
    Peter Wikoff and Isaac Wikoff against Tench Coxe, John Reed and Standish Forde.
    Where arbitrators or referees under a rule of court, have been guilty of gross injustice, or have made a plain mistake, the court will interpose; but the injustice or error must be clearly and satisfactorily proved.
    Supreme Court, January Term; 1793.
    Philadelphia County, ss.
    
    The Declaration. — Tench Coxe, John Reed, and Standish Eorde, late of the county aforesaid, merchants were attached to answer Peter Wikoff and Isaac Wikoff, of a plea of trespass on the case, &c.; and thereupon the said P. and J. by Jared Ingersoll their attorney, complain and say, that on the 1st day of January Anno Domini 1788, at the city of Philadelphia, in the' county aforesaid, a certain dispute waá subsisting between the said P. and J. on the one part, and the said T. J. and S. assignees of Isaac Sidman, an insolvent debtor, and trustees for the creditors of the said I. S., to compromise and determine which, as well the said P. and J. as the said T. J. and S. put themselves upon the arbitration of Andrew Bunner, William Pollard and Peter W. Gallaudet, arbitrators, indifferently chosen between them, to award, order and adjudge of and concerning the said dispute; in consideration whereof, and in consideration that the said P. and J. had undertaken and promised to the said T. J. and S. to perform and fulfil the award of the said arbitrators on their part, the said T. J. and S. on the 20th day of June Anno Domini 1788, at the county aforesaid, undertook and to the said P. and J. faithfully promised to perform and fulfil the award of the said arbitrators on their part; and the said P. and J. in fact say, that the said arbitrators having taken upon themselves the burthen of the said arbitration, after-wards, to wit, on the 30th day of June in the year last aforesaid, at the county aforesaid, awarded, ordered and adjudged, of and concerning the said premises, in form following, to wit: — We the subscribers, arbitrators appointed by P. and I. W. on the one part, and T. C. J. R. and S. F. assignees of I. S. on the other part, to settle the accounts, and ascertain the balance between the said P. and I. W. and J. S., having examined the accounts aud vouchers, ánd heard the allegations of the parties, are of opinion that the balance of 3400I. 16s. 6j4d. was due from the said I. S. to the said P. and I. W. on the 2d November 1782, including interest, the said P. and I. W. *have since paid for the said I. S. to Nathaniel Tracy, and that the certificates in the hands of the said L P. and I. W. do remain their property, having charged them with the amount. The private account of Isaac Wikoff respecting the first cost and proceeds of the adventure per brig Schuylkill, is not taken notice of in this settlement; whereby the said P. and I. W. become entitled to have and receive from the said T. J. and S. the sum of 566I. 13s. ¿\A. being the rate of dividend upon the sum received by the said T. J. and S. of the effects of the said I. S. which the creditors of the said I. S. had agreed to distribute among themselves, and which the creditors of the said I. S. did receive except the said P. and I. W.; and the said P. and I. W. in fact say, that although they were ready on their part to perform the award of the said arbitrators, yet the said T. J. and S. their promises and assumptions aforesaid, in form aforesaid made, not regarding, but contriving and fraudulently intending the said P. and I. W. in this behalf, craftily and subtilly to deceive and defraud, the said sum of 566I. 13s. 4d. awarded to the said P. and I. in manner aforesaid, by the referees aforesaid, have not paid, nor hath any of them paid to the said P. and I. W. or either of them, although to pay the same the said T. J. and S. on the 1st day of January Anno Domini 1789, and often afterwards at the county aforesaid, by the said P. and I. were required: [Then followed a second general count for 566I. 13s. 4d. for money had and received by the defendants to the use of the plaintiffs.]
    To the damage of the said P. and I. W. 6800I. and thereupon they bring suit, &c. Pledges, &c.
    Special pleas to the first count. — And now here at this day, to wit, on Wednesday, the eighth day of December, Anno Domini 1790, of the term of December, until which day the said T. J. and S. had leave to imparle, and then to answer, &c. before the justices of the said court, came as well the said P. and I. W. by J. I. their attorney aforesaid, as the said T. J. and S. by John D. Coxe their attorney, and the said T. J. and S. defend the force and injury, when, &c. and say that the said P. and I. ought not to have and maintain their said action against them, because they say that true it is that they did submit themselves to stand to the award of the said A. B., W. P. and P. W. G. arbitrators aforesaid, and that -they the said T. J. and S.'did undertake to perform and fulfil what the said arbitrators should adjudge on their part to be performed, as in the declaration aforesaid is alleged, but that the said I. S. on the 9th day of November, Anno Dommi 1782, at the county aforesaid, did, by a cer*tain writing of pg--assignmeht, sealed with the seal of the said I. and to *- the court now here shewn, whose date is the same day and year aforesaid, assign all his estate, real, personal and mixed, unto the said T. J. and S., their heirs, executors, administrators and assigns, in trust for the use of all his creditors in equal shares and proportions, according to their respective demands, •without any preference to one more than another; and the said I. S. was then and there indebted to the said P. and I. W. in a certain sum of money. And the said T. J. and S. further say, that before the submission, and the said promise of the said T. J. and S. made, and before the arbitrators made any award between them and the said P. and I. W., the said P. and I. being partners in trade, and the said P. and I. W., and the said I. S. and a certain Jonathan Smith being partners in other trade, they the said P. and I. partners aforesaid, as first mentioned, on the 31st day of August, Anno Domini 1779, at the county aforesaid, took out of the partnership store of the said P. and I. W., I. S. and J. S. certain certificates, bearing interest on France, to the amount of 11,800 dollars, which certificates were then and there the joint property of the said P. and I. W., I. S. and J. S., for which they the said P. and I. W. then and there gave a receipt in writing, and which certificates they had in hand and undisposed of at the time of making the said award; by reason whereof, and of the said writing of assignment, the said T. J. and -S. assignees aforesaid, were intitled to demand and receive of the said P. and I. W. the said certificates, as the proper goods and chattels of the said I. S. or the value of his interest therein, all which the said T. J. and S. did make appear to the said arbitrators at and before the making their said award, and did then and there request the said arbitrators to allow the full value thereof to the said I. S. in account with the said P. and I. W., yet the said arbitrators did not allow the said full value as aforesaid, in account as aforesaid, and this the said T. J. and S. are ready to verify. Wherefore they pray judgment, whether the said P. and I. W. ought to have and maintain their said action upon the said award, made in manner and form aforesaid, against them the said T. J. and S.
    And the said T. J. and S. with leave of the court further say, that the said arbitrators, on the 30th day of June, Anno Domini 1788, at the county aforesaid, by the said award did order and award, that the said certificates should remain the property of the said P. and I. W., they the said arbitrators having charged them with the amount thereof; yet the said T. J. and S. in fact say, that the said arbitrators have not charged the said P. and I. W. with the amount thereof, which ^ogg-i the said T. J. *and S. are ready to verify. Wherefore J they pray judgment, &c.
    And further the said T. J. and S. with leave of the court, plead non ass%impserunt and payment.
    The plaintiffs demurred generally to the special pleas, and replied non solverunt to the last plea.
    
      The defendants joined in demurrer.
    Mr. Ingersoll in support of the demurrer observed, that the amount of the special pleas to the first count in the declaration, was that the plaintiffs had taken out of the partnership stock, certificates to the amount of xi,800 dollars, and that the arbitrators had awarded that these certificates should be their property, but had not charged'them with the true value thereof. It must be obvious that the certificates ought only to be charged according to the real price they were at, when the plaintiffs appropriated them to their own use, in the same manner as if they had taken cloths, linen, &c. out of the partnership stock. They should be debited with the then current prices, and not with what they might be sold for according to subsequent events, as a war, or a scarcity of the articles. The objection is not well founded; but it goes in fact to the judgment of the referees, and the defendants’ object is to overhaul what they have done, and set all matters again afloat. This we deem inadmissible by the rules of law. The general demurrer confesses only matters of fact well pleaded. Plo. Com. 13. b. 85. a. Co. Lit. 73. a. 5 Com. Dig. 138.
    The court always leans in favour of awards, and will not examine into the merits of the cause. Awards are now liberally construed. 1 Burr. 277. Courts will not travel into them. 2 Burr. 701. When the parties themselves chuse their own judges, equity will not relieve against the award, unless it be in case of corruption, exceeding authority and the like. 1 Bqu. Ca. Ab. 50. pi. 1. At law, partiality in arbitrators cannot be given in evidence on nil debet. 2 Wils. 149-
    In the case of Wade v. Gallagher, on an exception to an award of referees, in September term 1791, the court refused to examine the referees, as to the kind of continental money tendered, how or when the tender was made, or what evidence there was before them respecting it. It must be confessed that was a hard case, as the tender of continental money was set up against a fair debt.
    Messrs. Coxe and Rawle for the defendants.
    It appears by the declaration, that the defendants were assignees of Isaac Sid*man, an insolvent debtor, and trustees for his r^ggy creditors. The time of the assignment is set out in L the special pleas to be on the 9th November 1782, and this is admitted by the demurrer. The arbitrators have stated a sum due to the plaintiffs on the 2d November 1792, including interest afterwards paid by them. Now if they were restricted to find a balance due at a fixed day, they ought not to nave taken in any interest money paid afterwards. They would thereby exceed their authority. If they were not so restricted, the case is precisely that in Dali. 119. Report of referees that “75I. was due on the 3d March last, with interest on the “same,” set aside for uncertainty; because there might have been a sum then due, and yet nothing- due at the time of making the report.
    To this it was replied by Mr. Ingersoll, that the submission was evidently to ascertain the debt due to the plaintiffs, on their joint dealings at the time of the assignment. The 2d November 1782, was the date of their last partnership transaction; but the plaintiffs having joined in an obligation as sureties for Sidman to Thatcher, the interest was then due, and ought to have been included, though not actually paid until a subsequent period. And of that opinion was the court.
    The defendant’s counsel proceeded. If the strict rules of the common law, laid down by the plaintiff’s counsel, are inflexibly to prevail in Pennsylvania, manifest injustice will frequently result from them. We have often been told in this court, that equity forms part of our law. We have no chancery jurisdiction amongst us, and unless the absolutely necessary part of that jurisdiction is exercised by the ordinary tribunals of justice, great inconveniences must arise. In England, when there is a palpable mistake by an arbitrator, or miscalculation in an account that had been laid before him, the party may bring his bill to have it rectified. 3 Atky. 644. An award is conclusive to the parties, until an error is shewn in taking the account. One is not concluded from proving an error in an award, if he has evidence that will amount to it. Ib. 530.
    If it appears that arbitrators have gone on a plain mistake, either as to law or fact, the same is an error appearing in the body of the award, and sufficient to set it aside. 2 Vern. 705. It surely will not be insisted, that the resolution in 2 Wils. 149, that the partiality of arbitrators shall not be shown in evidence on nil debet, is applicable here. Property would be precarious indeed under such a principle. Referees would be the sole, unlimited, uncontrolled judges in this state. In a -¡.oko-i case of the most * manifest injustice, will not the court J interpose its authority ? Will they suffer an award to be exe.cuted, nay, will they lend their aid to carry an unrighteous award into execution, when the injured party can, beyond all question, establish its flagrant deviation from right? If in any case, however strong, a court will think themselves bound to interfere, then the principle we labour for is admitted.
    By the court. Unquestionably equity is a part of the law. Dali. 213. And a necessity frequently occurs, in order to prevent a failure of justice, of letting the parties into proof unknown to the rules of the common law. Dali. 17.
    We have no court of chancery. Hence, in a variety of instances, we have adopted their maxims. The late constitution of the state justifies this practice, by the 6tb section of the 5th article, under the words “beside the powers heretofore ‘ ‘ usually exercised ’ ’ by the Supreme Court, and the several courts of Common Pleas.
    Suppose in a matter of trover, where the object in controversy was confessedly of the value of iol. only, referees should give 500I. or ioool. damages to the plaintiff: or, upon an account in which a sum was found due by them, it should evidently appear, by inspection, that there was a miscasting up of the amount, of iool. more or less, than the real su-m, and that the referees proceeded on that plain mistake, would not the court interpose their superintending powers, (whether the submission was with, or without a rule of court,) and thereby prevent manifest injustice? Could our minds, while sitting on this bench, be at rest, unless we pursued such a line of conduct ? The honest part of mankind will certainly answer in the negative.
    The general rules respecting awards, are well known. (Vide Dali. 173, 3x4, 486.) But they imply exceptions. As we observed in Wade v. Gallagher, already cited, ‘ ‘ Every “case must be governed by its own peculiar circumstances. “You may investigate an award as to a plain simple fact; as, “did the referees allow interest on an unsettled account, or ‘ ‘ the like. Bnt to go further would supersede the use of all ‘ ‘ references. ’ ’
    It is now become a considerable part of the business of the superior courts of justice to set aside awards, when partially or illegally made. 2 Black. Com. 17. And it appears from the cases cited by the defendants, that equity would relieve, when there has been a plain mistake. A power of control must be lodged in the courts of justices here, to be exercised with legal discretion, in all cases of exceptionable awards. Let the mistake therefore be pointed out and proved.
    * For the defendants. This case differs from common awards. It is special, and refers to another paper, L wherein the arbitrators are said to charge the plaintiffs with the amount of the certificates. The account referred to, shewing their mode of calculation, must be considered as part of the award itself. A charter having reference to other charters, it is the same as if all had been recited. 9 Co. 30. a. If the Quarter Sessions set forth the reason of their order, the Supreme Court will revise the same. Cas. temp. Hardw. 381.
    This account we submit to the court. The defendants are charged therein with continental money, at the rate of 40 for 1, when in many instances the money was much more considerably depreciated; and the plaintiffs are not debited therein with the certificates at the value they possessed in June 1788, when the award was made. The arbitrators, therefore, have gone on mistaken principles, in calculating the depreciation, and the case of Pringle v. M’Clenachan, (Dali. 486,) is éx-tremely parallel to that before the court. It is unfortunate for us, that the arbitrators cannot recollect the transaction sufficiently to throw further light on the matter.
    Cited in 8 W. & S., 106, and 9 Watts, 498, in support of the general proposition tkat equitable principles are regarded in Pennsylvania as part of the common law of tlie state.
    Mr. William Pollard, one of the arbitrators, was in court, but declared the grounds on which he had proceeded had wholly escaped his memory. He was fully satisfied of the justice of the award when he agreed to it.
   By the court.

To justify us in examining into the merits of an award, it is incumbent on the party who excepts to it, to produce the most clear and satisfactory proof of the errors he points out. No persons would otherwise act as arbitrators,, and the utility of-references would be wholly destroyed. It is of no moment at what rate the continental money is debited, provided the same rule is applied to both parties, and they have taken out equal sums at the same times. This rather appears to the court to be the case on the face of the account exhibited.

As to the charge of the certificates against the plaintiffs, the answer given by their counsel hereto, in the outset of their argument, is abundantly sufficient to our minds. It does not clearly appear to us that any injustice has been done, and therefore the defendants having failed in their proof, the plaintiffs are entitled to enter judgment.  