
    *Head v. Muir & Long.
    January, 1885.
    Awards — Equitable Relief from — Objections Available at Líiv/, — A Court of Equity ought not to set aside an award, for obiections which might have availed in a Court of Law. and which the party failed to urge there, without a good excuse for the omission.
    Saüie — Setting-Aside—Ground for. — An award cannot be set aside, either in law or equity, except for errors apparent on its face, misconduct in the arbitrators. some palpable mistake, or frauds in one oí the parties.
    This was an appeal from the Superior Court of Chancery of Fredericksburg. The case was this:
    Head and Long having sundry suits between them, depending in the Superior Court of Law for Spottsylvania, agreed to refer all matters in dispute between them, in these suits to Briggs and Stevenson, whose award was to be made the judgment of the Court; and if they should disagree, the said arbitrators were to choose an umpire. The award, thus rendered, was io be made the judgment of the Court. This reference was made an order of Court, on the 27th of October, 1819. The arbitrators disagreeing, appointed Lewis their umpire; who made an award in favor of Long, for $138 50, with interest, &c. This award was made the judgment of the Court, on the 26th of October, 1822.
    Head filed a bill in the Chancery Court, to injoin this judgment, setting forth the following reasons: that the arbitrators, after having examined the accounts on both sides, came to a determination to render an award in favor of the complainant, for $215 42, on the 29th of June, 1820; and Briggs was requested by Stevenson, to draw up an award to that effect: but a short time after, as the complainant was informed, Stevenson declined signing the award, alledging that Long requested him not to do so, because there was an item of $90, in relation to a Bank transaction allowed to the complainant, which ought not to be admitted: that afterwards, on the 17th of October, 1820, another order was made, without the knowledge of the complainant, *in the said Superior Court, enlarging the submission to all matters in dispute between the parties; and,he did not know of its existence, until after the rendition of the judgment: that he was informed by Briggs, that Lewis was chosen as umpire to decide on the aforesaid $90, which, as he understood, was again decided in his favor: that the complainant and the said Long had executed their bond to Bignall and West for $5S0, which became due on the 24th day of June, 1821, and which was given for the purchase of the old play-house lot; and which bond ultimately came into the possession of Long, by assignment; one half of which, the complainant was liable to pay, on account of their purchase: that Long contended, that the bond ought to be brought into the account between the parties; which was objected to by the complainant, because it was not within the reference, and because it was not due; in which he was sustained by the arbitrators: But, after the bond became due, Long renewed his pretension to charge the complainant with half of this bond: The complainant again resisted this pretension; but, if Long was permitted to charge him with half of the bond, he claimed to shew, that he had paid $25 in part thereof, and had other just set-offs against the bond; but this was denied him, upon a misapprehension that these items were of anterior date to the 29th of June, 1820, and therefore, ought not to be allowed: that, when the complainant called the attention of the arbitrators to the vouchers which he had exhibited, he was informed by Stevenson, that the arbitrators and umpire had decided, and would not re-consider it: that a mistake had also been committed of $60, which ought to have been credited to the complainant: that Long transferred whatever might be due upon the bond aforesaid to Muir, and execution had issued upon the judgment, for his benefit: that the complainant, being about to go upon business of importance to Richmond, on the first day of the last term of the Superior Court of Spottsvl-vania, called on Briggs to know whether the award would *be made out and returned to that term, and was informed, that he, (Briggs,) was not certain whether it could be made out and returned, or not; but that it was much pressed for, and he was ready to act at any time: that the complainant then informed Briggs, that he wished very much to be present, to get the errors corrected, and the first day of the term was the only day that he expected to be present during the Court: that he then called on Stevenson, as he had repeatedly done, relative to the reference; but, for some cause or other, he did not seem inclined to attend to the subject: that the complainant, taking it for granted, that the business would not be attended to, set out for Richmond on the next day, and did not return home until the last day of the term: But, contrary to the complainant’s expectation, the award was made by the umpire, dated the 22d day of October, 1822, (though the umpire appears not to have been chosen until the 23d,) and returned to Court, and judgment rendered thereon, on the 26th of the same month, being the last day of the term; whereby the complainant was deprived, of all opportunity of making any objection to the award, in the Superior Court. He therefore prayed, that Long & Muir might be made defendants to his bill: that the judgment aforesaid might be injoined, until the matter could be heard in equity, &c.
    The injunction was awarded.
    Muir answered, 1. By pleading the award and judgment in bar of any further investigation of the subject. 2. That it is true, that the respondent, (Muir,) is entitled, by transfer from Long, to the benefit of the said judgment, or to any balance due him from the complainant: that his interest in the subject arose after the investigation of the arbitrators had commenced, and they had partially acted: that he is not acquainted with all the accounts between the parties, and cannot answer the bill as to the errors stated in the proceedings and calculations of the arbitrators; but, that he does not admit them, or believe them to be correct: *that, with regard to the play-house bond, the set-offs claimed by the complainant were taken into consideration by the arbitrators, and, after mature examination, rejected: that the complainant not only had an opportunity of objecting to the award, but counsel actually appeared for him, and did object to entering the award; and, it was not until authorities were produced by the respondent’s counsel, and after a day’s consideration, that it was received and the judgment given.
    Long did not answer the bill.
    On motion of the plaintiff, the plea of the defendant Muir was set down to be argued; and afterwards, on motion of the defendant, the injunction was dissolved. From this order, the plaintiff appealed.
    Johnson, for the appellant,
    contended:
    1. That the circumstance of a judgment having been rendered at law, on the award, is no bar to equitable relief, in a case like the present. The Court will not require reasons why no -defence was made at law, because this is not an award under the statute, but at common law. The Courts of Law and Equity have concurrent jurisdiction. That Courts of Equity are not very strict, as to the time when objections are made, even to awards under the statute, is proved by Kyd on Awards, 231-3.
    2. The plea is defective in not averring, that the umpire acted in pursuance of the submission.
    3. The arbitrators exceeded their power, in taking into consideration the play-house bond. The bond did not become due until the 24th of June, 1821, and the orders of reference were made in 1819 and 1820. This subject, therefore, could not come within the scope of the orders.
    As to the second order of reference, it was made by the counsel of Head, without his consent. The power of an attorney is confined to the matters in controversy, and *the bond was not a matter in controversy, because it was not then due.
    4. The arbitrators and umpire were guilty of misbehaviour; 1. In refusing to sign the award. , Arbitrators ought to be impartial, and small matters are sufficient to vitiate an award. Even a private interview with one of the parties will be sufficient. 2. In refusing to take into consideration the set-offs against the playhouse bond. 3. The arbitrators state, that they had disagreed and chosen an umpire, when they had in fact agreed. Arbitrators are functi officio, after they have ouce agreed.
    S. Supposing the award to stand, the set-offs against the play-house bond ought to be allowed in equity, as they were not considered by the arbitrators.
    Stanard, for the appellees.
    All the objections urged by Mr. Johnson, might have been made at law, and a party ought not to be permitted to neglect the opportunity of legal defence, and then come into the Court of Equity on the same grounds. The objection, that the award was out of the submission, because it related to matters not in suit between the parties, if it be well founded, might have been made at law. But, it was not well founded. The arbitrators were not confined to the suit of 1 lead v. Long. The first order was, indeed, so limited; but, the second extended to “all matters in controversy between the parties.”
    The case of Flournoy v. Holcombe, 2 Munf. 34, proves that, where questions, relating to awards, are considered and decided at law, equity will not interfere. These matters were before the Court of Law. The answer avers it; and the documents exhibited with the bill, prove it. But, if they were not, no excuse has been given why they were not used at law. The only apology pretended by the complainant, is, that he was compelled to be absent during the trial. But, of what importance was his presence, when he had no witnesses or other evidence?
    *The objection, that one of the arbitrators agreed to the award, and afterwards refused to sign it, may receive the same answer that applies to all the rest. It was an objection that might have been made in the Court of Law. But, the objection is unsound. A referee may change his opinion before the award is signed.
    Nor is the plaintiff at liberty to urge the objection, that the second order was the act of the counsel, and not of the parties; because, the plaintiff acted under that order, and thereby sanctioned it.
    As to the objection, that the plea was dejective, iri not stating, that the award was made in pursuance of the order of reference; the objection would not be good, even at law, except upon special demurrer.
    Calculations on which the award is founded, are not a fit subject of enquiry. Taylor’s adm’x. v. Nxcolson, 1 Hen. & Munf. 67, 70; Underhill v. Van Courtland, 2 Johns. Cb. Rep. 360; Ridout v. Paine, 3 Atk. 494; Anon. 3 Atk. 644; Carneforth v. Geer, 2 Vern. 705.
    It is said, that these claims are a fair subject of discount; but the award perpetually concludes the plaintiff as to those discounts.
    Johnson, in reply.
    As to the point of jurisdiction, a Court of Equity has original cognizance of the subject, and does not lose it by the Court of Law having jurisdiction likewise. That a Court of common law only has jurisdiction in cases arising under the statute, is proved by the cases of Brown v. Brown, 1 Vern. 157; 3 Vin. Abr. 139, PL 39; South Sea Company v. Bampstead; Eeatlierstone v. Cowper, 9 Ves. 67. The plaintiff did not know, that the umpire was appointed, until after the award was rendered. The playhouse bond was not included in the order of reference, because it was not then due. An alteration in a submission, including a. new subject, is void. Mills v.-, 17 Ves. *419. The arbitrators exceeded their authority in giving damages against the plaintiff. The attorney had no power to enlarge the submission beyond the controversies then in suit. Kyd on Aw. 26, 27. The arbitrators were guilty of misbehaviour, in talcing a subject into consideration, which was not before them, and in rejecting the set-offs. This is only a motion to dissolve, and the allegations of the bill are not denied. It would be premature to send the plaintiff out of Court., in the present state of the pleadings and evidence.
    January 25.
    
      
      See monographic nnte on “Arbitration and Award” appended to Bassett v. Cnnningliam, 9 Graft. 684.
      Tbe principal case was cited with approval in Pollock v. Sutherlin, 25 Gratt. 95.
    
    
      
      Judges Brooke and Coalter ahsent.
    
   JUDGE CARR,

delivered his opinion:

We gather from the bill, that Head brought two suits against Long, in the Superior Court of Law for Spottsylvania county: that, on the 17th day of October, 1819, orders were made in these causes, referring them to the arbitration of Briggs and Stevenson, (the counsel in the suits,) and 1o their umpire, if they could not agree. Under this order, several meetings were held by the arbitrators. On the 17th of October, 1820, another order was made in the causes, enlarging the submission to all matters in dispute between the parties. The arbitrators, not being able to agree, appointed Lewis their umpire. When this was done, we do not exactly discover from the record; but it was certainly before the 20th of November, 1821. On the 23d of October, 1822, the arbitrators certify, under their seals, that, not being able to agree, they had appointed Lewis umpire; and on the 22d of October, 1822, the umpire awards, that Head shall pay to Long $138 50, with interest from the 12th of November, 1821, and costs of suit. On this award, judgment was entered for the defendant, by the Superior Court of Law, on the 26th of October, 1822, for the sum awarded, inter-és!' and costs. The purpose of the bill before us, is to injoin this judgment, and set aside the award. It charges the arbitrators with excess of power, omissions. miscalculations, mistakes, and *misbehaviour. Muir, the only defendant who has appeared, pleads the award in bar, and answers, denying the charges of miscalculation, &c. Upon this answer, the injunction was dissolved; and the appeal to us, is from the order of dissolution. The bill does not place the application to equity, on the ground, that the charges against the arbitrators, are such as would not be heard in a Court of Law; but states, that plaintiff was prevented, by absence, from -availing himself of them, before that tribunal.

If they were available there, and the plaintiff, without a good excuse, has failed to make his defence, we ought not to hear him; for, a party should not be permitted by his own wanton negligence, to raise an equity which could otherwise have had no existence. It is considered settled doctrine, I believe, that whether the reference be by rule of Court, or under our statute, (which is taken, with some variation, from 9th and 10th Wm. 3, ch. 15th,) a Court of Law, though it refuses to enter into the merits of an award, will take notice of legal objections on the face of it, or such as go to the misbehaviour of the arbitrators. Lucas v. Wilson, 2 Burr. 701; Chase v. Westmore, 13 East, 357.

Some of the objections at least, which are stated in the bill, are of this character. Why did not the plaintiff make them at law? His excuse is, that being called by business to Richmond, about the time that the Superior Court of Law would hold its session, he enquired of Mr. Briggs, whether the award would be returned to the next term, expressing his earnest wish to be present, when it should be returned; that Briggs told him, he was not certain that it would be returned; but, that it was exceedingly pressed for, and he was ready to act. 'He suggested, however, that application should be made to Stevenson. Head applied to him, but received no satisfaction; whereupon he left the Court, and did not return, till the last day of the session; on which day the award, (having been returned during the term,) was entered up as the judgment of the Court. • It is obvious, in the first place* to remark, how *strange a course was taken to arrive at information. Head had known, for twelve months, that the arbitrators had disagreed and chosen an umpire. He must have known, too, that after this, they had nothing more to do; the business of making the award having devolved on the umpire. Why did he not apply to him, to know whether he would return his award during the term? But, from the information he received, he ought surely to have concluded, that the award would be returned. The case bad stood on the reference for more than two years, and Briggs told him that the award was exceedingly pressed for, and he was ready to act. If, then, he deemed his presence material, he ought, by no means, to have left the Court. But, why was his presence necessary? I cannot conceive. He does not state, that he had any witnesses to summon, any affidavits to take, any papers or documents to collect. In truth, we cannot but conclude, that he had none of these things to do; for, in the case before us, he has examined no witness; and, every paper filed to impeach the award, bears, on its face, that it is a copy from the original, filed in the law record. For what, then, should he have been present? Instructions to his counsel would have answered every purpose. Indeed,' I think we may consider it fairly in proof, that the defence, now set up in equity, was actually made at law; for, Muir, in his answer, avers positively and responsively, that so far from the plaintiff’s having no opportunity of objecting to the award, in the Court of Law, counsel actually appeared for him, and did object; and, it was not till authorities were produced by the respondent’s counsel, and after a day’s consideration by the Court, that the award was received, and judgment entered on it. This, then, is an attempt, to bring before a Court of Equity, for revision, the same matter which has been tried at law; and, it was contended in the argument, that equity, having concurrent jurisdiction originally, was not ousted by the law trial. But, surely it is too late to stir this point. In Flournoy v. *Holcombe, 3 Munf. 34, (a case like this, of an award,) it is considered a point too well settled to need a reference to authorities, that equity cannot revise a decision of a Law Court; and, that where there is concurrent jurisdiction, and the Law Court1 first gets possession of the subject, equity is bound by its decision. In Ross v. Overton, 3 Hen. & Munf. 413, (another case of an award,) the same law is laid down, with a reference to a long list of cases decided in this Court. Doctrines so well settled, ought not again to be drawn into question.

This case was afterwards brought up for a re-hearing, before Lord Loughborough. He heard the argument against the award, but stopped the counsel m support of it, saying, “I have no authority to re-view the proceedings of the arbitrators. All the matters before them were within the compass of the submission. All the argument is upon error and mistake; but you have not stated corruption, misbehaviour or excess of power, which are the only three grounds f know, for setting aside awards.” After some further remarks, he concludes thus: “If parties litigant agree to refer the whole matter to Judges of their own choice, 1 cannot correct the error of their judgment; but, one of these three grounds must be made out.” In Dick v. Milligan and Milligan v. Dick, (cross suits) 3 Ves. jr. 23, before the same Lords Commissioners, the suits arose out of partnership transactions, and an order of reference was made, which expressed, that the arbitrators were to take an account of all the dealings and transactions, in like manner as if the same bad been referred to the master, and that the parties should be concluded and bound by the award, &c. The arbitrators awarded a general balance to Milligan, but set forth no particular items. The award was excepted to for this reason. Commissioner Eyre said, “There is great difficulty in sustaining any exception, bringing at all into the consideration of the Court, any thing reia'ing to matter of fact. Being referred lo the judgment of arbitrators, it is referred to filial judgment, where there is no imputation upon the conduct of the arbitrators. The matter of exception which is open upon the award, is, whether any thing illegal upon the face of it, has been done by them, and whether the terms of the submission have been pursued.” In the argument, counsel had compared the award to the report of a master. Commissioner Eyre says, “There is this great difference between *them. An arbitrator is constituted Judge of the facts, without appeal; the master is only to prepare for the Court, who is really the Judge, and the master only the minister; whereas, in the other case, the arbitrator is the Judge, and not the Court. The Court has divested itself of all judgment. This is the case of all arbitrations in Courts of Law; and there is no distinction, as to that point, between arbitrators, in Courts of Equity and Law.” In Emery v. Wase, 5 Ves. 846, Lord Alvanley said, “that arbitrators, chosen by the parties, ever had, and he hoped, ever would have, both at law and in equity, such authority, that the award should not be overhauled, unless upon fraud, imposition, or gross mistake.” Since the time of Lord Eldon, there seems to have been few questions raised as to the power of relief, against the mistaken judgment of arbitrators. The question is considered entirely at rest. In Anderson v. Darey, 18 Ves. 449, Lord Eldon says, “The rule as to mistake, is, that where there is clear and distinct evidence of mistake, the nature of it, and that it was made out to the satisfaction of the arbitrators, as to which Lord Thurlow insisted on having their affidavit, Courts both of law and equity will interpose; the one, by setting aside the award; the other, by refusing to make it a rule of Court.” These are some of the many cases in the English books. Most of them (and some which I have, not noticed) are brought together, and commented on, with that ability for which he is so remarkable, by Chancellor Kent, in several cases reported by Johnson; particularly in Underhill v. Van Cortland, 2 Johns. Ch. Rep. 339; and though the decree, in this case, was reversed by the Court of Errors, 17 Johns. Rep. 405, that was upon a difference about the facts of the case, and does not touch the law.

But, suppose we give to the objections to this award, all the weight they would merit, considering them as never having been before the law Court, but brought originally before a Court of Equity. Could they avail to set aside the award? I am clearly of opinion, that they could not. All our equity cases on this subject, (and there are very many of them,) go to establish this doctrine, “that the reasons for setting aside an award, must appear on the face of it, or there must be misbehaviour in the arbitrators, or some palpable mistake.” The cases, in our own Reports, are too familiar to need quotation. But as there are many cases in the English books, which fully sustain, if they do not even go a step beyond ours, I have thought it might not be amiss to cite a few of them. In Walter v. King, 9 Mod. 63, the bill was to set aside an award, for palpable excess of damages, for, the plaintiff had goods of the defendant, to 1. 7 10 only, and yet he was awarded to pay 361. Lord Macclesfield said, he would not set aside the award, on account of any hardship therein, because the arbitrators were Judges of the parties’ 'Own choosing. Lord Hardwicke, in a variety of cases, declared that a bill to set aside an award, must be founded upon the fraud, corruption or misbehaviour of the arbitrators; that they were Judges of the parties’ own choosing; and therefore, they could not object against the award as an unreasonable judgment; and that whether it was rightfully or wrongfully determined, the parties were bound by it, and there would be no end *of controversies, if it were otherwise. Ives v. Metcalf, 1 Atk. 63; Lingwood v. Eade, 2 Atk. 504: Ridout v. Paine, 3 Atk. 494; Tittenson v. Peat, 3 Atk. 529. The exceptions or qualifications to this rule, are mentioned also in these decisions of Lord Hardwicke; for instance, misconduct in the arbitrator, or fraud in one of the parties. He was also inclined to extend relief to cases of palpable mistake as to figures, or of one thing or fact for another. But the mistakes, here meant, do not comprehend errors of judgment, in its fair exercise upon a subject. Thus, in Knox v. Simmonds, 1 Ves. jr. 369. Lord Thurlow observed, “that a party to an award cannot come to have it set aside, upon the simple ground of erroneous judgment in the arbitrator; for, to his judgment they refer their disputes; and that would be a ground of setting aside every award. There must be something more, as corruption or gross mistake, either apparent on the face of the award, or to be made out by evidence; and in case of mistake, it must be made out to the satisfaction of the arbitrator.” In Morgan v Mather, 2 Ves. jr. 15, the Lords Commissioners Lyre, Ashurst and Wilson, express themselves strongly on the general doctrine of awards. Wilson says, “It would be a melancholy thing, if, because we differed from the arbitrators in points of fact, we should set aside awards. The only •grounds for that, are, 1. That the arbitrators have awarded what was out of their power. 2. Corruption, or that they have proceeded contrary to the principles of natural justice, though there be no corruption; as if, without reason, they will not have a witness. 3. That they have proceeded upon a mere mistake, which they themselves admit. I am of opinion, that when any thing is submitted to arbitration, the arbitrator cannot award contrary to law, ’‘‘because that is beyond their power; for, the parties intend to submit to lliQin only the legal consequences of their transactions and engagements.”

In this case, the Chancellor introduces his re-view of the cases, with the following strong and apt remarks: “The decision of arbitrators is the decision of a tribunal of the parties’ own choice and erection. It is a popular, cheap, *convenient and domestic mode of trial, which the Courts have always regarded with liberal indulgence.- They have never exacted from these unlettered tribunals, this rusticum forum, the observance of technical rule and formality. They have only looked to see if the proceedings were honestly and fairly conducted, and if that appeared to be the case, they have uniformly and universally refused to interfere with the judgment of the arbitrators.” By many quotations, among which are several cases of this Court, the Chancellor also shews the remarkable co-incidence and harmony, on this subject, between the English law, the decisions in the various Courts of the United States, and the doctrines of the civil law. He closes this part of the case, with these remarks: “In finishing this review of the most material Chancery decisions on awards, I think we may safely conclude, that the law is as well settled on this, as on any other subject whatever. The conclusiveness of the judgment of arbitrators has received the uniform sanction of the Court, for a series of ages. The rule is not now to be shaken or disturbed. It is founded on so much reason and public convenience, as not to be confined merely to the Court of Chancery, but to have met with the general approbation of mankind.”

The law of awards being thus conclusively settled, let us examine its application to the case before us. The award is a simple judgment, that the plaintiff pay to the defendant so much money; no explanation added; none of the items of which the sum is composed; none of the grounds, principles or calculations, on which the award rests, are given, either in the award, or in any paper annexed to it. To the attempt made by the bill, to open the whole litigation again, the defendant pleads the award; and, by answering, denies the mistakes, &c. charged on the arbitrators. To meet this plea and answer, there is not one tittle of evidence. Surely, there can be no hesitation in affirming the judgment of the Court below.

*It may seem that I have dwelt longer than necessary, on so plain a case; but as the argument was very lat-itudinous, assailing established principles, and contending for a power in Courts of Equity over awards, which would, in effect, place them on no better ground than the reports of commissioners, I thought that it might not be amiss, thus to re-trace and fortify the ground taken in our own books on the subject.

JUDGES GREEN and CABELL, concurred; and the order of dissolution was therefore affirmed. 
      
      Note by Judge Carr. — Wnere, upon a general reference. tb<> arbitrator meaning- to decirle according to law. mistakes; the Court will set that right; but if parties choose to refer a naked question of law to a person to decide that question between them, instead of having- the decision of a Court, the Court, will not interfere. Young v. Walter, 9 Ves. 364; Ching v. Ching, 6 Ves. 282.
     