
    Ligon v. Ford.*
    Argued January 17th, 1816.
    1. Submission to Arbitration — Effect.—A submission to arbitration, held a waiver of objections to previous proceedings in the cause.
    2. Crim. Con. — Arbitration—Misconduct of Arbitrators. —An action of crim. con. being referred to arbitration by rule of court, if the arbitrators refuse to hear testimony offered by the defendant, impeaching the credit of the plaintiff’s witnesses, or touching the deportment of the plaintiff’s wife before her alleged seduction; this is such misconduct as vitiates their award; and the court ought not to decline hearing proof of such misconduct.
    Ford brought an action, in the District Court of Petersburg, against Ligón, for criminal conversation with Ford’s wife. Plea, “not guilty.” On the division of the court, the cause was sent to the Superior Court oí Amelia ; where it was tried, and a verdict rendered for the plaintiff for one hundred dollars damages ; which verdict the court set aside, and granted a new trial on the ground that the case was an aggravated one, without a single circumstance of palliation, and the damages extremely inadequate. The yenue was afterwards changed, and the cause transferred to the Superior Court of Nottoway ; and there, by .rule of court, referred to three arbitrators, or any two of them, whose award was to be the judgment of the court. Two of the arbitrators met, and, in the presence of the parties, made an award in the plaintiff’s favour for one thousand dollars. It does not appear, that the other *arbitrator had notice of the time and place of arbitration, or that any objection was made on that ground, at the time of arbitration, or in the court below. The defendant filed several exceptions to the award, of which the two material were the 3d, That at the time of the making of the award, the defendant offered evidence to the arbitrators, to prove, that the testimony of the two principal witnesses ought not to be credited, from their general character, and the variance of their testimony from that they had before given in the same cause ; and the arbitrators refused to hear such discrediting testimony ; and the 4th, That they prohibited the defendant from examining any evidence, as to the character and general deportment of the plaintiff’s wife, before her alleged seduction by the defendant. And the defendant offered to prove to the court, that the facts stated in the exceptions, were true. But the court refused to hear such proof; overruled the exceptions, and gave judgment for the plaintiff, according to the award : from which the defendant appealed to this court.
    Leigh for the appellant. The court of Amelia ought not to have granted a new trial, on the mere ground of inadequate damages, however extreme the case. It has long been settled, that, in cases of personal tort, a new trial cannot be granted on the ground of smallness of damages ; and there is not a single precedent in the books to the contrary. In the common cases of personal tort, (assault and battery, and the like,) it has been often asked, if any good reason can be assigned, why the courts may, as they do daily, grant new trials for excess of damages, and not, e converso, for the smallness of damages ? The one case requires the interposition of the court less strongly and frequently than the other. Where the damages are too small, the parties are left nearly in their former condition ; where excessive, there is a sudden, and, in one sense, a violent, change of property. Then, it much more rarely happens, that he, that sustains a real outrage, fails to excite the sympathy of juries, than that he that has perpetrated one, fails to rouse their indignation ; courts of justice are hourly employed in restraining the vehemence of men’s feelings ; in correcting their moderation, never. And, of all kinds of actions, those of personal tort, are most often frivolous, vexatious, and spiteful. As to this '^action for criminal conversation, it has been solemnly ruled, that a new trial cannot be granted, even for enormously excessive damages ; as where the jury found 50001. when the court would have been satisfied with nominal damages. Welford v. Bukeley, and Du-berly v. Gunning,  In the last cited case, Lord Kenyon plainly regards a new trial, for inadequate damages, as utterly out of the question. And the utmost point to which any court has ever gone, in crim. con. cases, was to say, that it would grant a new trial for excessive damages, if it should appear, that the jury acted under the influence of undue motives, or some gross error or misconception of the subject,  The import of that decision (as I understand it) is, that a new trial may be granted, not for excessive damages simply, but for excessive damages proceeding from misconduct of the jury. Possibly, it may be held, that the subsequent arbitration superseded this question ; as all matters in difference in the cause were referred, and this was one matter of difference. But, it is plain it never entered into the arbitrators’ heads, to determine this question on the law of new trials. And if it shall be intended, that they did decide the question, and they decided it erroneously ; then the award is chargeable with error in law, and is therefore bad ; which brings us back to the point, was the new trial properly awarded or not ?
    However, if this court have decided, that an arbitration operates like a release of all previous errors in the proceedings, I must yield this first point, and rely on the objections that lie against the award itself. And first, the award is bad for want of mutuality, no release being awarded for the defendant.  But I mention this point with diffidence ; as it seems to have been disregarded both by bar and bench, in some cases in this court, where it might have been as well raised, as here ; and it may, indeed, be unwise to encourage objections to awards, which look rather technical. The award is substantially bad, because it does not appear, that the third arbitrator, who did not join therein, had notice of the meeting of the other arbitrators, though the award by two had been sufficient, if the third had had notice. Dalling v. Matchett is directly in point. But my chief objection is, that the arbitrators were guilty of what amounts to misbehaviour. If so, the court ought to have heard the proof offered, of the truth of the facts imputed ; *and should, perhaps, infer misconduct from very gross mistakes,  If the arbitrators departed from the plainest principles of law and natural justice, this was misbehayiour, perhaps partiality. And I affirm they did so. Happily, actions for criminal conversation are extremely rare in this country ; and the arbitrators, possibly, might not have known, that the general deportment of the plaintiff’s wife, before her alleged seduction by the defendant, was a proper subject of inquiry. But they could not have been ignorant, that it was their duty to hear proof touching the credit of the plaintiff’s witness. The proof offered was exactly of the proper kind to impeach their credit. The fact stated in the exceptions were ground for an application to the summary jurisdiction of the court, to set aside the award, 
    
    Williams, contra.
    The present doctrine of new trials is comparatively modern. The courts have been gradually improving that branch of practice; and, if reason require further improvement, the courts may well make such further improvement: this is the very genius of the common law. In cases of personal tort, it is now established, that a new trial may be granted for excessive damages, contrary to some old precedents; and by parity of reasoning, a new trial may be granted for inadequacy of damages, notwithstanding other precedents. I apprehend the rule to be now settled, that new trials, in all cases, whether sounding in contract or in tort, whether for excess or smallness of damages, depend, as they ought, on the sound discretion of the court. [Roane, J. Have not verdicts, in actions for personal tort, been likened to verdicts in criminal cases ; in which, if a verdict be in favour of the defendant, however improperly, the court cannot interfere? ] Williams. That was the old ground, founded on the amercement, and capiatur profine, now obsolete in effect in England, and abrogated by statute here. I insist, that, if the certificate of the judge be correct, (and the defendant did not even except to it,) the jury must, in this case, have been actuated by undue motives, or some gross error or misconception of the subject ; which brings this case within the doctrine in 8 East, 256, cited by Mr. Leigh. And surely the reference to arbitration waived the point. In Leftwitch v. Stovall the court held, that a subsequent submission *to arbitration, by rule of court, obviated an objection for want of a declaration in the cause. In Brickhouse v. Hunter, &c.  and arbitration was allowed to obivate objections to the jurisdiction of the court where the controversy was pending, and to avoid the bar of a former judgment at law. As to the objection for want of mutuality in the award, in not awarding a release to the defendant; that objection holds only in regard to awards made in pursuance of arbitration bonds, and not at all to arbitrations under rules of court, for reference of a particular suit ; the judgment being per se a bar to a new action for the same cause. Another objection to the award is, that one of the three arbitrators was not present at the arbitration, nor notified of the time and place thereof. The submission was to the three, or any two. Both parties were present, and neither objected on the ground that one arbitrator was absent, to the others proceeding in the arbitration ; and the objection, if there be any thing in it, should have been made in the court below, where the plaintiff might have controverted the facts on which it was founded; it comes too late in this court. I consider the last objection as an impeachment of the award on the ground of mistake in fact. Now, as to matter of that kind, the award concludes the parties forever ; nor can it in that respect be reviewed by the court, unless the arbitrators were guilty of corruption or partiality,  The arbitrators were competent to determine on their own knowledge, without any evidence. And the opinion of the court, when it granted the new trial, is confirmation of the justice of their award.
    Leigh, in reply.
    It is said, that the courts have been gradually enlarging their power of granting new trials in order to fulfil the ends of substantial justice. This is true. But then, in every step they have advanced, they have taken care not to run counter to settled rules, and direct adjudications, limiting their discretion : and, in regard to the particular point in controversy, the modern improvements, and the ancient rigor, as I have shewn, go hand in hand, and alike deny to the courts, in cases of personal tort, and especially in actions for criminal conversation, the power of granting new trials for inadequacy of damages. Then, as to the waiver of previous objections, inferred from the subsequent submission to arbitration, *the authorities cited seem by no means conclusive. In Leftwitch v. Stovall, the main ground, which the court went on,, was, that the parties, by submitting their' case to arbitration, had waived all objections to the want of legal forms ; so that the application of that authority to the present case depends on this, whether the granting of the new trial was matter of legal form only ? Brickhouse v. Hunter was a case in chancery, wherein relief was sought against an oppressive judgment at law; and this court held, that the judgment at law, as well as the suit in chancery, was within the general terms of the submission ; and that, therefore, the arbitrators might well make an award according to the very right of the case, notwithstanding the judgment at law. I did not mean to press the objection to the award for want of mutuality ; and I shall not examine Mr. Williams’s distinction on that head. As to the third point; the. submission in Dalling v. Matchett was exactly like that in the present case; to-three or any two. Arbitrators constitute a tribunal, and the submission to arbitration, is the commission from which they derive their authority; therefore, it ought to appear, upon the face of the record, that this tribunal of arbitrators was legally constituted according to the submission ; either, by shewing that all were present; or, if one was absent, that he had notice to attend, and declined. ■ On the law touching the last point, I think we are agreed, that the award can only be impeached on the ground of mis-behaviour in the arbitrators : but I say, they were guilty of misconduct, and that Mr. Williams hardly denies. No confirmation of the justice of the award can be drawn from the opinion of the court of Amelia, on granting the new trial; since that opinion might have been founded on the testimony of the very witnesses, whom the defendant might have proven to be unworthy of credit, before the arbitrators, had they not prevented him.
    
      
       See generally, monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
    
      
       Barker v. Dixie, Str. 1051.
    
    
      
       1 Burr. 609, and 4 T. R. 660.
    
    
      
      c) Chambers v. Coalfield, 6 East. 266.
    
    
      
       Doyley v. Burton, 1 Ld. Raym. 533.
    
    
      
       Willis, 215.
    
    
      
       per cur. 1 Wash. 158.
    
    
      
       per Roane j. 2 Hen. & Munf. 413.
    
    
      
       Braddick v. Thompson, 8 East. 344; Schwartz v. Thomas, 2 Wash. 167.
    
    
      
       1 wash. 303, 6.
    
    
      
       4 Hen. & Munf. 363.
    
    
      
       1 Ves. Jun. 369. 2 Ves. Jun. 15.
    
   January 20th. The president delivered the opinion of the court.

“The court is of opinion, that the parties having- by consent, submitted all matters, in difference between them in this suit, to the decision of the arbitrators in the proceedings mentioned, the principal of which matters was the amount of the ^damages, which the appellee ought to recover from the appellant; that submission precluded the appellant from contending, that the amount of those damages was conclusively settled by the verdict rendered in the cause, and is a waiver of the objection, that greater damages are given by the award; if that objection would otherwise have been available; according to the spirit of the decision of this court, in the case of Brickhouse v. Hunter Banks, & Co. 4 H. & M. 363.”
“The court is further of opinion, that, in trying the question submitted to them, comprising as well the fact complained of by the appellee, as the amount of damages thereby alleged to have been incurred by the appellant, the arbitrators ought to have received the evidence, stated in the third and fourth exceptions to have been offered, and rejected; and that the judgment of the Superior Court is also erroneous, in having refused the appellant permission to shew, if he could, that such testimony was offered to, and rejected by, the said arbitrators.”

The judgment of the Superior Court is, therefore, reversed with costs, and the cause remanded, for the purpose of letting in the testimony last mentioned, (or testimony corresponding with that comprised in either of the said exceptions) if offered ; which testimony, if given, is to vacate the said award ; and the Superior Court is thereupon to award a new trial, of issue, before a jury ; and, if no such testimony shall be given, that then, and in that case, the said award shall stand good, and judgment be rendered thereupon, in favour of the appellee.”  