
    [Lancaster,
    June 6,1827.]
    ELLMAKER against BUCKLEY.
    in error.
    The opinion of the judge of the District Court óf Lancaster county, as to transferring, or refusing to transfer, a cause to the Court of Common Pleas, under the second section of the act of the 18th of January, 1821, is conclusive; and its propriety cannot be inquired into in this court.
    A party cannot, before he has opened his case, introduce it to the jury, by cross-examining the witnesses of the adverse party.
    In what manner, and to what extent, a witness may be cross-examined. Arbitrators are not only incompetent to give evidence of their own misconduct, but also to give evidence of that of a party, if such evidence at the same time involves the misconduct of the arbitrators.
    If an act be done by a party, before the submission of a cause to arbitrators, and not with a view to deceive them, which, however, may have an effect upon their opinions, it does not vitiate the award.
    In an action on an award, the defendant cannot give evidence which was not produced before the arbitrators, to show that the plaintiff had no merits.
    Writ of error to the District Court of Lancaster county, in an action of debt on an award of arbitrators, brought by Daniel Buckley, the defendant in error, against Leonard Ellmaker, the plaintiff in error.
    Whilst pending in the court below, a motion was made by the defendant’s counsel, to transfer this cause, together with two others between the same parties, and brought to the same term, to the Court of Common Pleas of Lancaster county, on the ground, that the judge of the District Court had been the attorney of the plaintiff in two earlier suits, from which one of the three suits, the transfer of which was asked for, originated, and that the cause of action of both the earlier suits,, was the source from which the three subsequent suits arose. The first of the two earlier suits was brought to February Term, 1803, and was discontinued on the 6th of Jlpril, 1814. The last was brought to November Term, 1814, and the plaintiff was nonsuited on the 26th.of November, 1821. Both these suits were for an alleged nuisance in raising the defendant’s mill dam, so as to make the water flow back,upon the plaintiff’s land. The award upon which the present suit was brought, was founded upon a submission proposed by Buckley, on the 17th, and finally entered ‘into on the 23d'of November, 1820, ■ by which the controversy respecting the dam was submitted to three referees, who, on the 29th of December, 1820, made an award in favour of Buckley, the plaintiff.
    . The judge of the District Court being of opinion that the suit in which he had been concerned, being for an alleged nuisance, and those which he was asked to transfer being an alleged submission and award, in the trial of which he could have nothing to do with any question of nuisance, though very unwilling to try the causes, he considered it his duty to refuse an order to transfer them. This opinion of the judge was excepted to by the defendant’s counsel.
    The plaintiff, having on the trial in the court below, proceeded with his proof to establish the existence and loss of the award, and evidence to supply that loss by the examination of the referees, the defendant’s counsel offered to cross-examine the witnesses on the subject-matter of this suit, and in avoidance of the award, before he had opened his defence. This being opposed by the plaintiff’s counsel, the court was of opinion that the defendant was not entitled to cross-examine the plaintiff’s witnesses before he had opened his defence, to which the counsel of the defendant excepted.
    The defendant offered to prove, by the cross-examination of one of the referees, that on the second day of their view, and after they had broken up and dispersed, one or more of them accompanied the plaintiff home, walking along the creek, dam and races between the houses of the plaintiff and defendant; and that while on their way, and after having arrived at the house of the plaintiff, he and the arbitrators conversed together on the subject of the controversy, and he pointed out to them, when neither the defendant nor any one on his behalf was present, the injuries which he alleged he had sustained from the defendant’s dam. The. testimony being objected to. by the plaintiff, was rejected by the court, to whose opinion an exception was again taken.
    An offer was then made by the defendants to prove, that immediately before the meeting of the struck jury and viewers, in the suit brought by Buckley against Ellmaker, to December Term, 1814, Buckley, the plaintiff, with the view to deceive the said viewers, dug a new tail race from his forge, and dug it on a level or very nearly so, and lower than the creek, and dug it deeper at the upper end next the forge than at any other part; and that, after the submission to arbitrators, the race was kept by him in the same state until after the view by the arbitrators, with the intent and view of deceiving the said arbitrators. To this evidence, also, the plaintiff objected, and the judge having sustained the objection, a bill of exceptions to his opinion was tendered.
    The defendant then offered to prove “ by the referees on their cross examination, that at the meetings of the referees to examine the water and regulate it, the plaintiff held intercourse with and made Communications to the referees,"behind the back and without the knowledge of the defendant, on the subject matters of the award; that the referees adopted a mode of proceeding and a standard for fixing the height the water should swell and to which defendant’s dam should be reduced, which put the whole of their proceedings entirely in the power of and under the influence and control of the plaintiff; that the experiment consisted in a proposition that Buckley’s forge dam which lay above, was to be shut so as to cause the current of the creek to flow over the breast of his dam— that one of the referees was to be stationed at Ellmaker’s dam— and that the other two of the referees ■ were to take their station at the line between Buckley and Ellmaker, when the dam of Ell-maker was to be shut — that a post was to be placed at the line by the two referees who were to notify the one at dam when the water rose half an inch on the post, and that in that way they fixéd the standard of regulation, leaving the water in Buckley’s dam to be used at his pleasure and without any control over him — by which the current of the creek was put completely in his power, to control the influence of the ■ water on the standard adopted by the referees by increasing it at his will — that the referees adopted no mode to ascertain what the current of. the creek was. And by putting this experiment into effect the whole of it was a fallacy ruinous to the defendant, and advantageous to the plaintiff, by leaving the control of the whole of Buckley’s dam in his power.”
    The evidence thus offered was “ rejected so far as regards the referees, but admitted, provided it could be proved by other testimony; except so much as was matter of argument arid inference, and not matter of fact.”
    His Honour certified that the above was the original offer of the evidence, and the ground of rejecting it, so far as it was rejected, so noted at the time of the trial, in his own handwriting; that the bill of exceptions afterwards tendered, did not exhibit the circumstances correctly, as to the partial rejection of the evidence; and therefore he signed the original paper in lieu of the bill.
    The defendant further offered to prove that he had a complete right to the water now in dispute, before and at the time of the proposition made by .the plaintiff, for this reference — that this mill-dam was erected in 1776, when John Clemson was owner of the lands now claimed by the plaintiff, and that the dam was then a little higher than it is now, owing to its settling since — that said dam swelled the water back on the lands of the said John Clemson rather higher than it was ever swelled on Daniel Buckley— that the said John Clemson knew of and agreed to the erection of the said dam by the defendant, and its swelling in the bed of the creek on his land, arid was agreed to and acquiesced in the same, and allowed thereof, .and furnished his mulatto man and horse and cart to assist in the erection of the said dam — that the said dam was in full use and operation from* its erection till the death of the said John Cleinson, in 1794, with his consent and approbation; he living during the whole time within three quarters of a mile of the said dam — That after the lands of the said Clemson came to be Buckley’s, on said Clemson’s death, he acquiesced in the swelling of the defendant’s dam in the said creek as it had done in Clemson’s lifetime, until the beginning of the year 1803, when the said Buckley brought an action on the case against Ellmaker, which he discontinued on the 6th of April, 1S14, (prout the record;) that he brought another action on the case to November Term, 1S14, of the Court of Common Pleas, of Lancaster county, which he continued, and put to issue, and took a rule for a view in the same; that at the time the viewers were viewing, or after or about the time of the viewers completing the view, he the said Daniel Buckley at the time of the view, and shortly before he made propositions of accommodation according to the testimony of John Passmore, used the following threats to the defendant, a man then of eighty years: viz.. ‘ If Leonard Ellmaker will not give up to me in the matter now in dispute between us, I will keep it in law as long as I live, and will put in my will that my sons shall keep it in law as long as they live,1' — that at the same time he applied many opprobrious epithets to Jacob Swartzwalter; called him a methodist, and said as follows, viz. if a religious man wears a plain coat, I have not the least doubt but he is a villain — that the alleged submission ivas coaxed and obtained by the said threats — that the referees in this cause, with a full knowledge of all the matters aforesaid, made a plain and palpable mistake in the matters of law and fact — rejected—except as to the recoi’ds of the suits and as to declaration made to the defendant, or any person acting for him at the time.”
    To this paper the judge appended the following statement:—
    
      “ This is the original offer of the matter of Bill-No. 4: as marked by me at the trial, with the written rejection thereof as annexed thereto, showing the grounds and reason of rejecting the same, the court did not reject any evidence offered as to direct plain or palpable mistake of either law or fact, nor was any such evidence offered other than as a deduction or inference from the account of the disputes prior to the time of entering into the arbitration, and which the arbitration was intended to settle; and the offer called on the court to re-examine the whole subject of the original dispute which was refused: I have, therefore, signed the original offer in lieu of ' the bill afterwards tendered, as giving a more correct view of what actually occurred.” . .
    The lines in Italics in these two papers, were omitted in the bills of exception presented to the judge for signature.
    • The written rejection above referred to by His Honour, was in these words:— .
    
      (i You shall not examine into or unravel the merits of the award made'by judges of the parties’ own choosing, nor what mode of examination they adopted, merely for the purpose of hunting for some supposed mistake: you shall not examine into the whole evidence before the arbitrators for the purpose of re-examining the case, or the correctness of the judgment of the arbitrators; for though it may have been unreasonable or unsatisfactory to the parties, it cannot be avoided for that reason: you may show there was a mistake, that a fact was misrepresented which influenced the arbitrators — and you may examine to that, and you may show that evidence was rejected, which ought to have been received; and in that case, from necessity, you must inquire into its materiality, and so far inquire into the1 nature of the controversy as may be sufficient'to show this materiality, but you shall not re-examine their judgment and try the case over again: it is not in nature of a new trial or appeal, the award is-conclusive, unless it can be impeached for fraud, mistake, &c.; but you shall not fish out a mistake by re-examining the whole case to ascertain whether the court might not Have drawn a different conclusion: this Would put an end to all awards: a court of equity will not go into the merits, nor re-judge the judgment of arbitrators : if a mistake is shown I presume the arbitrator may be asked if he acted under such false representation of the fact, or mistook one thing for the other: you cannot correct the error of arbitrators in their judgment on existing facts, but may show that the fact was concealed or made to appear different from what it really was.”
    After one of the referees had stated in his testimony the experiment made by them as to the swelling of the water, the defendant proposed to ask h'im the following, questions: — “In making the experiment to ascertain at what height of Ellmaker’s dam the water would be swelled back to the 'line between Ellmalcer and Buckley, what assurance or evidence had you, that no more than the usual quantity of water was passing down the creek from Buckley’s forge?” The plaintiff’s counsel objected to the question being put, and the judge having sustained the objection, his opinion was again excepted to by the counsel for the defendant. ■
    In this court, error was assigned in the several opinions of the judge below appearing on the record. These errors having been argued by Ellmaker and Hopkins, for the plaintiff in error, and by Jenkins and T. Sergeant, for the defendant in error—
   The opinion of the court was delivered by

Gibson, C. J.

Although we may not concur in the opinions of the judge of the District Court, in regard ta the identity of the cause of action in the various suits between the parties, we are of opinion the legislature intended to refer the inquiry in this respect to his own discretion. The words of the act, undoubtedly lead to such a conclusion; and a reasonable presumption arises, from the nature of the case, that it was supposed none would be so able as he to determine whether he stood in a relation to tlie parties which would disqualify him as a judge. His order in a cause actually transferred, would indisputably be conclusive, because, he might privately have been of counsel or directly interested in a way known only to himself, and the presumption, therefore, would be that he had acted on a knowledge of facts perfectly proper to influence his determination, but which the party to be affected might be unable to prove; and if his determination were conclusive in the one way, it would be unreasonable if it were not so in the other.

The next bill of exceptions brings into question the right of a party to introduce his case by cross examining the adverse party’s witnesses, and before he has opened it to the jury. It is laid down that in cross examinations, great latitude is allowed in putting questions; but that relates to the manner and not to the matter. A witness may not be cross éxamined to facts which are wholly foreign to the points in issue, (and I would add to what he has already testified) for the purpose of contradicting him by other evidence. And here I take occasion in broad terms to dissent from the doctrine broached in Mr. Phillips’s Law of Evidence, (211,) that a witness actually sworn though not examined by the party who has called him is subject to cross examination by the adverse party: and that the right to cross examine is continued through ail the subsequent stages of the cause, so that the adverse party may call the same witness to prove his case, and for that purpose ask him leading questions. In respect to the first of these two propositions, Mr. Phillips himself explictly and truly states, that the use of the cross examination is to sift the evidence and try the credibility of the witness, but in this view it would be palpably absurd when applied to a person who had given no evidence at all. And in regard to the second, the law will not inflexibly infer that a witness is a willing one merely because he is produced by the party who thinks his evidence material. Such an inference would be neither practically nor theoretically true. It is not to be presumed that a party is in a condition to prove his case by the testimony of his friends; on the contrary, he is under the necessity of resorting to those who may happen to know something of the transaction, and these are for the most part just as likely to be his enemies. And .the bias supposed to be created by being called to testify on one side, is too slight to serve as the foundation of a rule unlimited in its extent. Certainly no bias is to be presumed after the witness has been called by both parties, as he undoubtedly is when produced a second time, not for the legitimate purposes of a cross examination, but to testify to new matter on the adverse part; at least, it would be unreasonable to raise such a presumption against a party who is the first to use the testimony of the witness only because he is compelled to do so by a necessity arising out of the order of proof.. In ordinary cases the witness may be cross examined by the party adverse to him, whose witness he is at the time, and even then only to discredit him or to bring out something supposed to be withheld; but under special circumstances, such as an apparent unwillingness to testify frankly and fully, the court may at its discretion, suffer the inquiry to take the shape of a cross examination without distinction as to the party by whom the witness is called; and for myself, I would not without further consideration, pronounce the exercise of the discretion depending as it does on circumstances which cannot be fully made to appear in a court of error, to be a legitimate subject of a bill of exceptions. If then a party may not prove his case by evidence extracted on a cross examination after he has proposed his case to the jury, a for- " iiori, he may not do so before.

The other bills of exceptions relate; first, to evidence of misconduct by the testimony of the arbitrators themselves; secondly, to evidence of acts done before the submission, which are said to have tended to mislead the arbitrators; thirdly, to evidence of the defendant’s title, to show that the award was inconsistent with the merits.

’As to the first, it was conceded during the argument, that arbitrators are incompetent to prove misconduct in themselves. But the evidence is said to have been proposed with a view to disclose misconduct only on the part of the. plaintiff. But the species ofimisconduct charged is social, and involves the conduct of the arbitrators as well as of the party, so that.the former could not establish it without implicating themselves. The charge is, that the arbitrators, or some of them, in the absence of the defendant, accompanied the plaintiff to his home and conversed with him on the subject of the nuisance, permitting him to point out from a view of the dam and races, the injuries which he was supposed to have suffered. . This, if true, was collusion, but the arbitrators .being "equally in fault with the parties, were incompetent to establish it.

Under the next head, it is contended the defendant should have been permitted to show that the plaintifi' had sunk his tail race deeper at the forge than in any other part, to give to the forge wheels the appearance of being incumbered with back-water; and that the race was permitted to remain in that state till after the supposed injury was viewed by the arbitrators. But whatever may have been the effect of this, it is sufficient that the state of the race complained of, was produced before the alleged nuisance was submitted to the arbitrators, and it could, therefore, not have been done with a view to deceive. But all dánger might have been avoided by the party whose business it was to put the arbitrators on their guard, and besides there is no. allegation that they were actually deceived.

Finally, the defendant offered to exhibit his" title to show that the plaintiff could not have had merits. An award may undoubtedly be avoided for a plain mistake in matter of fact or of law in judging of the case as it appeared on the evidence laid before the arbitrators. Here, however, the plaintiff did not propose to. show the case as it stood on the evidence and to point out a mistake in any part of it, but to make out his case afresh', without regard to the evidence which he had before given; and thus to try over again the matters submitted on the original merits. Were he suffered in this manner to throw open the award, he might perhaps succeed notwithstanding the arbitrators had decided justly and properly on the fact established by the evidence; which would be palpably unreasonable and render awards of but little value. The law is, however, that the mistake, to be available, must be shown to be in the judgment of the arbitrators on the premises; and as nothing of that sort was alleged, it is clear that the evidence was properly rejected.

Judgment affirmed.  