurances of that officer; Mr. Walker has the right to be placed in the same situation in which he was before he was Misfed ; and this would remove the objection to his relief, which we are now considering.
    Upon the whole, 1 am satisfied, that justice has been done by the verdict rendered on the issue at law, and that it ought to stand; and it' is therefore ordered, and decreed, that the complainant have leave to enter judgment for the amount of the verdict, and to enforce the same. The costs to be paid by the City Council.
    From this decree, the defendants appealed, and at the present sitting of the Court of Appeals, moved that the same might be reVersed.
    Axson, City Attorney, for the motion.
    It is a mistake to say, that there was any stipulation for the examination of the complainant’s commissioners by the umpire. The complainant insisted that they should be examined, and this was readily acceded to by the city commissioners. They had in fact no right to object to it. But it was the duty of the complainant to bring his commissioners before the umpire, and this he failed to do, as to two of them; and not only so, but the one who did attend, stated that he represented the others, and, as appears by the umpire’s report, did explain their views most fully. The complainant had no right to make any stipulation, as the condition of his assent to the appointment of an umpire. Under the Act of 1817, he was bound to assent; and if he had refused to join in the appointment, it would have been made without his consent, and he would have been concluded by the decision of the umpire so appointed.
    But it is contended, that the Act of 1817 was not binding upon the complainant, except so far as he has submitted to it; for that the Act is unconstitutional, in so far as it authorizes private property to be taken for public purposes, without a compensation to be assessed by a jury. The only provision of the constitution relied on, however, for the support of this position, is that part of the 2nd section, 9th article, borrowed from Mqgna Charta, which dedares that no freeman shall be disseized, &c., “ but by the judgment of his peers, or by the law of the land.” But the exception to this restriction is two fold, and to render the clause available to the purposes of the argument, it is necessary to strike out one of the alternatives, and obliterate the important exception expressed by the phrase, “ or by the law of the land.” This cannot be done, and then the question arises, what is the law of the land ? For the answer we must look to the constitution ; the 1st section, of the 1st article, of which, declares, that “ The legislative authority of this State shall be vested in a general assembly, which shall cons‘sl: a Senate and House of Representatives.” Here thfiSE *s ^e authority to make and declare the law; and although the1 exercise of this authority is subject to the restrictions, imposed by Paramount authority of the constitutions of this State, and of the United States, yet an act of the legislature, which does not conflict with either, is most unquestionably “ the law of the land.” The idea of a lex terra of a different origin, and paramount au« thority, is unknown to the constitution, and is in itself somewhat unintelligible.
    This construction of the constitution has been recognized in practice ever sinee its adoption, and that in regard to this very matter of taking private property for public purposes. Lindsay v. Commissioners, 2 Bay, '38. Patrick, and Manigault v. Commissioners, 4 M’C. 541. In the latter case it was held, that the State may take private property for public purposes, without compensation; and a fortori, if compensation is allowed, the State may adopt any mode of assessing it.-
    If the Act of 1817 is constitutional, then the decision of the umpire, which has been made in conformity to the provisions of of the act, is conclusive ; and this Court does not possess a juris, diction to review it. The act gives no such right of appeal, and there is no principle, upon which the question can be withdrawn from the jurisdiction, in which the legislature has vested it. Admitting that fraud would afford a ground for interfering, yet fraud is not pretended ; and to say that there has been injustice done, without charging fraud, is, in fact, to impute mere error of judgment, and that in a matter, to wit, the value of land, about which commissioners are the best, as the legislature have said they shall be, the final, and exclusive judges.
    But the idea of injustice in this case is founded altogether on misapprehension. It is not pretended, that the commissioners, or umpire, have assessed the land below its value ; but Mr. Walker claims, and the jury have allowed, compensation for deterioration of his property, and loss of rent, while Council were deliberating as to the propriety of widening Berresford’s Alley. Now to this he has not even the shadow of a right. He is in truth ir.titled simply to what the Act of 1817 allows ; and that is only “ the true and real value of his lot.” Any thing beyond that is a gift, and it is a gift which the City Council has no right to make, at the expense of the tax paying citizens.
    If, however, Mr. Walker ever had a right to set aside the valuation of the umpire, he concluded that right when he conveyed his land in fee to the City Council. The opinion expressed by the Intendant, or any one else, cannot change the legal effect of the instrument. It is said that this defence ought not to have been set up ; but it would be grossly oppressive upon the citizens of Charles. ton, if they were compelled to make good all losses, sustained by relying on hasty, or mistaken opinions, expressed by their officers, to persons who have no authority to ask for such opinions. If there was a mistake, there was mistake on both sides; and it is very certain that the majority of Council would never have voted Mr. Walker his money, if they had supposed that the payment was to be followed by a law suit. It is submitted, that Mr. Walker is estopped by his deed from denying that he has received full compensation for his land.
    Henry A. De Sausstjre, contra.
    
    It is unquestionable, that Mr. Walker has been injured ; and if his rights have been invaded, he is intitled to a remedy, and that remedy will be furnished by this Court, if there is none at law.
    Admitting the Act of 1817 to be constitutional, and binding, yet if Mr. Walker has been injured by mistake, or accident, in the execution of it, this Court will grant relief. Much more will he be relieved against his own deed on that ground. Pickett v. Log. gon, 14 Yes. 215.
    But the Act of 1817 is not constitutional; for even if the State possesses the power to take private property without compensation, it could not delegate that power to a corporation : and the utmost limit to which the grant of authority, contained in the Act of 1817, could be extended, consistently with the constitution, would be to divest the title of the citizen, upon payment of a compensation to be assessed by a jury. Walker, therefore, was bound by the Act ■only so far as he submitted to it; and the City Council were bound by the terms of his submission. Those terms were not complied with, and the valuation therefore was not binding on Mr. Walker.
    The case is precisely analagous to that of a submission to arbitration ; and it is a well settled rule, that the terms of the submission must be strictly pursued, or the award is not binding. Smith v. Spencer, 1 M’C. Ch. 93. Pratt v. Hackett, 6 Johns. 14. Champion v. Wenham, Ambl. 245. Where arbitrators promised to hear witnesses, but made the award before, the award was set aside. Earl i>. Stocker, 2 Vern. 251. Where the submission was to five arbitrators, and the award was made by four, it was held void. Green v. Miller, 6 Johns. 39, Arbitrators cannot delegate their authority,'and therefore Col. Magwood could not be invested with the authority of the other commissioners. See Lingood v, Eade, 2 Atk. 505.
    Walker then is neither concluded by the award, nor by his own deed ; and if this be so, he is intitled to relief in this suit. An issue at law to assess his damages was, obviously, the most appropriate mode of fixing his compensation ; and no objection was seriously urged against the verdict itself. His Honor the Chancellor, therefore, very properly confirmed the verdict, and for the same reason the appeal from his decree must be dismissed.
    Pettgru, same side.
    Could the City Council have taken Walker’s land without compensation? The public, to be sure, have a right to use the property of individuals for public purposes ; but an adequate compensation must be made. I Bl. Com. 139. Since the case of Patrick, and Manigault v. The Commissioners of Cross Roads, (supra,) the doctrine of Blackstone must, it seems, be taken with some limitation in this State; but, even in that case, it was not decided, that the State can delegate its authority to take private property without compensation.
    The king cannot delegate the exercise of his prerogative. Chitty on Prerogative, 9, 384. And certainly, the power of delegation is not more inconsistent with the analogies of royalty, than with republican principles.
    Public functionaries are trustees, and have but delegatam potestatem,, qua non potest delegari. 2 Inst. 597. The rule extends to all agencies ; and an executor with power to sell cannot sell by attorney. But in no case ought this principle to be enforced more rigidly, than in the exercise of the right of the State to take private property for the use of the public. The legislature holds but a delegated authority to do so, and that authority cannot be again delegated.
    Walker had then a right to compensation, and he had a right to come into the Courts to obtain it. This right is secured to him by Magna Charta, and the constitution ; and the legislature could not deprive him of it by referring him to a tribunal unknown to the constitution. The legem, terra is not whatever the legislature may think proper to declare it. Zylstra v. Corporation of Charles, ton, 1 Bay, 382.
    The road-making power was anciently a part of the royal prerogative, but before it could be exercised, it was necessary that a writ of ad quod damnum should issue. Registrum Erevium, 252, 255. In New York, a similar process issues from the Court of Chancery, whenever private property is taken for public purposes. 2 N. Y. Rev. St. 588. This is however but a re-enactment, of the common law. The writ of ad quod damnum is a common law writ, and secures to the citizen the right of a trial by jury, whenever his property is to be taken from him. And this is the lex terree, which is referred to in the constitution.
    mie2Bailey's Law Rep. 623.
    Walker’s obligation under the Act of 1817 rests therefore entirely upon his assent, which must be taken with all its qualifications ; and it cannot be questioned, that the umpirage was not in conformity to the assent.
    Is he concluded by his deed? He executed it under a mistaken impression of his rights, and this forms a ground of relief, according to the recent decision of this Court, in the case of Lawrence ° .... , . v. Beaubien. Moreover, this mistaken impression was caused by the misrepresentation of the agent of the defendants ; and this added to the inadequacy of the consideration, and other circumstances, furnishes a distinct ground for being relieved from his deed. Astley v. Reynolds, 2 Str. 915. Fox v. Mackreth, 2 Cox’s Ca. 320. Phillips v. Thompson, 1 Johns. C. R. 131. M’Cants u. Bee, 1 M’C. Ch. 390.
    Axson, in reply,
    cited Dunn, v. City Council, Harper, 189, and •Cruickshanks v. City Council, 1 M’C. 360. The right of the State to take private property for public purposes is beyond all question ; and the proposition,'that the authority of the legislature is restricted by the constitution will not bear argument. There can be but one law of the land, and that is what the legislature think proper to make it, unless they infringe the provisions of the constitution; but it is no violation of the constitution to alter the law of the land, in any particular which is not prohibited by the provisions of the constitution.
    It is said, however, that this power cannot be delegated. The answer is, that the State cannot exercise its powers except by agents ; and it is difficult to discover any good reason why a public corporation, consisting of persons elected directly by the people, upon whose rights they are to exercise the authority of the State, may not as properly be selected as agents, as any other person whatever. To say otherwise, would be to deny the right of the State to create a municipal corporation, or indeed to establish any office whatever.
   Harper, J.,

delivered the opinion of the Court.

The very full and satisfactory decree of Chancellor De Saussure in this case, leaves very little to be added. Some of the points that were chiefly argued, do not appear to be really involved *n ^ese respect, the power of the legislature, under the con* stitution, to take the property of an individual for public purposes, without compensation,, or if the'legislature possess such power, *ts au^lor‘ty to delegate it to the City Council ; and the authority of the legislature to appoint any other tribunal than a jury of the country to determine on the compensation. The legislature may certainly propose to any citizen, whose property it takes for public purposes, to join in the appointment of commissioners, or arbitrators, to assess his compensation : and if he accepts such terms, and joins in the appointment, unquestionably he will be as much bound, as if he had submitted to arbitration a matter of litigation with an individual. The act of the legislature of 1817, under which the case arises, provides for this mutual submission, if the party shall be willing to make it. It is only in the event of his refusal, that it makes provision for taking the property without any agency on his part. But the present complainant did accept the proposal of the legislature, and appoint commissioners on his part; and he must therefore be bound by their determination, unless there was some irregularity in their proceedings, which will invalidate it. We do not perceive that the powers of the commissioners in this case differed at all from that of arbitrators in contests between individuals, and we think their proceedings are to be governed by the same rules.

Thus regarding them, we think with the Chancellor, that there was an irregularity which vitiated the award. This was the cir. cumstance, that when it was proposed to appoint an umpire on the terms of the act, the complainant made it a condition of his assent to the appointment, that all the commissioners on his part should be present before the umpire, which was agreed to by the commissioners on behalf of the City Council; but the umpire after, wards went on to hear, and determine the matter, in the presence of only one of the complainant’s commissioners. We agree with the Chancellor, that the commissioner who attended, could not take upon himself to represent those who were absent. The umpire, of course, knew the .terms upon which he was appointed ; and in a legal point of view, it was misconduct on his part to disregard those terms, and proceed without the presence of the other commissioners. This is said, of course, without intending any personal reflection on the individual in question, who appears to‘have b'een a fair and highly respectable man; but we think he misconceived his duty.

In Earl v. Stocker, 2 Vera. 251, it is said, that«in Pitt v. Dawkra, the arbitrators promised to hear witnesses, but making the award before they had done so, the award was set aside. In the case of Smith and Coryton, the arbitrator promised not to make his award until Smith, who was not well, should come abroad, Lord Nottingham, for that reason, inclined to set it aside : but the matter ended by compromise.”

In Walker v. Frobisher, 6 Ves. 70, the arbitrator, after examining witnesses, advised the parties to produce no more witnesses. He stated on oath, that after he bad fully made up his mind, several persons, unattended by the solicitors on either side, mentioned to him circumstances relative to the matter in dispute, of which he took minutes, but told them that he had before satisfied himself; and he stated that nothing that passed had the least weight with him. Lord Eldon said, that although he was a most respectable man, on general principles the award could not stand. A judge must not take upon himself to say what effect testimony improperly admitted had produced on his mind.

When a course of proceedings is prescribed to an arbitrator by the consent of the parties, or he engages to pursue a particular course, which the parties think material to their interest, and which may be material, he is not afterwards at liberty to depart from it. The umpire, in this case, was appointed on condition of hearing, and determining, in the presence of all the complainant’s commissioners : and this was the prescribed rule of bis conduct, to which he was bound to conform. In Spettigue v. Carpenter, 3 P. Wms. 361, the bill was to set aside an award. There were several stated accounts between the parties, but the arbitrator, without regarding them, went on to make out an account in his own way. A few days before the time appointed for making the award, one of the parties sent to the arbitrator desiring to be heard ; but he went on to make his award. The award was set aside, “ for as much as there seemed just reason for the plaintiff to desire to be heard, and it was difficult to assign a reason for rejecting so many stated accounts.” Here the arbitrator’s refusal to conform to the reasonable wishes of one of the parties in the course of his investigation, seems to have been the principal ground for impeaching the award.

In Chicot v. Lequesne, 2 Ves. 315, it is a principal ingredient of the decision, that two of the arbitrators decided without the presence.of the third. Reference is made in the argument to the case of Corbett Kynaston v. Mayor of Shrewsbury, “ where fifteen aldermen concurring, as found in the verdict, the whole Court held it a void act, the sixteenth not having been summoned, whose reason might have convinced the rest.” This was the case of a' 6 , corporate act, done, not on a corporation day, when it is said al?1 must be present. So here, »e cannot say that the reason of the other commissioners might not have convinced the umpire. We cannot say that Col. Magwood presented to the mind of the umpire all the circumstances that were necessary to his decision. Different minds see things in a different light, and present them differently. The concurrence of several gives some authority to an opinion, and it is more difficult to resist their arguments. The decision of the umpire seems to have been so palpably erroneous, that perhaps, it is fair to presume he might have been convinced by the reason of several. An umpire, I suppose, may either re-ex amine the whole matter, and hear testimony for himself, or act o» the concurrent statements and opinion of the arbitrators. In the' latter case, it would seem a rule of propriety at least, that all the' arbitrators on both sides should be before him.

vide Lawrence v. Beaubien, 2 Rep. 623.

It was argued, that the complainant had no right to impose conditions \ that he "bad no power to do any thing but name his com-' missioners, and that to them belonged, in conjunction with the commissioners on the part of the Council, the appointment of the umpire. Admitting this to be so, yet as his conditions were as* sented to by the commissioners, who had the power of appointment, it became the rule for the umpire’s conduct, to which he was bound to conform. Besides, we would presume that his commissioners, who were in some sort his agents, joined in the stipulation. It was, we think, a reasonable condition, and may have been a material one. Being assented to on both sides, it was binding on the' umpire.

On the question of jurisdiction, I think it hardly necessary to say, that the setting aside of awards, for misconduct, or irregularity, is a familiar subject of equity jurisdiction.

It was further urged, that the complainant had precluded himself from relief, and confirmed the award, by executing a conveyance' of the premises. It is plain that he did this under a misapprehension of his legal rights; and we have decided, during the present session, that such misapprehension may be relieved against. It was not an acting in ignorance of the law ; but he was assured d o by the Intendant, himself a lawyer, that the execution of the deed would not impair his claim to further compensation. We may justly conclude, that he was deceived, and misled by this assurance. But in truth, this is a mistaken view of the subject. He does not come to be relieved against the deed, or to set it aside. He comes to claim a compensation for his property, to which he is certainly intitled. . The award does not stand in his way, for we have declared it irregular. If before he had received any compensation, he had executed a conveyance, and delivered possession, in the confidence that the Council would go on to ascertain, and pay his compensation, in pursuance of the directions of the act, 1 think he might sustain his suit in equity.

The authority of Chancellor Kent, in Phillips v. Thompson, 1 Johns. C. R. 147, seems directly in point. In that case, commissioners were appointed, under-an act of the legislature, for the purpose of reclaiming drowned lands, and a mode was fixed of making compensation to persons whose property might be injured. Under some understanding with the commissioners, the plaintiff had lowered his mill dam, and they had cut a canal on his land. The bill was for compensation. The Chancellor says he has no doubt of the jurisdiction. It is certain that the plaintiff has sustained injury, and is infilled to compensation. The defendants admit that they entered upon the land, and dug the canal, under his express, or implied assent, and with a mutual understanding that compensation should be made. How is he to proceed! He cannot sustain trespass at law, for the lowering of the mill dam was his own act, and the commissioners entered to cut the canal by his assent. The Chancellor cites many cases, in which the Court has sent issues to law, for the purpose of assessing damages ; and says he is apprehensive the plaintiff will be remediless without the aid of the Court. In the present case the complainant cannot sustain trespass at law. He first delivered possession of the premises by his own act, and afterwards executed a conveyance. It is difficult to conceive of any action, in form ex contractu, which he could sustain at law. Yet he is certainly intitled to full compensation for his property. He has not received it, and the award is not in his way ; and we are apprehensive, that the complainant will be remediless without the aid of this Court.

The decree is therefore affirmed, and the appeal dismissed.

Johnson, J., and O’Neam,, J.', concurred.

Decree affirmed.  