
    Lemuel B. Askew v. Thomas Kennedy.
    Columbia,
    May, 1828.
    An award will not be set aside, except for corruption or partiality in the arbitrators, or for some manifest error committed by them. The Court will never undertake to re-try the case upon its merits.
    That arbitrators may examine the parties as witnesses, is a rule which has long prevailed in this State; and though not free from objection, ought not now to be disturbed: But the parties may, in every case, guard against it, by qualifying the, submission-rule.
    Tried before Mr. Justice Gantt, at Union, Spring Term, 1828.
    The plaintiff had sold a negro slave to the defendant, and abated $50 in the price, on the supposition that the slave was unsound. And this was an action on a promise by the defendant to pay the plaintiff the sum thus abated, in the event of the slave’s proving to be sound. The case was, by rule of Court, submitted to arbitrationand the arbitrators awarded the defendant to pay to the plaintiff the sum of $50, and the costs of suit already incurred; but did not set forth in their award, the grounds on which they had decided.
    Upon the return of the award, the defendant moved to set it aside on the following grounds.
    1st. That the arbitrators had erred in permitting the plaintiff to testify before them in favour of his own claim.
    
      2d. That the arbitrators had mistaken the law applicable to the case before them, their award being founded upon an as-sumpsit by the defendant, made either upon an insufficient or an illegal consideration, and in either case void in law.
    
      3d. That they had no authority to award costs.
    It appeared that the arbitrators had first offered to swear the defendant, and upon his refusal, had received the oath of the plaintiff. Upon the second ground, his Honor, the presiding Judge, reported, that it appeared in evidence before him, that the defendant, subsequently to his purchase from the plaintiff, sold or bartered the slave in question, to one Ison; and a dispute arising between them as to the soundness of the slave, they referred the matter to a private arbitration. That the promise, on which the present action was brought, was made at this period, and was only a contingent promise to pay the plaintiff $50, if the arbitrators of the dispute between the defendant and Ison should pronounce the slave to be sound : That a certificate from two of these arbitrators was produced, in which they certified that they had rescinded the contract with Ison, on the ground that the slave was unsound. And his Honor held, that the contingency on which the defendant’s obligation was to arise, not having occurred, his promise was not binding ; and the arbitrators had manifestly erred in making an award for the plaintiff. On this ground, therefore, the award was set aside.
    The plaintiff appealed, and moved to rescind the order setting aside the award, on the following grounds.
    1st. That his Honor, the presiding Judge, erred in receiving-evidence, and deciding upon the merits of the plaintiff’s cause of action, after it had been submitted to arbitration.
    2d. That there was neither corruption nor partiality proved or pretended in the arbitrators, nor any evidence that they had mistaken the law; and, therefore, their award ought not to have been disturbed.
    Herndon, for the motion.
    It is of the very essence of an arbitration, that the award is to be made upon equitable principles, without regai-d to the rules or technicalities of the law. If, indeed, the arbitrators profess to follow the law and mistake it, the award may be set aside : but otherwise, it can only be impeached for corruption or partiality. Kyd on Awards, 351. Ahvyn v. Perkyns and Kelly. 3 De S. 297. Sumpter v. Mur-rell, 2 Bay, 450. 3 Amer. -Dig. Title Arbitrament. To hear testimony, and examine into the merits of the ease, in order to ascertain whether the award is consistent with law, is a perversion of the whole object of an arbitration; namely, to settle the dispute between the parties upon principles of natural equity, unembarrassed by the provisions of positive law. It is obvious, that if the Court is to re-try the case, an arbitration in the first instance is altogether nugatory. The objection that the plaintiff was examined as a witness, cannot avail. Arbitrators are not tied down by the technical rules of proceeding of the Courts : Nor are they to exclude any source of information upon the matters in dispute. Mulder v. Crovat. 2 Bay, 370.
    A. W.- Thompson, contra.
    
    A consideration wholly past, cannot support an assumpsit. Garrett v. Stuart, 1 McC. 514. The promise in this case was made subsequent to the purchase of the slave, and was, therefore, without any present consideration, and void. Besides, it was made pending the arbitration with Ison, and was contingent upon the result of that arbitration; and for that reason, against the policy of the law, and void. 1 Com. Con. 34. The award is then founded on a contract void in law, and ought not to stand. Great latitude .is allowed to arbitrators, but there are limits to their authority; and it is laid down in all the cases, that for manifest error an award may be set aside. Jac. Law Die. Award VII. The error here is manifest. There is no avoiding the conclusion, that the award was made under the mistaken belief, that the defendant was bound by his promise. It is said that evidence cannot be introduced to prove the existence of the error. This is a mistake. The Court may examine into the whole of the proceedings, to discover if there be error; otherwise, where the award does not set forth the evidence, there would be no relief against the greatest errors. Shinnie and Loomas v. Coil, i McC. Ch. 478.
   Nott, J.

delivered the opinion of the Court,

Where persons withdraw their causes from the ordinary tribunals of the country, and submit them to judges of their own choosing, it is always understood that they mean to dispense with those technical rules of proceeding, by which Courts of Justice are usually governed. It has, therefore, become a well settled rule, not to set aside an award, unless there shall appear some evidence of corruption or partiality in the arbitrators, or unless they shall hare committed some manifest error. The Court will never undertake to re-try the case upon its merits. I think, therefore, that the presiding Judge erred m looking into the evidence in this case.

Lefper?lDai-las, 161. Vide Hol-

The only doubt which I have felt on the occasion, has been in relation to the admissibility of the plaintiff as a witness in his own cause. But that seems to be a practice which has long prevailed in this State; and in the case of Mulder v. Crovat, 2 Bay, 370, in the year 1802, was sanctioned by the whole Court. The oath in this case, was first tendered to the defendant, who declined the offer. That was certainly calculated to cast a shade of suspicion over his case, and would seem to remove any ground that he might have had for such an objection. I do not think, however, it is a practice much to be encouraged. It is calculated to open the door to perjury, which ought to be avoided. But the parties may always guard against it by thus qualifying the rule of submission: And as the practice has so long prevailed, and under the sanction of such high authority, I am not now disposed to innovate upon it. I am of opinion, therefore, that the decision ought to be reversed, and the award confirmed.

Motion granted.  