
    Scott’s Executors v. Trents, Crump, and Bates.
    October, 1809.
    Arbitration and Award — Setting Aside Award — Mistake oí Arbitrators — Case at Bar. — In a suit in Chancery to set aside an award on the ground of a mistake of the arbitrators, the defendant by his answer consenting that the award may be opened, and an account taken (if the complainants choose) from the beginning, but, at any rate as to certain particulars specified by himself; he is bound to abide by a statement thereupon made by a Commissioner of the Court, refusing to open the account (on his motion) from the beginning, and professing only to correct the mistake alleged by the complainants; (notwithstanding such mistake be not proved independently of the report of the Commissioners;) no evidence having been offered by the said defendant as to the particulars specified by him, and no objection to such report appearing, except that the account was not opened from the beginning.
    Interest — On Decree Pending Appeal. — Interest on the amount of a decree of the Superior Court of Chancery, pending an appeal from that decree, such appeal having been taken before the act of 1803, was not allowed, notwithstanding the case of Deans v. Scriba.
    This was an appeal from a decree of the Superior Court of Chancery, held in Richmond, pronounced the 1st of May, 1803. *The appellees brought a suit in the Charlottesville District Court, upon an open account against John Scott, on the 19th of April, 1792. The cause, by consent of parties, was referred to Richard Adams, and three others, or to any three of them, whose award was to be made the judgment of the court. Previous to the meeting of the arbitrators, (as appears by a certified copy of the instrument hereafter mentioned, brought up since this cause was argued,) Richard Crump, for Trents, Crump and Bates, the plaintiffs in that suit, executed an instrument in writing under his hand and seal, (dated Oct. 25th, 1792,) whereby they covenant and “oblige themselves that, if on a reference of the accounts of Carter and Trent, Alexander and P. Trent, Prosser and Trent, Carter and Trents, and Peterfield Trent, with John Scott, gentleman, there is a balance or balances due him on such reference, they agree that the said balance or balances shall be discounted and allowed out of the debt due from the said John Scott to Trents, Crump and Bates.”
    In September, 1793, the arbitrators returned their award, dated December 10th, 1792, reciting, “that, having examined the accounts existing between the parties, and the other accounts laid before them by the parties, they find a balance of 4721. 9s. 3 l-2d. due from Scott to Trents, Crump and Bates, including interest; which sum of 4721. 9s. 3 l-2d. is by consent and desire of the parties, balanced by a like sum brought from an account then under arbitration, between the said John Scott and Peterfield Trent, and in part of the balance due on the said account from the said P. Trent;” and they award the same accordingly.
    No exception was taken to the award; the court entered judgment in these words: ‘ ‘Therefore it is considered by the court, that this cause be dismissed; the parties haying consented thereto.”
    In March, 1794, Trent, Crump and Bates, filed a bill *in the late High Court of Chancery, the object of which was to set aside this award, as founded in a mistake of the arbitrators, as to the intention of the parties, in the submission to them; suggesting that Scott was not to have any credit with Trent, Crump and Bates, on their account, for any balance which might be due him from the other parties named in the instrument executed by Richard Crump, in their behalf, unless upon an adjustment of all the accounts between him and those parties respectively, there should appear to be a balance due upon the aggregate amount of all those accounts, instead of a balance upon any one of them only; whereas, they had applied part of a balance due from P. Trent alone, to the discharge of their account; although there were balances due from Scott to three -of the other firms, which remain unsatisfied.
    Scott, by his answer, insists, that the terms on which the accounts with the complainants were referred were essentially •different from the representation in the bill; and, for proof, refers to the instrument executed by Richard Crump; and further, that the award shews that all the discounts made therein were with the consent of the complainant. That, however, as the complainants are desirous and seeking to open the said award, he accedes thereto, and prsiys that an account may be taken (if the complainants choose) from the beginning; but, at any rate, in certain particulars afterwards mentioned. An account was accordingly directed; a balance of 6201. Is. 9d. stated to be due from Scott; for which sum there was a decree entered, and an appeal taken into this court; which having abated by the death of Scott, was revived by his executors.
    Randolph, for the appellants.
    Wickham, for the appellees.
    
      
      The principal case is cited with approval in Kincaid v. Cunningham, 2 Munf. 8. See mono-graphic note on "Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 681.
    
    
      
      See monographic note on “Interest” appended to Fred v. Dixon, 27 Gratt. 511.
    
   JUDGE) TUCKER,

(after stating the cases above). I was at first inclined to think that the suggestions of the *bill were supported by the depositions of the arbitrators, as well as by the instrument, executed by Richard Crump, above referred to. And on those grounds I thought the case was brought within the principle stated by Lord Hardwicke, (3 Atk. 644,) and by the master of the rolls, (Ambler, 245,) as also within that of Pleasants, Shore & Co. v. Ross, (1 Wash. 158,) independent of the defendant’s consent to open the awards given in his answer. But I entertain some doubts now upon that point; for the arbitrators do not acknowledge any mistake in terms sufficient, as I conceive, to remove the weight of evidence arising out of their award, viz. that the arrangement was made by consent and desire of the parties. This is strongly supported by the affidavit of Mayo Carrington, one of the arbitrators, who swears that, during the examination of the business, a number of accounts and other papers were exhibited by all the parties present, and that Alexander Trent, Peterfield Trent, and John Scott, were present during the whole time of collating the evidences that were brought forward in the discussion of the business, P. Trent representing Carter and Trent, and Carter and Trents ; and on those documents the award was founded and returned.

What strengthens this evidence very much, is, that on the 27th July, 1793, more than six months after the former award, two of the same arbitrators made a second award, (in a suit depending in Henrico Court, between Carter and Trents, plaintiffs, and John Scott, defendant; and, in another between Peterfield Trent and the said John Scott,) in which latter award they proceed upon the same principles as in the first, declaring the application of a part of the balance due from P. Trent to Scott, to the credit of the latter with Trent, Crump and Bates, to have been made by the consent and desire of John Scott, and Trent, Crump and Bates. I think therefore the award ought not to be set aside on the ground of mistake in the arbitrators. *But the defendant having in his answer consented to open the award, and it appearing that one of his executors, who is now a defendant, had notice of the reference to a Commissioner, and actually attended him, and admitted that the claim of Trents, Crump and Bates against his testator was properly stated; and having also produced in evidence the statements upon which the referees appointed by Hen-rico Court had made up their award in the suits before noticed, without producing evidence of any errors therein, according to the suggestions made in the answer of John Scott, both the report and decree appear to me to be right.

JUDGE ROANE.

Were it not for the consent of Scott, stated in his answer, to waive the advantage gained by the award and judgment at law, on condition of reexamining the accounts in relation to the several items stated in that answer, I should probably be of opinion that the award should not be disturbed. The evidence of the arbitrators would, perhaps, be too loose to vary the construction of an agreement from that admitted by the consent of parties, at the time of rendering both awards, as also at that of the rendition of the judgment in the District Court. Besides, the agreement itself of October 25th, 1792, is not explicit and unequivocal in support of the construction now contended for on the part of the appellees’ counsel. The expression “balance or balances,” twice repeated in that instrument, would rather seem to rebut that construction, and apply to the separate balances found in favour of Scott, with the several firms, and thus correspond with the construction made at the time of rendering the several awards. But, however this point may be, (as to which I give no conclusive opinion,) the appellants must abide by the admission their testator has made; and on a perusal of the Commissioners’ report and the accounts, 11 see no cause to depart from his report in any of those particulars, and concur that the decree of the Chancery Court be affirmed.

*By 'both the Judges, (JUDGE FEEMING not sitting in the cause,) the decree of the Superior Court of Chancery affirmed.

After the Court had delivered their'opinions in favour of affirming the decree in the above case, Mr. Wickham submitted to the Court the propriety of allowing the ap-pellees interest upon the debt from the time of the decree made in the Court of Chancery, until it should be finally affirmed there; and referred the Court to the case of Deans v. Scriba, (2 Call, 420,) the decree in which seems to justify that idea.

JUDGE TUCKER. With all the respect which I feel for the precedents of this Court, I must be permitted to doubt its power to give such a decree as is now asked for. The powers of this Court are altogether statutory. Until the act of 1803, c. 116, which passed after this appeal was allowed, I know of no law that gave to this Court the power of giving damages upon the affirmance of a decree in Chancery. And if interest and damages are convertible terms, as perhaps they may be, I cannot think this Court warranted in giving the latter, under the name of the former, in any case which was depending in this court prior to the commencement of that act. The case of Deans v. Scriba was decided nine years ago, and although there must have been at least a hundred decrees in Chancery affirmed generally since that decision, this is the first application, except in the case of Taylor and Nicholson, for this court to give interest pendente the appeal, that I have heard of: in that case it was refused. Nor do I think we have power to give it in this.

JUDGE ROANE. In the case of Deans v. Scriba, the decree was for a given sum of money, with interest ^thereafter, until paid. On an appeal by the defendant, this Court declared its opinion to be, ‘‘that in all cases of simple contracts, not bearing interest in their original, but on which at law interest is given by Juries, in the way of damages, the interest in equity can only be continued to the time of entering the final decree.” The decree was therefore reversed, (inter alia,) as to this interest; and by the decree of this Court interest was directed “to be computed, on the balance, to the time of entering, the final decree in the High Court of Chancery, in pursuance hereof, the appellants having unjustly delayed the final decree, by their appeal to this Court.” As the Court of Chancery had no power to allow interest, according to this opinion of the Court, beyond the time of entering its decree; and as this Court, reversing a decree, is to render such judgment as the Court below ought to have rendered, and none other, I do not clearly discern that this decision, though upon a reversal, was either warranted by the act just mentioned, so far as it relates to this ulterior interest, or by the general spirit of our acts, (of that day,) which did not allow compensation by way of damages, in the event of affirming decrees in Chancery. As this decree, however, is said to have been rendered upon great consideration, I have certainly no wish whatever to disturb or depart from it. It is however the case of a reversal, which may make a difference; whereas, the case before us is that of an affirmance. It is true that the ground assigned by the Court for giving this ulterior interest in the case of Deans v. Scriba, also applies to this case, viz. that the appellants “have by their appeal, unjustly delayed the final decree;” but, on the other hand, as the law had (at that period) allowed no damages on the affirmance of decrees in Chancery, probably, as was said by this court in the case of Skip-with v. Clinch, “because Chancery cases generally depend upon complex and difficult questions which ought to be settled by the Supreme Court, and therefore appeals in those, seldom *practised merely for delay, are not discouraged,” it would seem to be in unison with the same policy, in the case of an affirmance, to omit giving the ulterior interest' also, if it were even regular in the case of an affirmance, to add to the decree affirmed. This evil, if it be one, is now remedied, except as to prior cases, by the act of January, 1804, c. 29, which not only gives power to the Courts of Equity to award interest up to the time of payment, but also authorizes the appellate Courts to award 10 per cent, damages in “satisfaction of all interest or damages,” from the time the decree was rendered.

On these grounds I am of opinion, that no addition, in respect of this ulterior interest, should be made to this decree of affirmance. 
      
       2 Rev. Code, p. 29.
     
      
       2 Call, 415.
     
      
       Rev. Code, vol. 1, p. 63.
     
      
       3 Call, 88.
     
      
       Rev. Code, 2 vol., p. 29.
     