
    Pleasants, Shore & Co. and Anderson v. Ross.
    April Term, 1793.
    (1 Am. Dec. 449.)
    Issue Directed — Waiver of Jury — Submission to Arbitrators. — The Court of Chancery having directed an issue, the parties agreed to wave the trial by jury, and to submit the cuestión to certain persons mutually chosen by them, whose report should be certified to the Chancellor, in lien of a verdict.
    Report of Arbitrators — How Considered by Court. — The Court must consider the report as an award, to be governed by the same rules and principles which prevail in cases^of awards.
    Awards — When Set Aside for Mistake — Aff idavits — For What Purpose Introduced. — To authorise the setting aside of an award., for a mistake in the arbitrators, either as to law or fact, the mistake must appear on the face of it. Or, if the arbitrators will certify the principles on which they decided, the Court will set aside the award if they appear to have acted under a mistake. Affidavits may be introduced, but they must go to prove partiality or misbehaviour in the arbitrators.
    Issue Out of Chancery — Supervision of Court — Verdict against Evidence. — When an issue is tried, it is under the superintendence of the Court, who will prevent tlie introduction of improper testimony : and if the verdict Toe against evidence, tlie Court will so certify, and the Chancellor will not he satisfied with it. If no certificate he given, still the Chancellor may direct a new trial, on affidavits tending to prove misbehaviour in the jury, hut not that their verdict is against evidence.
    This court, upon an appeal formerly taken in this cause from a decree of the High Court of Chancery, having ordered an issue to be directed by the Court of Chancery, to try, “what was the current and average price, in sterling money, on the 18th day of April 1781, of tobacco passed at the ^inspections of Page’s Richmond, Manchester and Peters-burg the issue was made up accordingly, and directed to be tried in the District Court of Richmond.
    
    The parties waving the trial by jury, consented, to submit the decision of the decision of the issue to five persons appointed by them for that purpose, or to any three of them, and that their report should be certified, and returned into the High Court of Chancery, in lieu of, and to have the same effect as the verdict of a jury, directed to be taken.
    The referees made their report, and determined, that the current and average price in sterling money, on the 18th of April 1781, of tobacco passed at the inspections of Page’s Richmond, Manchester and Petersburg, was 17s. 6 one third per cwt.
    This report being certified into the Court of Chancery, the appellants filed a bill, praying to set it aside, and stating, as the ground of their objection to it, that the referees had gone upon a palpable mistake in the rule adopted by them, in ascertaining the current and average price in sterling money, or the tobacco (mentioned in the issue,) on the 18th of April 1781. That instead of taking the current and average sterling price of the tobacco, as it was bought and sold, just previous and subsequent to the 18th of April 1781, (for on that very day tnere was no proof of any purchases having been made) the referees, had first fixed a paper money price to the tobacco, and then applied the scale of depreciation to that sum, in order to obtain the specie value, which they again converted into sterling money, according to the rates of exchange in a northern state, where it varied very considerably, from what it was in Virginia. That by this circuitous and uncertain mode of calculation, a result was produced, in no manner corresponding with the real sterling value of tobacco about that time.
    This bill was accompanied with affidavits, proving, that the sterling price of tobacco just before, and after the time mentioned in the issue varied from 6s. to 12s. sterling.
    No answer was put in to this bill, an.d the court being satisfied with the report, entered a decree pursuant to what the Court of Appeals had prescribed, making the current and average price of the tobacco, as reported by the referees, the rule, by which the money was turned into that commodity.
    *Erom this decree, Pleasants, Shore & Co. and Anderson appealed.
    
      
      Awards — Setting Aside. — On this Question the principal case is cited in the following: Brickhouse v. Hunter, 4 Hen. & M. 368 : Kincaid v. Cunningham, 2 Munf. 8 : foot-note to Adams v. Hubbard, 25 Gratt. 129 ; fooUnote to Portsmouth v. Norfolk County, 31 Gratt. 727; Tennant v. Divine, 24 W. Va. 392 : Scott v. Trents, 4 Hen. & M. 359 ; Dandridge v. Harris, 1 Wash. 326 ; Lewis v. Chicago R. Co., 49 Fed. Rep. 710 ; Elliott v. Railroad Co., 74 Fed. Rep. 712. The princi-' pal case is reported in Wythe 10, and 1 Am. Dec. 449. See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684. The principal case is cited in Lightfoot v. Price, 4 Hen. & M. 431, on the question of the proper mode of calculating interest on partial payments.
    
    
      
      lssue Out of Chancery — Rule Where Trial Court Certifies Verdict to Be against Evidence. — In Henry v. Davis, 7 W. Va. 716, it is said when an issue is tried it is under the superintendence of the court, which will prevent the introduction of improper testimony ; and if the verdict be against evidence, the court will so certify, and the chancellor will not be satislied with it. citing PUasimts a. Homs, 1 Wash. 156; Southall v. McKeand, 1 Wash. 338. See also, citing the principal case on this question: foot-note to Ross v. Dynes, 3 Call 568 ; Grigsby v. Weaver, 5 Leigh 205, 210; Lavellv. Gold, 25 Gratt. 476 ; Miller v. Wills, 95 Va. 851, 28 S. TO. Rep. 337. See monographic note on '‘Issue Out of Chancery'' appended to Lavell v. Gold, 25 Gratt. 176.
    
    
      
      See the Chancellor’s Eep. p. 147, where this case, from its commencement in the Court of Chancery, to its termination there, is very fully stated. — Note in Original Edition.
    
   The PRESIDENT

delivered the opinion of the court.

The issue directed in this cause, was intended to satisfy the conscience of the Chancellor. It appears that his conscience was satisfied, and there is no doubt, but that his decree was formed in strict conformity with the conviction thereby produced. But as this court has the power of examining and correcting his decrees, we must be guided by the same conscienscious principles; and if we are not satisfied with the award, we must pronounce, that he ought not to have been satisfied. Eor myself, I am so far from being satisfied that the price is rightly fixed, that I feel the fullest conviction on my mind of the contrary.

But the difficulty is, how we are to discover the principles upon which the decision of fhe referees was really made; and how the subject is to come before the court? If we consider the persons chosen by the parties in the light of arbitrators, and that the objection is made on the ground of mistake, as to. facts, or principles, the answer is, that this mistake must appear upon the face of the award; and in this case, there is no such ground of objection. Affidavits may be introduced, but they must tend to prove partiality, or misbehavior in the arbitrators, and not mistake in law, or fact. When an issue is to be tried, it is under the superintendance of the court, who will prevent the introduction of improper testimony; and if the verdict be against evidence, they will certify this together with the verdict, and the Chancellor will not be satisfied. If no such certificate be made, still the Chancellor will in some instances direct a new trial, on affidavits proving misbehavior in the jury, afterwards discovered: but this he will not do, upon affidavits tending to prove that the verdict is contrary to evidence. The parties, have in this instance substituted referees for the court and jury; and the question is, whether the party objecting to the report, is bound by it, as if it had been a verdict certified without exception, and must abide the consequence of his own act, in taking the case out of its legal course? or whether, he may bring the mistaken principles on which the referees proceeded, before the court, as a ground for a new trial of the issue?

If the referees had certified the principles upon which they proceeded, there would seem to be no difficulty: it would come within the reason of those cases, where the' mistake is apparent upon the face of • the award. If the paper annexed to *the bill, were really evidence of those principles, it would produce the question, whether the mistake was thereby rendered apparent; and in that case, I should feel no difficulty. But, there is no proof of the ground upon which they proceeded. They once agreed to give a certificate, but afterwards refused. Whether they were right or wrong in doing so, is immaterial. The plaintiff having alledged that this paper contains the ground of the report, the only difficulty is, whether the Chancellor ought not to have suspended the confirmation of the report, until that fact was ascertained. On a thorough consideration of the subject, and of its consequences as a precedent, we think he was right, and affirm the decree.  