
    James M’Alister v. John M’Alister.
    October Term, 1793.
    Arbitration — Admission of improper Evidence by Arbitrators — Effect.--—If upon a reference by a rule of Court, tbe arbitrators admit improper evidence, such as the testimony of one of the parties, or of his wife, the other party ought to he permitted by tiie Court to prove "that fact: and being proved, the Court ought to set aside the award, and direct a trial by jury.
    The defendant in error brought an action upon the case against the plaintiff, in the County Court of Berkeley — Plea non assump-sit. By a rule of court entered in November 1789, the parties, submitted all matters in difference between them in this suit, to the final determination of two arbitrators, mutually chosen, and in case of their disagreement, they to chuse an umpire, whose award, or the award of such umpire thereupon, to be made the judgment of the court.
    The two arbitrators not agreeing, named an umpire, who, “after examining the papers filed in the suit, and after considering the claim of the plaintiff, and the various charges exhibited in an account rendered by the defendant, in bar to the claim of the said plaintiff, declared his opinion; that the. plaintiff should not recover his said claim, but on the contrary, his suit be dismissed at his own costs. ” This award being returned, was objected to by John M’Alis-ter, the plaintiff below, whereupon a rule was made, to shew cause, why the award should not be set aside?
    Upon this rule, a motion was made to set aside the award, and the plaintiff, in support of his motion, offered to prove by the arbitrators and umpire, that the umpire had admitted the depositions of James M’Alis-ter, the defendant, and of his wife, *to be read as evidence before him. But the court, refusing to examine these witnesses, determined that the award should be made the judgment of the court. To this opinion, the plaintiff filed a bill of exceptions, which was sealed.
    From this judgment, John M’Alister appealed to the District Court of Winchester, where it was reversed, the award set aside, and a new trial directed; the court being of opinion, that the oath of the party, was improperly admitted as evidence by the umpire.
    The plaintiff in this court, obtained a su-persedeas, to the judgment of the District Court, assigning for error, that that court reversed the judgment of the County Court, because the umpire admitted improper evidence, whereas, if the County Court erred in refusing to examine the witnesses, all that the District Court should have done, would have been to reverse that judgment, and to direct the evidence to be admitted to prove the admission of the improper testimony, if any there was.
    
      
      See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   The following is the opinion and judgment of this court.

“That the testimony of the defendant James M’Alister and Sarah his wife, was not proper in this suit, and ought not to have been admitted without the consent of the plaintiff; and that if the umpire on the proceedings mentioned, did receive and admit their depositions as evidence, in the matters in difference between the parties in this suit, submitted to him, his umpir-age and award should have been set aside, and a trial by jury awarded by the County Court. The judgment of the District Court is therefore erroneous. The judgment of the County Court is also erroneous, in not allowing the plaintiff to prove, that the depositions of the said James and Sarah M’Alister were admitted as evidence by the said umpire, as (it is stated in the bill of exceptions filed in this cause,) the plaintiff offered to do.”

Both judgments reversed with costs. The cause sent back to the County Court, to receive such proof, and for further proceedings. _  