
    Oliver Ormsby’s Adm’rs v. Bakewell and Johnson.
    In chancery, a party having such an actual interest in the suit as that the-whole defense must be made through him and his transactions, and who may be subject to a decree for costs, can not be examined as a witness. Arbitrators are constituted by the parties, chancellors, judges, and jurors; and have jurisdiction of the law and of the fact. Their award is final, and’ can not be impeached for error. Nothing but fraud, in the parties or in the arbitrators, can be alleged to avoid it.
    It is allowable for arbitrators, after hearing the parties and their proofs, to meet for consultation and decision, without giving either party notice of such meeting.
    This is a suit in chancery, brought from Hamilton county.
    On April 22, 1828, Bakewell and John H. Page, the agent of Ormsby, entered into an agreement in writing, by which it was-
    agreed that Bakewell should, from time to time, for one year from the making of the agreement, furnish to Page funds to purchase-wheat to be manufactured in Ormsby’s steam mill at Cincinnati, for Bakewell; that Page should purchase the wheat, and for every five bushels, Bakewell should have a barrel of superfine flour — Bakewell to pay for manufacturing in proportion to the-price paid for the wheat. When wheat cost fifty cents a bushel, he paid sixty cents a barrel for manufacturing ; as much less than-fifty cents as should be paid per bushel for wheat, so much more-should be paid per barrel for manufacturing. The wheat in the mill, *when the contract was made, was to be manufactured. No other wheat but that purchased for Bakewell was to be manufactured by the mill during the year, unless for the owners of the-wheat, and for the owner not more than five thousand bushels, for which Bakewell was to be allowed twelve and a half cents for' every barrel so manufactured, and twelve and a half cents per barrel on all flour retailed at the mill for Ormsby within the year. Bakewell from time to time delivered to Page, the agent of Ormsby,. money to purchase wheat, and Page, as the agent of Ormsby, from time to time delivered to Bakewell flour under this contract, until the latter part of December, 1828, at which time it was agreed-by them that no more money should be advanced by Bakewell, and that the party’s rights under the contract should be such as-they would have been, had that been the end of the year for which the contract was made. In April next after, the parties differing :as to the amount which Ormsby should pay to Bakewell, in consequence of their transactions under the contract, referred their ■controversy to the arbitration of Charles W. Gazzam, William. Hartshorn, and Calvin Washburn, who awarded that Ormsby •should pay Bakewell seven thousand five hundred and eight dollars and sixty-three cents and costs of arbitration.
    Bakewell recovered a judgment in the court of common pleas for this amount, on the award, which has been affirmed in the ■Supreme Court. Ormsby has paid forty-five hundred dollars on this judgment, with an understanding that it should not affect this .suit, the object of which is to be relieved against this award and judgment.
    The bill charges, among other things, that this contract was made with reference to the wheat crop of 1828; that the mill at the time was out of repair; that Bakewell agreed to lend to Page, agent of Ormsby, one thousand dollars on interest, to be applied to repairing the mill; that Page would not have made the agreement with Bakewell as he did, had he not understood that Bake-well would advance the loan of one thousand dollars; that Bake-well advanced one thousand dollars on April 24,1828, which being considered the loan, was applied to repairs, as follows: Four hundred and forty-seven dollars and seventy-two cents, 30th .June; eleven hundred and sixty-five dollars on the 31st day of July; thirty-seven hundred and forty dollars and sixty cents on 31st August; forty-three hundred dollars on 30th September; seventeen hundred and fifty dollars and seventeen cents on 31st ■October; one thousand dollars and thirty-five cents on 30th November; and fifteen dollars and eighty-eight cents on the 31st December, amounting to thirteen thousand four hundred and fourteen dollars .and seventy-two cents; that large quantities of wheat were purchased by Page for Bakewell before the 8th September, at which time the weevil appearing in the wheat, ^Johnson, a dormant partner of Bakewell, refused to .advance funds to Page, and directed him not to buy wheat, in consequence of which contracts for wheat were abandoned, and no purchases made until the latter part of September, when Bakewell advanced funds, and directed purchases to be made; •wheat was not then to be had to keep the mill employed longer "than to January 1, 1829; when, by mutual consent, the contract was abandoned; that grinding for Bakewell commenced about the 1st of August; that the mill could manufacture about three 'hundred and fifty barrels per week, but it did not do so; that in August five hundred and six barrels of flour were delivered to Bakewell at the mill; in September three hundred and fifty; in October nine hundred and twenty-five; in-November three hundred and seventy; in December and the following months seven hundred and twenty-three;'that nine hundred and forty-nine barrels more should have been delivered, of which five hundred and thirty-seven should have been delivered in the first three months, and four hundred and twelve in the last two months; these nine hundred and twenty-nine barrels at three dollars and. ten cents per barrel amount to twenty-nine hundred and twenty-one dollars and eighty-four cents, which, with the one thousand dollars borrowed of Bakewell, is the sum paid by Bakewell to Page, and not invested in wheat; but that if the nine hundred ■and forty-nine barrels were estimated by the average price of flour at the mill in August, September, October, November, and December, 1828, it would not be more than thirty-six hundred and ninety-one dollars, which, added to the one thousand dollars and interest, the complainant would have paid for peace; that Bake-well demanded fifty-five hundred dollars, which complainant refused to pay, and they then agreed to refer the controversy to the said arbitrators; that on April’ 6, 1829, the arbitators and parties met. Hartshorn, one of the arbitrators, produced a submission bond for signature, which was executed. The arbitrators then heard the statements and allegations of the parties, and adjourned to the 8th of -. The complainants were notified that Hartshorn was sick, and that the arbitrators would not meet on that day; that the arbitrators, without giving complainant any notice of their meetings, afterward met on the 11th, secretly, and without hearing any testimony, even as to the value of flour, and made up their award; that the complainant remained in ' Cincinnati with his testimony as to the value of flour, and as to the loan of the one thousand dollars, and other matters, and wished to adduce it, but was prevented by not receiving notice of the meeting of the arbitrators; that Hartshorn ascertained the price of flour by conversation with the defendants and others not under oath, and renorted it to the other arbitrators, on which report they acted in fixing the amount of the award, taking the-highest *prices, and that they did not consider the one thousand dollars as loaned; that Hartshorn is somehow related to Johnson, and is under many obligations to him, which complainant did not know until after the award was made; that the award is unjust, and was produced by partiality in the arbitrators, or' the fraudulent practices of the defendants.
    Bakewell’s answer denies that the award is unjust, or that it was produced by fraud, or that the arbitrators were either of them partial ; it admits the meeting of the 6th of April, and that Hartshornproduced the submission bond for the parties, which was signed, and states that Page’s account of the money received by Bake-well, and of flour delivered by him to Bakewell, was laid before-the arbitrators, showing a balance of three thousand nine hundred and nine dollars and forty-four cents in favor of Bakewell, and was admitted by the parties to be correct, and that the only difference between the parties was, whether Ormsby should pay this sum with interest (which he offered to do), or the price of flour under the contract, as was claimed by Bakewell; that it was agreed by the parties that the average price of wheat was fifty cents per bushel; that the whole case was submitted to the arbitrators at their first meeting ; that the arbitrators, if they wished testimony as to the evidence, were to call on Ormsby’s miller ; no other testimony was spoken of; that the loan of the one thousand-dollars was not urged by Ormsby, but it was admitted that the three thousand nine hundred and nine dollars and forty-four cents had been paid on the wheat contract; that after the adjournment of the arbitrators at their first meeting, Bakewell received no notice from, nor had he any communication with the arbitrators,, until after they had made their reward ; that the arbitrators ascertained the value of flour by examining the books of flour dealers in Cincinnati. It is admitted by this answer that Bakewell' knew that the mill wanted repairs, but denied that any money was loaned by Bakewell to Page for the purpose of making repairs, or for any other purpose. It states that Bakewell advanced' money, when called on, to purchase wheat; that in September, 1828, he was absent fifteen days, and that while he was absent money was refused to be advanced, and purchases were not made for a short time; that he believes this was done at the instance of the miller, and for the benefit of the complainant; the weevil was then greatly injuring wheat in the mill, and throughout the whole country ; that at this time Page had one thousand five hundred dollars of Bakewell’s money uninvested: that had the money ^advanced been invested in wheat, after crediting Ormsby with the flour delivered by him, there would have been in the mill about eight thousand five hundred bushels of wheat at the end of the year 1828 ; that the suspension of the purchase, the weevil in the wheat, and what related thereto, was submitted to the arbitrators ; that on December 25, 1828, it was agreed that no more money should be advanced, and that the contract should remain as though that was the end of the year; that Bake-well does not know how much flour the mill would manufacture in a given time; that he would gladly have received it faster than he did ; that the meetings of the arbitrators were not secret; that they did not adjourn to hear testimony ; that there has been paid on the award, without prejudice, four thousand five hundred dollars ; that in making the award the arbitrators charged him twice with seven hundred and fifty-six dollars and-sixty cents, the price of manufacturing, and thus reduced the award so much too low, that after the award was made, he, for peace, offered to take five thousand five hundred dollars in full payment; that soon after the contract was made, Johnson, the defendant, became interested in it, and now has the whole interest.
    Johnson’s answer does not vary materially from that of Bake-well. #
    Page, the agent of Ormsby, testifies that when the contract was made with Bakewell, he did not know that Johnson was concerned in the business ; had he known that he was, he would not have made the contract; that he made it believing that Bakewell would not take advantage of his inexperience; that when he made the contract the mill was out of repair; to repair it cost more than one thousand dollars; that he asked a loan of that sum of Bakewell to be-laid out in repairs; that he thought Bakewell would let him have it, and a few days after the contract was made, he asked Bakewell for a part of the sum and was surprised that he refused it; that he did not mention the subject again until he mentioned it to Ormsby in the winter or spring after; that if Bakewell had told him he would not lend him the money, he would not have entered into the contract; that the-repairs were not completed until July. In the latter part of July grinding was commenced for Bakewell, and continued, with occasional interruptions, for the purpose of repairing the mill; that in July and August he purchased considerable quantities of wheat for Bakewell; that in September, Johnson, whom he knew as Bakewell’s agent only, refused to advance money to purchase wheat, ^assigning as a reason, that the wheat on hand was injured by the weevil; he did not say that the money before advanced had not all yet been invested ; that had he said so, an examination would probably have been made, and the money raised; that on the return of Bakewell, he immediately advanced funds to purchase wheat; that in September large quantities of wheat could have been purchased at a price within the contract; that the suspension of purchasing wheat injured the mill, for the farmers had understood that purchases would be made during the whole season % at the mill. In November wheat was at fifty-six cents per bushel, and raised to a dollar, and that a quantity could have been had at this price if the contract had admitted of it; that it was the wish of Ormsby that the deponent and Templeton, .the miller, should be examined before the arbitrators; that he ■was notified once or twice to attend their meetings, and once not ■to attend, as one of the arbitrators was sick. After the award '•was made, the deponent told the arbitrator, Gazzam, that he had no notice of the meeting of the arbitrators, and' Gazzam expressed (Surprise that notice had not been given.
    Templeton, the miller, testifies that in September, 1828, the •weevil injured the wheat in the mill so much that six or seven .bushels were necessary to make a barrel of superfine flour. He ■■told .this to Johnson, and advised the purchase of wheat to be suspended; that Bakewell was then away and Johnson directed the purchase to be suspended,'and that during the suspension large .■•quantities of wheat were offered for sale at the mill; that the mill could manufacture between forty and fifty barrels of superfine (flour per day; that Ormsby requested him to be ready to testify before the arbitrators, but he was not called upon.
    The depositions of the arbitrators were taken. They all agree that the only controversy between the parties before them was, whether Ormsby should pay to Bakewell the money he had received of him, with interest, and for which Bakewell had not •received flour, or should account to Bakewell for flour under the contract. Washburn testifies that the admitted balance was thirty-nine hundred and nine dollars forty-four cents; that the arbitrators had not time to determine the whole matter at their first meeting, and adjourned; that there was delay caused by the sickness of Hartshorn ; that after the arbitrators had settled the principles on which they would award, he heard, in some way, that ^Ormsby wished to have witnesses examined, and that they were not examined because the matters that it was suggested they would prove could not affect the award. Hartshorn ascertained from the merchants and dealers the price of flour at the time it should have been delivered under the contract.
    Hartshorn testifies that the arbitrators met three times; their first meeting was to hear, the second to fix the principles, and the third to make the award. He supposed, at the first meeting, they had got all the testimony either party wished introduced. The weevil was mentioned, and the suspension of the purchase of wheat, he thinks, mutually beneficial; that, before the award was made, something was said about other testimony, and that it was thought not to be material to either party; that in making up the award the arbitrators, estimating wheat at sixty-two cents per bushel, found Ormsby indebted twelve hundred and sixty-one barrels of flour; that this should have been delivered, at the rate of two hundred barrels every two weeks, from the time of making the last delivery, and charged this at the average market price, at three several periods, viz: six dollars forty-three cents per barrel; that he ascertained the prices from merchants, in Cincinnati, dealing in flour at the time; that the prices of the different merchants varied but a few cents, and they took the lowest.
    Gazzam testifies that Ormsby relied, before the arbitrators, on the disastrous grain season, the refusal to advance money, and spoke also of the weevil; that no witnesses were heard by the arbitrators, nor does he know that the parties were expected to be again before them; that the arbitrators adjourned, to meet again, at the time Hartshorn was sick, and no meeting could' then take place, of which fact deponent thinks he notified Ormsby, as Hill, his clerk, testifies. He thinks that the arbitrators considered themselves authorized to act after the first meeting; that no witnesses were examined before the arbitrators; that, either before or after the award was made, Ormsby said that he had important testimony; that had he supposed that there was testimony which would affect the interest of either party, he would have been for hearing it; that he did not take a leading part in making the award,hut that he examined the principles and the calculations, and does not remember any positive objection that he had to either; that he is a dealer in flour. 'It is proved by other witness, that in October, 1828, flour was selling in Cincinnati at three dollars eighty-seven cents and four dollars per barrel; in November at upward of five dollars; in ^December at five dollars fifty cents; in January, 1829, at five dollars eighty-seven cents and six dollars; in February and March at seven dollars; April, six dolara and upward.
    ARGUMENT.
    V. Worthington, for complainant:
    The deposition of Mr. Bakewell is considered by us as inadmissible. The contract was made with him, the award rendered in his favor, and the claim of Johnson is, and must be made through him. It seems to us to be a most extraordinary position to assume, that a contracting party can divest himself of his interest, so as to make himself a competent witness to enforce his own contract, or to obtain damages for the breach of it. We concur generally, that one defendant may be a witness for his co-defendant, where he has no interest in the matter to which his testimony is applicable. 2 Johns. Ch. 550, 614; 6 Johns. Ch. 201; 1 Johns. 556, 557; 1 Atk. 451; 2 Ves. 223, 284; 3 Johns. Ch. 371-612; 3 Atk. 401; 1 Amb. 592; 3 Johns. Ch. 95; 2 Ves. 219, 629; 2 Ves. & Beam. 401; 10 Johns. 119; 15 Johns. 223; 2 Stark Ev. 766, n. 1, and 783, n. 1; 6 Peters, 57; 7 Cranch, 206. Yet we apprehend it can not be assumed that a contracting party can assign the contract, and then offer himself as a witness to sustain a contract that must be derived through him. It is true, Mr. Bakewell says he has no interest in the event of this suit, and let it go as it may, he will not be affected thereby; yet he forms a link in the chain, without which it could not be enforced. Take this very case, for a better one can not be presented for illustration. Bakewel! procures a contract with Ormsby for the manufacture of flour; in the latter part of December, 1828, he terminates it, and insists on damages; procures an arbitration and an award, that is said by his adversary to have been obtained by undue means. In this situation, ho was incompetent to sustain the award ; so he knew and must have been advised. He has a secret partner, sells to him, and then presents himself as a witness to sustain the award. Can it be tolerated? Upon principle it is wrong. It opens the door too wide for the fraudulent devices of the human heart, and presents too much temptation to human frailty to be sanctioned as a fixed principle in a system of wise jurisprudence. It is as near as can be, if it be not giving testimony in one’s own case; it is sustaining one’s own acts to the full amount transferred, and who can be so unbiased *as not to lean to sustain a claim to which he has asserted] a right, and which he has passed into the world as bona fide and true. It is upon this ground we think the testimony of this witness ought not to be received. 6 Peters, 51; 1 Term, 296 ; 8 Peters, 12.
    The inquiry is, can the chancellor set aside the award made between Ormsby and Bakewell upon the case as now presented? The rule upon this subject, as we understand the law, is this : the chancellor will set aside an award for extrinsic causes, not apparent upon the face of the award, such as misbehavior, fraud, corruption, partiality, or mistake in the arbitrators. 1 Swift’s Dig. 471 ; 1 Saund. 327, 328; 1 Atk. 64; 1 Day, 130, 153; 2 Wilson, 148; 8 East, 344; 3 Atk. 494, 644; 2 Day, 553; 1 Dall. 83; 2 Johns. 62 ; 3 Johns. 367; 9 Johns. 39; 1 Conn. 569; 17 Johns. 405; Kyd on Awards, 332, 347, 350; 2 Atk. 304; 3 P. Wms. 361; Ambl. 245; 6 Ves. jr. 70; 2 Ves. jr. 315; 5 Yes. jr. 846; 9 Yes. jr. 67; 1 Wash. 14, 158; 1 Johns. Ch. 101; 2 Johns. Ch. 339, 551. It is also equally true that if no time or place is designated in the submission, it is the duty of the arbitrators to appoint a time and place, and give a reasonable notice to the parties. 1 Swift’s Dig. 489; 8 Peters, 178; Kyd on Awards, 95, 330 ; 3 Atk. 497, 530; 1 Saund. on Plead, and Ev. 227 ; 1 Conn. 498. Also, in the admission of testimony, the arbitrators should be governed by the same general rules as courts of law. Swift’s Dig. 467. When arbitrators have promised to hear witnesses, but afterward make their award without hearing any, the award has been set aside for fraud and corruption. Kyd on Awards, 346 ; 2 Vern. 251. So when they received testimony, where they had notified the parties they wouLd hear no more. 6 Yes. jr. 60. So when they promised to make their award not till after a certain event, but made it before. Kyd on Awards, 346, 347. So when they excluded the parties, and examined the witnesses separately. 1 Dall. 83. So when the necessary time to produce witnesses was refused. 4 Dall. 272. And it is said that, without collusion or gross misbehavior, a material' mistake in point of fact, an erroneous statement of an account, even a plain mistake of law coupled with other circumstance, are grounds for an examination of the proceedings of arbitrators in *a court of equity ; from the result of which, the award may be partially affected in a greater or less degree, and sometimes totally set aside. Kyd on Awards, 350; 2 Vern. 750 ; 3 Atk. 494, 644.
    N. Wright, for defendants:
    Every presumption of law and fact is in favor of the award. The party who would set it aside takes the burden of proof; and more especially because he has resorted to a tribunal of his own creating, to men with whom he has once declared- himself satisfied; also, because, in all amicable adjustments, many things are always conceded by a tacit assent; forms are not relied upon; parties put their cases on the grounds which they consider just; they pass over many technical objections which lawyers might take, in their' own views of right and wrong; they know, between themselves, what they have considered their. mutual rights, how they have acted, and what grounds of reliance they have given to each other; and in submitting cases in their own way, before a spirit of litigation has arisen between them, they are much more likely to submit a case according to real simple equity and justice.
    If a party was required in any particular, to sustain an award prima facie by affirmative proof, the consequence would be, that in all those cases of mutual confidence and understandings, no award could be sustained ; because, especially after a lapse of time, no proof could be given of such tacit understandings.
    In all cases, the party who alleges misconduct or fraud must prove it, and that unequivocally; for the acts of persons are to be reconciled with honesty of purpose, if possible.
    The party who alleges wrong, injustice, or unfairness, in the decisions of an arbitrator, must not only prove it, but must also prove that the same matter, which he now complains of, was submitted to the arbitrators, and unfairly decided on, by them; that is, he must show that he took before the arbitrators the objection which he now takes, and on that objection there was an uniair decision. It is entirely irrelevant for the complainant now to show a state of fact, on which the decision of the arbitrators would be wrong, unless he show that he also presented a like state of fact to the arbitrators. For he can not come here for relief, because he neglected *to present his case fully before the arbitrators; or because he then thought the justice of the case required only one particular view of it, though he is now so excited with the spirit of litigation, that he can see justice in the grounds of resistance — his relief must depend on the fraud or misconduct of the arbitrators; not upon his own néglect or even want of skill in managing his case. Even in case of a trial by jury no new trial is granted, because the party put his defense upon one ground, when he might have taken some other, which, possibly, might have given him a better chance.
    Awards are set aside in chancery, “ only for corruption, partiality, or gross misbehavior in the arbitrators, or some palpable mistake of the law or fact.” Herrick v. Blair, 1 Johns. Ch. 102.
    They will not be set aside, because new evidence is discovered or that a more perfect rule of justice might have been adopted, but only for mistakes on their own principles, or fraud or misbehavior in the parties. Atlee v. Ramsey, 1 Conn. 571.
    Not for mistake or error in judgment. There must be corruption or gross mistake.
    Nor for under or over valuation, if there is no fraud or misconduct. 1 Mad. Ch. 30; Knox v. Symonds, 1 Ves. jr. .369; Underhill v. Vancordtlant, 2 Johns. Ch. 361; 17 Johns. 416.
    It is said in several cases, that mistake of the arbitrators may be made a ground of setting aside an award. The meaning of this is explained in 1 Conn. 571, (above). If the arbitrators make a mistake on their own principles, that is, by a miscalculation, or the like, produce a result different from what they intend, there may be relief, and it is most usually granted (where it can be), not by setting aside the award, but by rectifying it according to its intention. As to any other mistake, such as a mistake in judgment, or rather an error in judgment, it is no ground of setting aside the award. If the arbitrators themselves will come forward and say, that they have made a mistake, and produced a result different from what they intended, it is a different matter. But errors in judgment and wrong conclusions of fact from the proof, are no grounds of objection, except-as evidence of fraud or corruption.
    One point a good deal canvassed in the books is, whether an award can be set aside because arbitrators have erred in the law. All the cases, old and new, agree thus far, that if “matters 'of law are expressly referred to the arbitrators, it is no objection to the award that those matters are wrongly decided; and if they are nol expressly referred, but those matters are complex and doubtful, or blended with fact, the result is the same. Ching v. Ching 1 Madd. Ch. 79; 6 Ves. 282; 1 Johns. Ch. 226: Jackson v. Amble, 14 Johns. 103.
    But there are dicta, which seem to indicate that an award might be set aside, merely because the decision was against law. This, I think, not to be sound law.
    A reference of a case to arbitrators, without any restrictions or reservations, submits the law to their decision just as positively as the facts. No case can be decided without deciding some principle of law as well as fact; and when two men agree that a third shall decide it, what is the meaning of this agreement if it does not cover the whole case? There is no superior tribunal to decide the law for them, and the agreement is a perfect nullity if it does not cover the whole case. It seems to me the merest nonsense that ever was uttered to say that an unqualified agreement to refer a case does not include a reference of the law. Will it, then, be contended that a man is not competent to agree to abide by a wrong decision of the law ? It might as well be contended that he is not competent to give away an article of property that belongs to him. If the cases are properly examined I think it will be found that this, as a general principle, is not sustained by ■ authority. It is too absurd on the face of' it. A gross error in deciding the law has been used as an evidence of corruption; where the arbitrators have intended to follow the law, and by mistaking it have produced a result different from what they intended, so that they would themselves certify that the result was not what they designed; where the terms of the submission contained some restriction in this respect, in these, and perhaps other cases, a wrong decision of law has been made the turning point in setting aside an award.
    •So in ordinary references of proceedings pending at law or in chancery, an error in law is a ground of setting aside a report; but these are a totally different class of cases.
    Judge Story, in Kline v. Catara, 2 Gall. 61, obviously lays down the correct principle in such cases, viz: That a general submission refers both the law and the fact to the arbitrators, and their decision thereon is conclusive. If the ^intention is to restrict the arbitrators in this particular, it must be so expressed in the terms of the submission.
    It is said that BakewelPs deposition is inadmissible. It is of very little importance whether it is read or not; but I take it that it comes within the rule. He has parted with all his interest without recourse, and having no interest in the event of the suit, it is no objection in chancery that he is a party, although he may, perhaps, be made liable for costs. 2 Johns. Ch. 350, 614; 3 Johns. Ch. 201, and other cases cited by complainant.
    Hammond, in reply:
    By the terms of the contract no specific time of delivering the flour was fixed. It was to “ remain in the mill, if so required.”
    The wheat purchased was to be purchased for Bakewell. When so purchased it remained in the mill at his peril. This, I think, is the fair interpretation of the contract.
    Two events not contemplated by the parties occurred:
    Weevil in the wheat in September,
    And a great rise of price in November, continuing until the contract would expire.
    In consequence of the first, and not apprehending the other, the money advanced was not invested in wheat as advanced, and in December it became a ruinous contract to Ormsby, if he should proceed to make purchases. It was then agreed to settle and adjust the contract as if it had run its entire term. What, then, was BakewelPs claim against Ormsby? The decision of this question settles the whole case. Can there be any doubt what that claim was? It was, then, to demand his flour, or the price of it.
    The wheat was to be purchased and manufactured progressively; the flour was to be progressively delivered. &uch is the import of the contract — so the parties interpreted it. Money was advanced from month to month; flour was delivered in parcels from time to time. Bakewell had a right to have his flour that he might take advantage of the market. He could fix its price upon Ormsby by requiring the flour to be then delivered. If he did not make this requisition, and the price of flour fell, it was his loss ; if it raised it was his gain. On the 25th of December this was BakewelPs right Ormsby could not say, in answer to his demand, I *will deliver your flour on the 1st of April. Had flour fallen on the 20th of January to three dollars and ten cents, Bakewell never would have consented to the rule for fixing the price assumed by the arbitrators. It would have been obviously most iniquitous as to him. In a change of circumstances it can not be just as to Ormsby.
    Both parties agree that a new arrangement of the contract was made on the 25th of December. Bakewell states that “ it was to remain and be settled up as of that date, in the same manner as if that had been the end of the year.” What would have been Bakewell’s rights at that period ? Yery clearly, for all flour not delivered on the 22d of April, its market price on that day. Can anybody believe, that with the clear profit of his contract in his hands, on the 25th of December, he intended to give it up, for what might be its value on the 22d of April following? It is but to state the proposition to demonstrate its unreasonableness.
    If the contract was put an end to, on the 25th of December, it fixed the rights of the parties as of that day. If it remained in force, it left the parties to stand upon their rights under it. Suppose it to remain in force, and that no demand of the flour was made 25th of December. What wore Bakewell’s rights? Nothing more than to receive the flour when demanded, or its price at the time of demand. No demand was ever made, with a view to fix the price, or to l’eceive the flour. The arbitration was commenced before the contract ended. By what rule would the damages be ascertained, supposing the contract in force ? To convert the flour into money in Ormsby’s hands demand must be made, and this is not pretended. There is yet, then, no cause of action. None of the parties or arbitrators acted upon this principle. And this shows that all considered the contract at an end December 25. The consequence has been already stated.
    The award assumed that the balance of money unaccounted for, December 25, should be reduced into flour at three dollars and ten cents per barrel, and thus made due at that day one thousand two hundred and sixty-one barrels of flour. It then assumed that two hundred barrels of this flour should be delivered every two weeks; thus running the delivery through the months of January, February, and March, and into April; and then charges Ormsby with an.average price. Now it is most clear that this could not be correct if the contract remained in force, because the rights of the parties Hriust be fixed by their own acts, and Bakewell did nothing to fix his rights, upon the basis assumed in the award. It is equally clear that if the contract was given up, the rights of the parties were fixed by that fact, and could not be affected by subsequent events. The assumptions upon which the award was based shows that the parties and the arbitrators proceeded on the hypothesis that nothing was to be done by either party after December 25. This fact established, and the controversy is settled. Bakewell’s rights were then fixed, and his claim to compensation must be settled accordingly.
   Judge Collett

delivered the opinion of the court:

The objection to the deposition of the defendant, Bakewell, we think, is well taken. It is true that Bakewell states, in his deposition, that he is not interested; but he transacted almost the whole business. Johnson was known in the transaction, to Page, as Bakewell’s agent only. Bakewell made the contract, advanced the money, received the flour, submitted the controversy to the arbitrators, and managed it before them in his own name. The award was, that the money be paid to him. Johnson was not interested when the contract was made. Bakewell is not a mere formal party, he is not a mere trustee; but he is charged with fraud in every important transaction leading to the result that the bill prays against. Against him, relief is prayed ; and he might, in this suit, be subjected to the costs of this suit, the suit at law, and of the arbitration. To prevent plaintiffs at law from fraudulently making the defendant’s witnesses parties to the suit, when no evidence on the trial is given against a defendant, a verdict may be taken for him, and he may then be sworn as a witness for his co-defendant; for the same reason a defendant in chancery, improperly so made, may be examined for his co-defendant, and so may one who is a mere trustee or formal defendant. 2 Stark Ev. 766 ; 2 Madd. Ch. 145. But when he is the all-important defendant, charged with actual fraud and misconduct throughout the whole transaction, and, if he is not interested, has reaped the whole fruits of his misconduct, and may still be liable for more than the costs of the suit, he can not testify for his co-defendant. 3 Johns. Ch. 612.

The view which we take of this case renders it necessary to decide whether a party can have relief against an award, after a judgment has been obtained against him thereon at law. *Persons have a right to settle their own controversies on any terms they please ; and it is their duty to settle them, if they can do so, without too great a sacrifice. They have a right to refer their controversies to arbitration, on such terms' as they can agree upon. By a reference such as is made in this case, the arbitrators are authorized by the parties finally to settle their controversy; and they are necessarily authorized to determine on all the incidental questions, whether of law or fact, that may arise in the investigation of the case. They aré constituted by the parties, chancellors, judges, and jurors for the determination of the controversy. Whenever a court is given jurisdiction of a cause, with it is impliedly given the right to do all things, and to decide all questions, necessary to the right and just determination of that cause.

Arbitrators are generally chosen because of their character for integrity and practical knowledge of the business out of which the controversy arises. They accept the appointment, not for gain, but to reconcile their contending acquaintances with each other; to prevent a protracted, vexatious, and expensive litigation. The proceedings of such judges, so constituted by the parties accepting the appointment, as they generally do, from motives of kindness, useful as they are, by speedily, cheaply, and, in general, rightly determining the controversy, ought to be favorably viewed by the courts, and should not be disturbed, unless it is made clearly to appear that they have not regarded the principles of natural justice in hearing the partios, or giving them an opportunity of being heard; or that they were partial, or corrupt, or were imposed on by fraud; or that they have made a plain mistake in carrying- out the principles they had settled. 2 Johns. Ch. 361-367; 17 Johns. 416; 2 Pet. Cond. 461-466; Davy’s Ex’r r. Fowe, and note, Kyd, 330, 331; 1 Dallas, 161, 162; 2 Bibb, 456-459.

At the first meeting- of the arbitrators, the parties appeared before them.. The account kept by Page, Ormsby’s agent, of money received of and flour delivered to Bakewell, was produced and admitted; from which it appeared that Bakewell advanced to Page three thousand nine hundred and nine dollars and forty-four cents more than he had received flour for. This sum, with interest, Ormsby wished- to return to Bakewell. Bakewell was not willing to receive it, and insisted on having the value of the flour which had been produced, had this sum been vested in wheat, and the wheat manufactured ^according to the contract. This was the only difference between them. They produced no witnesses; each urged his pretensions on the arbitrators. Ormsby relied upon the wheat crop being injured by the weevil, and the refusal of Johnson to advance money; Bakewell relied on the contract. After the parties had been heard, the arbitrators adjourned over to another evening, to agree upon the principles on which they would award. They believed they had got the whole case. Bakewell so understood it. He never afterward had any notice of the meetings of the arbitrators, nor was he before them. So he states in his answer. One of the arbitrators gave Ormsby notice that they would not meet at the time appointed for their second meeting. He received no notice of any subsequent meeting.

After the parties have been heard fully, and the arbitrators have the case, it is no objection to the proceedings of the arbitrators that the parties have not notice, or do not attend their meetings, for the purpose of consulting with each other. The presence of the parties, at the consultation, would not usually be desirable or expedient. Where there is but one arbitrator, after he has heard the parties and got the case, if he has doubts, or calculations to make, he will take time, make up his opinion, either at home or abroad, and make his calculations and his award, whenever it best suits his own convenience; but where there are several arbitrators, they would come together to converse, consult, and calculate.

In the present case, after the arbitrators had settled the principles on which they would award, some of them heard that Ormsby wished' his witnesses examined. They did not hear them, because they thought it would not vary their award. They must have known what he wished to prove, from having heard his statements and remarks when the case was submitted. The weevil in the wheat, the suspension of purchase, while the wheat was receiving injury in the mill, they had taken as facts, and had come to the conclusion set forth in the award. Hartshorn says, that he thought the suspension mutually beneficial. When Ormsby submitted his case to the arbitrators on the mutual statements of the parties, it does not appear that there was the least disagreement as to facts. He gave them the right to decide without further hearing. When he afterward changed his mind, he should have gone to the arbitrators, and insisted on having his *witnesses heard. Had they then refused, the testimony being relevant, I know not but that their reward would be relieved against. But here is no offer and rejection. He changed his mind, but never came to the arbitrators and told them so. He had the benefit of the testimony, for the arbitrators took his statements as facts,. If it had been intended that the parties should again be before the arbitrators, why was not Bakewell notified ? Arbitrators, as well as other judges, should be circumspect, and do or say nothing that would lead to a suspicion of their honesty or impartiality. It would have been better, in the present case, had Hartshorn not drawn the submission bond, and had the arbitrators hunted up Ormsby, notified Bakewell, and heard Ormsby’s witnesses. It would have been more satisfactory to him. But we see nothing in these things which would justify us in setting aside this award. As to the value of the flour, the case went to the arbitrators without any evidence or agreement as to this; flour was high, and fluctuating in price from day to day; at what price it should be fixed depended on the time or times the arbitrators determined it should have been delivered. The arbitrators were all dealers in flour in Cincinnati, and this was probably the reason that this part of the case was left in the situation it was. What could they do, but fix it from their own knowledge, and, if they thought proper, by an examination of the books of dealers in flour at the time? It is often the case that, from the want of evidence as to value, juries have to determine it from their own knowledge. Arbitrators and judges state their cases to friends in whose judgment and integrity they have confidence, that they may aid them in coming to a more satisfactory conclusion. 2 Johns. 353; Kyd, 95 ; 1 Dall. 161, 162.

This is a very hard case on Ormsby. The award is much higher than the sum Bakewell agreed to take. The arbitrators may have erred in determining that Ormsby should pay the value of flour, and not return the money advanced, with interest; they may have erred in fixing the times at which the flour should have been delivered, and in the value of flour at those times; but these were the matters submitted to them for determination. We see a want of circumspection, but not a want of integrity, or a departure from those rules which natural justice required should be observed in hearing and determining the case. 2 Johns. Ch. 358, 361-363; Kyd, 330.

The bill must therefore be dismissed.  