
    *Ross v. Overton.
    [Monday, November 8th, 1802.]
    Variance — Date of Arbitration Bond. — Variance between the date of the bond declared on, and that recited in the award, is not fatal, if they agree in every other particular ; that is to say, if the bond declared on, have the month blank, and the award recites the month, it will not be fatal if the bonds agree in other respects.
    Lease — Covenant to Leave in Repair. — O. leased a mill and premises to R.; who covenanted to leave it in repair. The mill during the lease is carried off by ice. R. is bound to pay the rents, and perform the covenants.
    Arbitration and Award — Setting Aside Award. — [The Court will not interfere to set aside an award, on the ground of the arbitrator’s having mistaken the law in a doubtful case.]
    The Overtoils brought debt against Ross, upon an arbitration bond, and declared for 6,0001. on a bond dated the 25th day of-, in the year 1784, and conditioned for the performance of an award, concerning the payment of the rent and putting some improvements on a tract of land, merchant mill and fishery of the plaintiffs, which had been leased to Ross, so as the award was made ready to be delivered to the parties on or before the 15th day of June, thence next ensuing. The declaration states an award as follows:
    “Bonds having been entered into by Elizabeth Overton and Richard Overton of the one part, and David Ross of the other part, dated the 22d day of May, 1784, whereby the said parties bind themselves mutually to abide by and perform the award and arbitrament of Joseph Jones, James Madison and Henry Tazewell, esq’rs, arbitrators, indifferently chosen by them of and concerning a controversy subsisting between them relative to a lease or agreement made and entered into the 24th day of August, 1783, between Richard Morris, on behalf of the said Elizabeth and Richard Overton, and the said David Ross, respecting a tract of land, a merchant-mill, fishery, &c. adjoining the City’ of Richmond, as is particularly specified in the said lease or agreement, so as the award be made and given up in writing, under their hands and seals, on or before the 15th day of June next ensuing, the date of the said bond. We, the arbitrators afore-mentioned, have met and considered the lease or agreement aforesaid, and we find that in the said lease or agreement the following stipulations are contained : After the said Ross accepts of a lease of the land adjoining Richmond, a grist-mill thereon, canal, fishery, &c. and all other advantages and conveniences of what kind soever attendant thereon, he covenants as follows: That he will make the improvements *herein-after named, to wit, a convenient bakehouse, two stories high, with three ovens, a miller’s house, 32 by 16, one story high with two chimneys of stone or brick, lathed and plaistered and finished in a workmanlike , manner, a kitchen, 16 by 16, with a stone or brick chimney, a stable of convenient size, and also a cooper’s shop: That he will open the canal, extend and improve it, so as to admit a plentiful supply of water, as far as the situation and plan of the said mill will admit with convenience, to pay taxes, and to deliver the said mill, together with the improvements aforesaid at the expiration of the said term of seven years, in proper tenantable repair. It appears by the admission of each party, that in January, 1784, by an extraordinary and unexpected movement of the ice, the mill-house was entirely demolished, and the said Ross had it not in his power to prevent the same. In pursuance of the submission aforesaid, we the said Joseph Jones, James Madison and Henry Tazewell, do award and determine, that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall comply with and perform the other covenants contained in the said lease.” Pleas, conditions performed; and no award: Issue on both; and then the record, after stating that the jury were sworn, proceeds thus:
    ! ‘The declaration on which the said issues were joined, stated the date of the bond to be the 2Sth day of- 1784; and after the jury were sworn to tay the said issues, the counsel for the plaintiff with the assent of the defendant’s counsel, amended the said date at the bar, so as to be the 22d day of May, 1784; but the counsel for the plaintiffs, having thereupon suggested that the amendment was made through mistake, moved that the date of the said bond should be restored to what it originally was when the jury were sworn, to wit, the 25th day of ——, 1784 ; which motion *was opposed by the defendant’s counsel, but granted by the Court.”
    Verdict for the plaintiffs
    upon both issues; and the defendant moved to arrest the judgment :
    1st. Because, no date to the writing obligatory in the proceedings mentioned is set forth in the declaration, the month in which it was executed not being therein stated. 2d. Por, that the award appears on the face of it to have been made on a different obligation from the one declared on. 3d. Por, that the breach of the condition of the writing obligatory in the proceedings mentioned, is not set forth with sufficient certainty.
    The District Court entered judgment for the plaintiffs, and Ross appealed to this Court.
    Hay, for the appellant.
    There is a variance between the bond declared on, and that recited in the award: Por, the declaration states the date as of the 2Sth day of 1784, and the award as of the 22d day of May, 1784. This mis-recital is fatal. Turner v. Moffett, 2 Wash. 70. Por, the declaration states the breach in not performing an award made upon another bond, than that stated in the declaration : Which latter, according to this record, is not alleged to be violated.
    Duval, on the same side.
    The award states the facts; and it is evident, that the arbitrators have drawn an inference, from those facts, erroneous in point of law. Por, the injury done to the premises was owing to the act of God, which excused the covenant. Thus, if a house fall by tempest, it is not waste in the tenant. So, if there be a contract for the purchase of a house, which is burnt before a conveyance, the purchaser will not be bound to pay the purchase money, Stent v. Baily, 2 Eq. Cas. Abr. 689; and, there are various instances where it has been held that inevitable *accidents will excuse the tenant. [Mingay, argo. in Doe v. Sandham, citing Brown v. Quitler,] 1 T. R. 708. It is like the case of a common carrier, who, though generally held to stand insurer, is yet excused by the act of God. [Forward v. Pittard,] 1 T. R. 28. The arbitrators, therefore, were clearly mistaken in their inference from the facts; and the Court may relieve against it. Jerdone v. Holt, [Saturday, Dec. 18, 1790,] in this Court.
    Wickham, on the same side.
    The Court may correct the error in the opinion of the arbitrators, as it appears from the face of the award. [Pleasants et al. v. Ross,] 1 Wash. 158. The sum awarded is assessed upon all the covenants, and not for the rent only.
    Call, contra.
    The recital in the award of the date of the bond does not vitiate. 1. Because it is true: Por, the defendant does not shew any other bond; and, therefore, it must necessarily apply to this, as the Court will not presume any other. 2. Because, the substance of the bond and award agree; which proves the reference was to this very bond, and to no other: And it is enough if by reference it can be ascertained. Deane v. Cunliffe, in this Court. M. S. [Thursday, April 20th, 1797]. The names of the parties, the sums, and the principal matters of the bond appear in the award; which sufficiently identifies the bond referred to. 3. Because, the arbitrators have found the true date of making- a bond, which bore an uncertain date: thus rendering that certain, which was uncertain before: And they clearly had a power to do so. l?or, arbitrators may find the true date, in the same manner as a jury; who are not bound down to the date expressed in the instrument, but may find the actual date: which is the dajT of the delivery. For, wherever the date is uncertain, void, or omitted, it may be supplied by pleading, or finding. [Cromwell v. Grums-den,] 1 Bd. Raym. 335, 6 Mod. 244; Goddard’s Case, 2 Co. 4; 1 Neis. Abr. 388. 4. Because, there is no repugnancy, between the date expressed in the bond, and that recited in the award. For, it states, that the bond *was dated, and not that it bore date, on the 22d of May, 1784: But, it is the delivery which constitutes the date, and not the expression in the bond: So, that the date is independent of the words; and, therefore, as it is a substantive fact, it may be found, without assailing the bond itself. Consequently, the stating the actual date did not produce any inconsistency. 5. Because, in cases of this kind, the question is not, when the deed was made, but whether the party actually did make it? Goddard’s Case, 2 Co. 4. 6. Because, the bond bears date in 1784, and the arbitrators merely add the time of the year: So, that they cannot be said to misrecite; for, the year, which is all the date contained in the bond, is truly recited; and the addition of the month will not prejudice; because, it comports with the bond, and does not produce a variance: Which is the only .ground upon which misrecitals are held to vitiate. 7. Because, the pleas admit the award. For, the plea of conditions performed goes to the award stated in the declaration; because, when he says he has performed the conditions of the bond, he virtually affirms, that he has performed the award, which is alleged to proceed from it. The same observation applies to the other plea, of no such award as that stated in the declaration. For, there the plea goes to the award, which is alleged expressly: After which, it is too late to object a variance between that, and the bond. Hubbard v. Blow, and Brown v. Ross, M. S. in this Court. In this respect it differs from Turner v. Moffett, 2 Wash. 70: Because, there was no subsequent plea, or admission of the fact in that case. 8. Because, it has been expressly decided, that it does not vitiate. Style 87; Allen 87; 1 Ventr. 184: Which are conclusive as to bonds: and, therefore, even if Turner v. Moffett is to prevail in cases of reference, still in the case of a bond, the award will not be avoided, by such a misrecital as this.
    *The defendant was bound to pay the rents, and perform the covenants, notwithstanding the act of providence.
    A distinction has been sometimes taken, between a case, where the soil itself is carried away; and where the buildings and conveniences are destroyed, but the soil is left. In the former case, the rent is said not to be demandable, (as no act of the tenant could enable him to enjoy the property;) but, in the other it is: Because, the tenant still has the use of the soil, and may restore the conveniences with labor and pains. This distinction clearly operates in favour of the appellee in the present case i because, the tenant might re-build the mill, and he has the benefit of the residue of the demise. Besides, the rule is inflexible, that wherever there is an express covenant to pay the rents, put repairs, or restore in tenantable order, there the tenant is bound by his covenant, and must perform it, at all events: And the want of enjoyment is not material; because, a man may covenant under seal, without a consideration. [Paradine v. Jane,] Allen 27; [Monk v. Cooper,] 2 Stra. 763; [Shubrick v. Salmond,] 3 Burr. 1638, 1640; [Balfour, adm’r v. Wesson,] 1 T. R. 310.
    Nicholas, on the same side.
    Courts are more liberal in construing awards now, than formerly; and the subject matter plainly shews, that the award, in this case, was made upon the bond stated in the declaration ; for, that is certain, which can be rendered so. 2 Bac. Abr. 218, and the date might be averred. The defendant cannot be received to object the variance at this time. For, the award is stated in the declaration; the plea goes to it; and the jury have found it. If the defendant had chosen to have drawn the variance into question, he should have plead it. The case of Turner v. Moffett, 2 Wash. 70, is not like this; 1st. because, there was no plea over in that case, as there is in this. 2d. Because, the award there ^contradicted a record. The issue in this case was, whether the award was made in pursuance of the bond declared on? And the jury have found that it was; which is conclusive. It is not clear that the Court can correct a mistake of the arbitrators, if in fact they had drawn an erroneous inference in point of law. The case of Jerdon v. Holt, I am not acquainted with; and, that of Ross v. Pleasants, (Chancery Decisions,) was the case of a mistake in facts. But, if the Court can make such a correction, there is no ground for it in the present case. For, the award does not state the facts certainly enough to enable the Court to do it. However, upon the merits, the law is in our favor; for, the express stipulations bound the defendant both at law, and in equity.
    Randolph, on the same side.
    The variance is' npt material. The old authorities are clearly so; and they are approved of in Kyd on Awd. 159. The case of Turner v. Moffett, 2 Wash. 70, does not apply; because, the award there contradicted a record ; whereas, this is merely a bond, which is matter in pais only. Besides, the case appears to have passed sub silentio; and the jury here, have found the fact. The arbitrators were not mistaken in the legal inference. There were several other advantages besides the mills, as the fishery, &c.; which the defendant might have enjoyed, notwithstanding the ice; and, therefore, the partial inconvenience ought not to excuse him. Besides, we are in a Court of Law, where the legal covenants must prevail: For, equitable circumstances are of no weight in the present action. If the defendant supposes they are of any avail, he must apply to a Court of Equity. But, even there, he, perhaps, would not be relieved. For, although Ld. Northington, in Brown v. Quilter, speaks very liberally, yet he hints something concerning the cross action of the party, which would not apply *here. The accident was a probable one, and yet no provision is made for it; which looks as if it was not considered, at the time, that he was to be relieved.
    Warden, in reply.
    There is a plain variance between the bond declared on, and that recited by the referees; which is sufficient to avoid the award. The arbitrators were clearly mistaken in the inference, which they drew from the facts. The parties did not intend it; and the law does not support their deduction. Landlord’s Law, 222; 1 Inst. S3. This is a mistake which ought to be corrected; and the Court have the power to do it. Kyd on Awd. 239.
    Wickham, on the same side.
    There was a variance between the bond declared on, and that produced in evidence. It is not true, that you may declare on one bond, and give another in evidence. The difference is, where the declaration states, that the bond bears date on such a day, and where it states “that it is dated” on that day: In the first case, you may prove, and the jury may find, a different date: but, not so in the latter; because, the plaintiff, by stating the date in his declaration, admits it. Here the award recites a distinct bond, from that declared on; which is expressly within the case of Turner v. Moffett. And it ought to be so; for, suppose the arbitrators had awarded on matters not in this, but another bond, ought their award to have bound? The pleas do not admit the award to have been made, in pursuance of this bond. The declaration does not say so; and, therefore, the plea cannot be construed into an admission of it. In the case of Deans v. Cunliffe, the Court had the notice before them; and, therefore, could see that the award pursued the reference. Under every view, then, the misrecital is an incurable defect. But, upon the merits, the plaintiff is not entitled to recover. The accident could not have been prevented by Eoss. The covenants could not be enforced upon the principle of ^natural law; and a Court of Equity would relieve against it, as is clearly proved by the case of Brown v. Quilter, Ambl. 619. Besides, if the strict letter of the covenant is urged, we may insist that the plain! iff covenanted for our quiet enjoyment against all interruption or molestation; which includes the accident, that has happened.
    Cur. adv. vult.
    
      
      Deed — Blank Left for Date. — As to the effect of filling a blank left for the date in a deed, see the principal case cited in Keen v. Monroe, 75 Va. 428.
    
    
      
       Covenant to Repair — Common-Law Rule. — At common law, a covenant to repair, obliged the lessee t'o rebuild, although the premises were wholly destroyed, without his default, by the act of God. In support of this proposition, the principal case is cited in 2 Min. Inst. (4th Ed.) pp. 194, 723, 923; Scott v. Scott, 18 Gratt. 166.
      In Maggort v. Hansbarger, 8 Leigh 537, the court said : “ And even where there were such express covenants to repair, it has seemed to some a strained and doubtful construction to extend them to the case of rebuilding. Boss v. Overton was considered at the time a doubtful case, although Ross had expressly covenanted to deliver the mill and other improvements ‘ at the expiration of the said term of seven years, in proper tenantable repair.’ ”
      Same — Principal Case Distinguished. — But the principal case is distinguished in Maggort v. Hansbarger, 8 Leigh 536, on the ground that there was, in that case, no covenant to repair, or to deliver the demised premises in good order, or in the same order as the defendant received them, as in the principal case: but simply a covenant or agreement to return the property with its appurtenances.
      In Clark v. Franklin, 7 Leigh 10, the court said : " If we consider Ross v. Overton, 3 Call 309, as applicable to this case (which has been cited as applicable, though I do not think it is so), then the builder is answerable for all.”
      Same — Effect of Statutes. — The rigorous construction put on covenants to repair at common law, has been modified by statute in Virginia and West Virginia. Va. Code 1887, sec. 2455; W. Va. Code. ch. 72, sec. 22, p. 690. See 2 Min. Inst. (4th Ed.) p. 723.
      See generally, monographic note on "Covenants” appended to Todd v. Summers, 2 Gratt. 167.
    
    
      
       Arbitration and Award — Awards Favored. —The principal case is cited in Pollock v. Sutherlin, 25 Gratt. 95. See foot-note to City of Portsmouth v. Norfolk County, 31 Gratt. 727; and monographic note on "Arbitration and Award ” appended to Bassett v. Cunningham, 6 Gratt. 684.
      Morris v. Ross, 2 Hen. & M. 408, is the sequel to the principal case.
      New Trials — Verdict Contrary to Evidence. — A new trial, on the ground that the verdict is contrary to evidence, ought to be granted only in cases of plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers. For this proposition, the principal case is cited and approved in Brugh v. Shanks, 5 Leigh 600, 602; Mays v. Callison, 6 Leigh 235; Brown v. Handley, 7 Leigh 124; Callaghan v. Kippers, 7 Leigh 612 ; Slaughter v. Tutt, 12 Leigh 159, 160 ; Read v. Com.. 22 Gratt. 942; Vaiden v. Com., 12 Gratt. 729; Taliaferro v. Franklin, 1 Gratt. 340 ; Muse v. Stern, 82 Va. 39 ; Kimball v. Friend, 95 Va. 144, 27 S. E. Rep. 901. See foot-notes to Patteson v. Ford, 2 Gratt. 18; Bell v. Alexander, 21 Gratt. 1; and monographic »¡«oa "NewTrials.”
    
   At the request of

Pendleton, President, Eoane, Judge,

delivered the resolution of the Court, as follows:

In this case, two objections have been made to the judgment of the District Court:

1st. That there is a variance between the award and the bond of submission stated in the declaration, the former referring to a bond dated the 22d of May, 1784, and the declaration, stating the bond in suit to be dated the 25th of , 1784. In support of this objection, the counsel principally relied on the case of Turner v. Moffett, in this Court, reported in 2 Wash. 71. But, that case does not apply; since the variance was apparent on record, against which no averment is admissible; and it was truly observed, by the Attorney General, that that case was distinguishable from the present; which, being a bond for the submission, was a matter in pais, and the supposed variance might be corrected by averment. The declaration states, that the defendant, on the 25th day of , 1784, by obligation, the date whereof is the same day and year, bound himself to the plaintiffs: In the breaches assigned, annexed to the declaration, after reciting the lease to the defendant, and its essential covenants on his part, and that differences had arisen, which the parties had mutually agreed to refer to arbitration, the plaintiffs aver that they entered into a bond, similar to *that entered into by the defendant, to abide by the award; and that the defendant, on the same day, to wit: the day of , 1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them, not Eoss’s bond, but that entered into by the plaintiffs; which they say is dated the 22d of May, 1784. Without going over the several cases cited, the rule laid down, in 1 Ld. Eaym. 335, seems to have run through them all; that is, that, if a bond had either none, or an impossible date, the plaintiff may aver any day, which he can prove the bond to have been delivered on. The present case is that of no date to the bond; (for, the counsel’s curious criticism, referring the 25th day of something to the day of the year, was calculated only to occasion the mirth it produced). We consider that, as well as the blank date averment, to be no date: and, of course, there is no variance between that and the true date mentioned in the award; in every other thing, in parties, controversy, and arbitrators, they agree. And, on this point, there is no error in the-judgment of the District Court.

The second objection is to the award itself. On this point, it was argued by Mr. Wickham, that, under the covenant for quiet enjoyment, the Overtons were the insurers of the property against all accidents ; but, surely, that covenant which does not differ essentially from others of a like kind, only obliges the lessor to defend the enjoyment of the lessee against legal claims, and not against a separation of continuity, robbers, thieves, trespasses, or the ice, as was said by the counsel. Bu1, it was argued that where it is apparent in the award, that the arbitrators decided upon principles, in which they were mistaken, either in law or fact, the Court will set aside the award: And that they were so upon the present case ; since, it being stated that the mill-house was entirely demolished, by an extraordinary, and unexpected movement *of the ice, which Eoss had it not in his power to prevent, they mistook the law, when they awarded that he should pay the rent, and perform his other covenants in the lease, notwithstanding the accident.

For the sake of precedent, the Court first considered how far they ought to interfere with awards, upon this ground; and are of opinion, that they ought not to consider themselves as an appellate Court from the judgment of the arbitrators, and reverse it, merely because we differ in opinion from them, on a doubtful question; but ought to place ourselves in the state of a Court applied to, to grant a new trial, because the verdict is contrary to evidence; which ought to be granted onlj’ in case of a plain deviation, and not in a doubtful one, merelj’ because the Court, if on the jury, would have given a different verdict; since that would be to assume the province of the jurj’, whom the law has appointed the triers. 'This rational distinction between plain and doubtful cases, is observed in the books which justify the Courts in setting aside awards for mistaken principles: That this was, at least, a doubtful question, is evinced, not only by the number of counsel employed to discuss it, but from the English decisions on the subject; and on this ground we think the District Court did not err on this second point; at the same time observing, that stating it as a doubtful case, cannot be complained of by the appellant; since, on the merits, it is our present opinion, that the arbitrators did not mistake the law. The judgment is, therefore, affirmed with costs.  