
    Brickhouse v. Hunter, Banks and Co.
    Argued at April term, 1809.
    Decided at October term, 1809.
    I. Arbitration — Submission of Controversy in Suit to Arbitrators — Effect.—Although consent of parties cannot {rive jurisdiction to a Court of Equity; yet, (after an injunction granted improperly,) if the parties refer all matters in difference between them in that suit, to certain arbitrators mutually chosen; consenting that their award may be made the decree of the Court, such consentís binding; the whole case, including the question of law, being thereby transferred from the Court to the arbitrators.
    3. Same — Certainty of Award — Case at Bar.--An award is not the less certain and final, because the arbitrators refer to a report previously made by a Commissioner in Chancery, and declare (in general terms) their concurrence with it, instead of specifying the particulars orsubstance thereof, in the award itself; nor because they submit to the Court the propriety of their award in point of law, and as a guide for the Court in deciding upon it, state the grounds and reasons thereof.
    3, Partnership --Settlement of Accounts — Admissibility of Books in Evidence. — In a settlement of accounts between copartners, the books of the copartnery are admissible evidence, and vouchers for every item need not be pro duced.
    This was an appeal from a decree of the Superior Court of Chancery, held at Wil-liamsburgh, pronounced on the 9th of April, 1803.
    Brickhouse brought an action of account render, against Isaac Smith, one of the partners of Hunter, Banks & Co. and obtained a judgment for an account. In pursuance of which, auditors were appointed by the Court; and, at a subsequent day, at the .instance and on the motion of the parties, three other auditors were added to the former number, and any three of the whole, were directed to examine, state and settle all accounts between *the parties, which was accordingly done; and, no exception beingj taken to their report or proceedings, final judgment was rendered pursuant thereunto, in favour of Brickhouse.
    To this judgment, Hunter, Banks & Co. preferred a bill of injunction to the Judge ■of the High Court of Chancery, who awarded the injunction. The accounts were referred to a Commissioner of the Court, who made a report which, on exceptions taken to it, was recommitted by the Court to the Commissioner, who made a second report, assigning reasons in support of the former, by which he had reported 1181. 9s. 7d. 3-4 to be paid to Hunter, Banks & Co. with the addition of SOI. paid by Isaac Smith on account of the judgment at law, the voucher for which had not before been produced; making in all 1681. 9s. 7d. 3-4. On the 29th of May, 1800, the Commissioner certifies, that the parties appeared by consent at his ■office, and agreed, that if any supplemental report appeared necessary, it might be made. But the Commissioner declined making any; after which, (as is presumable,) by consent of the parties, all matters in difference between them in that suit, were referred to the final determination of Thomas Newton and William Pennock, whose award, or that of an umpire to be chosen by them, was to be made the final decree of the court. They made a report, declaring that they had examined the accounts between the parties, and could find no cause to disagree with the Commissioner in his report. “Submitting, however, to the decision of the Court, the necessity of Hunter, Banks & Co. producing vouchers to certain charges (amounting to 1331. 9s.) objected to by Brickhouse,” (before the Commissioner). They add, having considered the situation of the times (1781 to 1783, during the American war) when much of the business was done, they conceive it was not possible to obtain receipts, as, in many instances, ^advances were made on the sea-shore roads, &c. for the safety of removing goods; in which case only, memorandums of the advances could be made. Under which circumstances, they consider the Commissioner’s report to be as justas the times of transacting the business would admit of, which they submit to the Court.
    The Chancellor of the Williamsburgh district, to which the cause had been removed, being of opinion that, Brickhouse being a partner, and having a right to inspect the books of Hunter, Banks & Co. they were admissible evidence; and concurring in opinion with the arbitrators, that, from the circumstances of the country, it would have been impossible to produce vouchers for every item in the accounts, decreed according to their report; from which decree an appeal was taken to this Court.
    Randolph, for the appellant, relied on the following points:
    1. That the judgment in the action of account was not liable to be examined in equity, on any ground stated in the bill. If it be said that the submission to reference was a waiver of the objection to a want of jurisdiction in the Court, the answer is, that exceptions were filed at the coming in of the report of the referees, expressly objecting to the admissibility of the books of Hunter, Banks & Co. as evidence.
    2. The referees do not substantially and independently decide the cause, but delegate the power given them to the Master Commissioner.
    3. The award is erroneous on its face: the referees only say that they see no cause to differ from the statement made by Master Commissioner Dunscomb, and submit to the Court the propriety of allowing certain items without vouchers. In fact, there was no other evidence before them than the books of Hunter, Banks *&, Co. which were not evidence for them in their own case.
    Williams and Warden, for the appellees,
    contended, that Brickhouse, by agreeing to the reference in Chancery, had opened the judgment at law, and waived all objection to the jurisdiction of the Court.
    The award was final and conclusive between the parties. The only possible objection to it was, thsir submitting to the Court, whether, under the circumstances, it was incumbent on Hunter, Banks & Co. to produce vouchers in support of certain charges. They decide that vouchers were not necessary. This they had a right to do, and their decision upon the case in matters of fact, cannot be reviewed by the Court, when no corruption or partiality appears,  Riven if they had taken the opinion of Master Commissioner Dunscomb, the award would not have been erroneous on that account. Arbitrators may take the opinions of others as a guide to their own decisions; and when adopted, it makes it their own act. 
    
    The books of Hunter, Banks & Co. who were partners with Brickhouse in the vessel which was the subject of this controversy, were clearly admissible evidence under the authority of the case of Fletcher v. Pollard,  They were the books of all the partners, quoad this transaction, each having a right to inspect them. In truth, Brickhouse has received considerable credits extracted from the books alone, and it is contrary to all principle, to permit a party, to claim credits from books, without admitting their debits also.
    
      
      Arbii ration and Award — Submission of Matters in a Suit to Arbitrators — Effect.—In Ligón v. Ford, 5 Munf. 15, It is said, the parties having by consent submitted all matters, in difference between them in the suit, to the decision of arbitrators, the principal of which matters was the amount of damages, which the appellee ought to recover from the appellant; such submission precludes the appellant from contending, that the amount of the damages was conclusively settled by the verdict, and is a waiver of the objection that greater damages are given by the award, citing Brickhouse v. Hunter, 4 Hen. & M. 363.
      And in Riley v. Jarvis, 43 W. Va. 48, 26 S. E. Rep. 367, citing the principal case, it is held that where an order is made by consent from the justice court, submitting the matter in controversy to arbitration, the submission is not revocable except by order of the justice, under statute. The principal case is also cited in foot-note to Pleasants v. Ross, 1 Wash. 157.
      See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
      Failure of Bill to Show Equity — Waiver of Objection. —In Dey v. Martin, 78 Va. 5, it is said: “The appellant, however, insists that the bill on its face shows no case for equitable relief, and that it ought to have been dismissed. But no such objection, by demurrer or otherwise, was made in the court below, and it is now too late to urge it. See Vanlew v. Bohannan, etc., 4 Rand. 540; Brickhouse v. Hunter, etc.. 4 Hen. & M. 363.”
    
    
      
      Partnership. — See monographic note, on "Partnership” appended to Scott v. Trent, 1 Wash. 77.
    
    
      
       1 Ves. jun. 369; 3 Ves. jun. 15,Morgan v.Mather.
    
    
      
       5 Ves. jun. 848, Emery v. Wase.
    
    
      
       2 Hen. & Munf. 543.
    
   JUDGE TUCKER,

(after stating the case,) proceeded: That the Judge of the High Court of Chancery, ought not to have awarded the injunction prayed for, after the judgment in the action of account render had been ^regularly and duly obtained, without any exceptions taken, either to the report of the proceedings of the auditors, a part of whom .seem to have been nominated and agreed to by the parties, I am much disposed to think. For the action of account render comes the nearest to the proceedings in a Court of Equity, of any other that I recollect at the common law. But the voluntary consent of the parties to the reference made by the High Court of Chancery to the final determination ■ of Thomas Newton and William Pennock, judges chosen by the mutual act and consent of the parties, appears to me to do away the objection to the Court’s sustaining the bill, instead of dissolving the injunction upon the coming in of the answer of Brickhouse; and, though I was at first inclined to doubt whether the arbitrators had made an award or not, upon more mature consideration and inspection of it, I am satisfied it is a good award in equity, and therefore that the decree be affirmed.

JUDGE ROANE.

The reference by consent in this case, is a waiver of the objection, (if it would otherwise have availed the appellant,) that the-appellees were concluded by the decision in the action of account in Northampton Court. This cause (the injunction) made the merits of that decision a part of the matter in controversy to be decided on in it; and the whole case, including this question of law, was transferred from the Court to the arbitrators.

The award of the arbitrators (Newton and Pennock) adopts the report of the commissioner Dunscomb as their report, and decides that vouchers were not necessary to be produced, for the reasons stated in the latter part of the award. It is true it also submits to the Court the propriety of this decision in point of law, and, as a guide for the Court in declaring upon it, states the grounds and reasons of their opinion in this particular. *In this case, this award comes up to what seems to have been required by this Court in the case of Pleasants v. Ross, namely, that where an award is to be impeached on the ground of a mistake of the arbitrators as to facts or principles, such, mistake ought to appear on the face of the award itself;, and that such mistake is not to be proved by affidavits, which are only proper to establish partially or misbehaviour in the arbitrators, or the like.

The award before us then is final; but it has gone on to aid the Court (by stating a special matter on the face of the award itself) to decide whether the arbitrators were mistaken in the principles of their decision or not; and this brings us to that question.

It seems to me, that for the reason assigned in the award itself, and more particularly for those assigned in the decree in question, vouchers were no necessary to be produced. Those reasons are, (as resulting from those two documents,) the situation of the times when the advances were made; that the appellant was a voluntary partner of the appellees, who acted as ship’s, husband, with his consent by his ratification ; that, as a partner, he had always a right, and undoubtedly the opportunity to inspect the books of accounts; that, from the confidence resulting from his being a partner, the less care would have been taken-by the appellees to preserve the vouchers, than would be thought necessary in the case of unconnected strangers; that, from the nature of most of the articles mentioned in the account, they seem necessary for a schooner engaged as the Buckskin was;. and that it is unreasonable that the appellant, who had availed himself of the books-of the appellees when in his favour, should object to them on the ground of the want of vouchers, when they went to charge him.

On these grounds, I think the Court of Chancery rightly judged that the principles on which the arbitrators went as to the point in question, were not mistaken *nor illegal; and this opinion making the award perfect, the said Court' was correct in decreeing pursuant thereto. I am therefore of opinion, that the decree should be affirmed.

JUDGE FLEMING.

The reasons stated1 by the Chancellor himself, as the foundation of his decree, appear to be perfectly satisfactory. I have only to add, that the decree is to be affirmed, by the unanimous, opinion of the Court. 
      
       1 Wash. 158.
     