
    Thompson against White.
    
      Monday, July 13.
    
    A RULE was obtained ©n a former day, by the fendant, to shew cause why the appeal from an award of arbitrators in his favour, should not be dismissed, and at the same time, the plaintiff obtained a rule, to shew cause why , , , , ^ -J the award should not be set aside.
    An affidavit iant, under “fth^act of 20th March, 181°. “that it is not for the purpose of delay such appeal is enter-ca¿se he he-^been*84*00 done,” is not sufficient. The affidavit must oontain the word “frmly,” applied to the appellant’s belief, or something equal to it in substance.
    P. A. Browne and Sergeant, for the defendant,
    insisted, that the plaintiff had not entered his appeal, conformably to the act of assembly, the 11th section of which, required °f the appellant, an oath or affirmation, that the appeal was not 11 entered for the purpose of delay, “ but because such party firmly believed injustice had been done.” The nature and degree of belief, existing in the mind of the appellant, are thus pointed out, and the plaintiff having only sworn, that he beReves injustice has been done, has come within neither the language nor the meaning of the act. In the arbitration law of 20th March, 1810, an oath is for the first time introduced, and it is evident, the legislature meant to exclude light inconsiderate swearing, in the common hacknied forms, which is too frequent and little regarded. Mere belief, does not imply absolute conviction, for the degrees of belief, says Dr. Reid, vol. i. p. 270, vary from the slightest suspicion, to the fullest assurance. Dr. Johnson makes faith synonimous with firm belief, and thus recognises its different degrees. It is upon this idea that the present argument is founded, for though the legislature may be considered as having prescribed a form of oath, yet it is not now contended, that words of equal or greater strength would not be sufficient. It was intended that men should reflect, and not take an oath except upon mature deliberation and firm conviction. This construction of the law has received the sanction of the-Court of Common Pleas of Philadelphia county, in the case of Bradley v. Eccles.
      
    
    
      When the jurisdiction of the’arbitrators has completely attached, the cause is out of Court, and the Court cannot enquire into the proceedings before the arbitrators. The only remedy is by appeal.
    The Court may enquire of those things which the law requires to be done, before the jurisdiction vests.
    If it should appear on the face of the award, that the arbitrators have exceeded their jurisdiction, or that the award is contrary to law, it is subject'to reversal on a writ of error, if the suit be depending in an inferior Court; and if depending in this Court, it may be set aside.
    Query, Whether an inferior Court can set aside an award in such cases ?
    
      
      Tilghman and Binney, for the plaintiff,
    after having exhibited nine affidavits, containing the words, “ he believes,” and four containing the words, he verily believes,” argued that this was an attempt to deprive a party of trial by jury, upon a nice metaphysical distinction. If there has been an error, it is one of the prothonotary, who drew up the affidavit, in conformity with what he considered the practice. It proceeded from no want of confidence in the appellant, as to the firmness of his belief. If the present motion is sustained, a great number of appeals must fall to the ground. The legislature did not intend to prescribe a form of oath, but merely to declare what substantially should be done. In common understanding, there is no distinction between the different gradations of belief.' Belief is generally understood to mean an honest conviction of the mind. The distinction, is entirely metaphysical, and even Dr. Johnson, who has been referred to by the opposite side, defines, “ to believe,” to have a firm persuasion of any thing.” There has been in this case, a substantial compliance with the law, and as the Court is bound to construe it liberally in favour of appeals, that is sufficient. Jones v. Badger.
      
    
    The opinion of the Court was delivered by
    Tilghman C. J. The act of assembly gives an appeal under certain rules, regulations, and restrictions, viz. The appellant shall swear or affirm, “ that it is not for the purpose of delay such appeal is entered, but because he firmly believes injustice has been done.” The appellant in the present case, has simply expressed his belief, omitting the word firmly. The question is, whether the appeal be entered agreeably to the law. This Court have construed the act of assembly liberally, in favour of appeals, because by so doing they supported the trial by jury; but they never have assumed and never will assume the right of frustrating, what appears to them to be the meaning of the law. The direction here is, that the appellant shall swear, he firmly believes, See. Is there no meaning in the word firmly ? It is a strong expression, and seems to have been intended to put the appellant on his guard. He is to consider his case well, and not to appeal, unless under a strong conviction that injustice had been done. If we say that the word firmly may be entirely omitted, without putting any thing tantamount in its place, we must say, at the same time, that it is impossible to have any other than a firm belief; or, in other words, that all belief is equal. Without recurring to the books of metaphysicians, let any man of plain common sense, examine the operations of his own mind, he will assuredly find, that on different subjects his belief is different. I have a firm belief, that the moon revolves round the earth. I may believe too, that there are mountains and vallies in the moon; but this belief is not so strong, because the evidence is weaker. I firmly believe that Bonaparte is in the island of St. Helena; but as to the state of his health, I may have my belief; but it cannot be called firm, because the evidence is not clear. The legislature certainly affixed some meaning to the word, and, therefore, we cannot dispense with it, or something equal to it in substance. When we come to consider what shall be equal to it in substance, we may adhere to our principle of liberal construction. Several affidavits have been cited with the word verily. Is that sufficient ? I think it is. Verily is as strong a word as jirmly. We are not called upon to measure the exact degree in which the mind assents. If it be a firm or strong assent, it is within the meaning of the law. But as this affidavit puts the matter simply on the appellant’s belief, it is the opinion of the Coui't, that the law has not been complied with, and, therefore, the appeal must be dismissed.
    ■ Keemle, for the plaintiff,
    then stated the exception, on which the motion to' set aside the award was grounded, which, at the request of the Court, he reduced to writing. It was, that the arbitrators had examined a material witness on the part of the defendant, in the absence of the plaintiff, and without notice to him, permitting the defendant to ask him several questions.
    P. A. Browne and Sergeant,
    objected to the Court’s hearing any exception of the nature of that now offered. They admitted, that if there were error on the face of the proceedings, it might be taken advantage of; but for matters dehors the record, the only remedy was an appeal. Whether under the arbitration law, there is no other, remedy than an appeal, is certainly a question of great magnitude, but it is a question without difficulty. That inconveniences will result from such a doctrine, cannot be denied, but where is the rule, decision, or law, that is perfectly free from inconvenience and injustice ? The legislature evidently intended to establish a tribunal, independent of the Court as to the decision, both of the law and the fact. The act of 1810, differs very materially from that of 1705, which rendered it necessary that the award should be approved by the Court. And even under that act, no exceptions on matters of fact, could be sustained, unless they were filed within four days, and were verified by oath. The act of 1810, far from calling for the approbation of the Court, declares, that an award of arbitrators, as soon as it is entered on the. docket of the prothonotary, shall have the effect of a judgment, until reversed on an appeal. When the award is returned, it must appear to be within the rule of reference; viz. on the matters submitted to the arbitrators ; but with respect to what was done before the arbitrators, the Court has no power to interfere. On the principle necessary to support the present exception, the Court may be called upon to review the proceedings of arbitrators, upon all exceptions to evidence, and frequently to overhaul the whole case, the effect of which, Would be entirely to- destroy the independent character of the tribunal. If the legislature- intended that the proceedings of arbitrators should be subject to revision, in any other manner than by appeal, they would have used language expressive of that intention, as was done in the act of 1705, when they required the approbration of the Court, to give validity to an award.
    
      Tilghman and Binney, contra.
    Whether the arbitration law offers to a dissatisfied party,' no other remedy than an - appeal, for the misconduct of arbitrators, or for any reason, is a question of the highest importance. If it does not, the case is unique, for in all other cases of awards, the conduct of the arbitrators may be enquired into. In cases of arbitration bond, the parties are bound by the judgment of the arbitrators fairly exercised; but if there has been any corruption or legal. misconduct, it may be examined. There is nothing in this law, to make awards under it, different from awards out of Court. The act points out the remedy by appeal, but does not exclude, either by words or by implication, a remedy in the usual manner. This Court has a superintending power over all inferior, tribunals, and if 'they discover improper conduct in the arbitrators, or in the prothonotary, in appointing improper persons, it is certainly competent to them to interfere. If the award cannot be examined in this way, it can never be questioned; because, the time for an appeal having elapsed, the judgment becomes absolute.
    
      
      
         1 lirame’s Rep. 258,
    
    
      
       5 Binn. 461.
    
    
      
      
         Puní. Pig. 14.
    
   On the following day, the opinion of the Court was delivered by

Tilghman C. J.

In this case, an arbitration was entered at the request of the plaintiff,' under the act of 20th March, 1810, entitled, “ An Act regulating Arbitrations.” The arbitrators made an award in favour of the defendant, which was filed in the office of the prothonotary. The plaintiff entered an appeal; but not having made the oath required by law, the appeal has been dismissed. The plaintiff now excepts to the award, and moves the Court to set it aside, because, as hé alleges, the'arbitrators examined a material witness on the part of the defendant, he (the plaintiff) being absent, and having no notice of an intention to examine such witness. A question has been made, whether the Court ought to receive any evidence of the proceedings before the arbitrators, except what appears in the record ; and whether for the cause assigned by the plaintiff, we have any right to set aside the award ? In arbitrations under the act of 1705, the Court were in the constant practice of hearing parol evidence, and of setting aside awards where, the arbitrators had conducted themselves improperly, or where they had made plain mistakes in law or fact. Concerning the exercise of this' power, there was no. room for doubt, because the act required that the award should be approved by the Court. But the act of March, 1810, has introduced a new system, giving to the arbitrators all the necessary powers for hearing and deciding, without the interference or controul of the Court. They are constituted the sole judges of the competency and effect of evidence, and of every question of law or fact arising in the cause ; and so far from their award being subject to the approbation of the court, it is to have the effect of a judgment from the time it is entered on the docket of the prothonotary, and to be a lien on the real estate of the party against whom it is made, until reversed on an appeal. The appeal seems to have been the only remedy immediately contemplated by the legislature. Nevertheless, as the award was to have the effect of a judgment, it has been decided that a writ of error would lie on it, in consequence of which it might be reversed for errors appearing on the face of the proceedings. Some things there are, however, which the law requires to be done, before the jurisdiction of the arbitrators attaches, and these things the Court may enquire into. The law prescribes the mode for entering the rule for arbitration and appointing the arbitrators, and certain other things to be done by the arbitrators before they proceed in the cause; these things may be enquired of by the Court in which the action was depending at the time the rule was entered, because, where the jurisdiction is never vested in the arbitrators, the proceedings are void, and the jurisdiction of the Court is not taken away. But when once the jurisdiction of the arbitrators has completely attached, the cause is out of Court, nor can the Court afterwards make enquiry into the proceedings before the arbitrators. When the award is returned and entered, it is considered as a record of the Court, and execution may be sued out upon it. Should it appear on the face of the award, that the arbitrators had exceeded their jurisdiction, c$?*that the award was contrary to law, it would be subjeqt to reversal on a writ of error if the suit was depending in an inferior Court, and if depending in this Court, we might set it aside because no writ of error lies from this Court.- Whether an inferior Court might set an award aside in such- case, is not now the question. But in whatever Court the suit was depending, there is no remedy but by appeal, for matters not appearing on the record which took place in the proceedings before the arbitrators during the time in which the cause was out of Court, viz. from the time when the jurisdiction became vested in' the arbitrators, to the ‘ time when the award was entered in the prothonotary’s docket. It is the opinion of the Court, therefore, that it is improper to hear the evidence offered by the plaintiff, because, if the fact were proved, it would not be relevant. The rule to shew cause why the award should not be set aside, must be discharged.

Rule discharged.  