
    *May v. Yancey.
    March, 1833.
    Arbitrators — flisconduct — Case at Bar. — Award of arbitrators sought to be set aside, on the ground that the conduct of the arbitrators had the effect of a surprize on one of the parties, and so was misconduct, though no partiality or corruption was imputed to them; and Hurto, upon all the circumstances of the case, that there was nothing in the proceedings of the arbitrators to invalidate the award.
    In two actions, one of debt and the other of assumpsit, brought by Yancejr against May, in the hustings court of Richmond, the parties (after a very long and tedious litigation) agreed to refer the controversy to arbitrators; and rules were entered by consent in both suits, at November term 1829, submitting the matters in difference between them in the two cases, to the final determination of Samuel Dunn and Preston Smith, whose award (or the award of their umpire in case of disagreement) thereupon, should be made the judgment of the court ; the arbitrators to proceed on the Saturday following, at the city hall, with power to adjourn &c. till the award should be completed, without further notice to either party.
    On the 16th January 1830, the arbitrators made an award, stating that they had proceeded, according to the order, after giving due notice to the parties, to receive the testimony offered by them, both being present; and “after receiving from each party a full statement and hearing thereupon,” they awarded to the plaintiff Yancey, in the action of debt, 245 dollars, with, interest &c. and the costs of the suit', and in the action of assumpsit 227 dollars (without interest) and the costs.
    This award having been returned to court, a motion was'made by the defendant May to set it aside, on the ground of misbe-haviour of the arbitrators; and the evidence he offered to sustain this motion, was the testimony of the two arbitrators themselves.
    1. Dunn stated, that the arbitrators met at the time and place appointed in the order of submission : that both parties were before them, and exhibited certain papers and 'x'made explanations concerning the cases : that the arbitrators thought they had all the evidence before them,'and that the parties were ready for their decision: that after a consultation between the arbitrators on the subject, May, who lived in a distant county, .said to them, that if they should not make up their award whilst he was in Richmond, he wished them net to come to any conclusion until he could appear before them again, for the purpose (as Dunn thought at the time, and yet thought) of making further statements and explanations: that the arbitrators did not inform May, that a further daj’ for him to appear before them would not be allowed, nor was any period designated at which the parties should appear before them again: that the award was not made up during May’s continuance at Richmond: that probably, it would not have been made up before the quarterly term of the court in February 1830, but that they were pressed by Yancey to proceed; and they concluded the business without having the parties again before them: that in the latter part of January Dunn received a letter from May, dated Staunton, 25th January 1830, in which May said—
    “As to the reference in the cases of Yancey against me, I must request, that you take the papers from Mr. Smith, as you are so much engaged in the day, and after you are quite satisfied, return them to him, if you and he think he had best keep them; then I must request, that you and Mr. Smith will not have a final meeting until I come down, as I am satisfied that I had better see that a full and fair explanation is given, and you know that as Yancey did not attend at the Washington tavern, I-would not stay in the room with you and Mr. Smith. X do expect Mr. Smith has looked over the papers, and heard all Yancey had to say; and from what you know of the matter, you will think I ought to be heard by myself or counsel; and you know I could not get any’ meeting for that purpose, except at the Washington, when I would not attend, after Yancey’s writing that he would not attend there; and so I left Richmond for home, with the expectation *that you would not make up an award until February court, or near that, when I intend to come down, and will be willing to have an end of the matter, as soon as I can be heard before the arbitrators, either by myself with Yancey, or both have counsel — I don’t care which. Should he be desirous of having the matter done with sooner, I have no objection, after your taking all the papers to yourself until your are satisfied, and then have a day fixed when you would meet and determine, when our counsel are to attend with you, though X expect you will not take it up until I come down. If you do, I must get the favor of you to tell Mr. Daniel, that I request him to attend for me. As to what Mr. Anderson says, you recollect he was not positive, whether I said that I would not charge any rent until he got possession, or something about the title. You can see, that in January Yancey wrote to me, that Binford said he should not get possession of the Goochland land; he then went up, and got it, and rented it out. After that, in April, he came down, and gave me the obligation for rent, commencing the 1st January 1819; and I went on to pay him off all that I ought. You see, when the conversation passed, he did not expect to get the possession of the Gooch-land land, and I 'must have had to look to some one for it. I went up to see Mr. Bin-ford as soon as I received Yancey’s note, and told him what I had understood from Yancey, and that I did not care which way, as he Binford was good to me for the rent; when he said he never said any such thing, nor made no such pretensions. I wish before you act to get Mr. Binford’s testimony about that, and about the insurance &c. &c. Please let me hear from you in a few days, and oblige your friend &c.”
    Dunn proceeded to testify, further, that on receipt of this letter, he communicated its contents to Mr. Daniel (May’s counsel) and informed him, that the award had already been made and returned: that he also conferred with the other arbitrator, Smith, who said he had already had trouble enough with the business, and should do nothing more in it: *that he informed May, that the award had been made and returned before his letter was-received: that afterwards, and before February term 1830, May exhibited evidence to-him, which if it had been shewn him before he made the award, would have intirely changed his opinion, unless it had been counteracted by other evidence: that he-asked May why this evidence had not been sooner exhibited ; and h’e said he had overlooked it, and had not found it till after his first appearance before the- arbitrators: that the opinion of the arbitrators was formed, principally, on the evidence of a single witness (Anderson) upon a particular point in controversy, which it was, necessary to settle before they entered into any investigation of the papers laid before them: that when the parties were before the arbitrators, they both expressed a wish, that the arbitrators should proceed to decide the case at once, upon the evidence then adduced; neither party intimating that he had any further evidence to offer;, and May expressing his willingness that the decision should be made, if it should be made when he was in Richmond and present, though he said, at the same time, he should have been glad to have Binford’s evidence: that the claim preferred by Yancey, which May alleged that Binford’s evidence was necessary to explain, was in fact allowed to Yancey by the arbitrators ; it was an item in his account of eleven dollars: that when the parties were before the arbitrators each accused the other of a desire to delay the case. Dunn further testified, that he had informed Majr, that the award would not be made and returned till near the February term; and it was only in consequence of the earnest request of Yancey, made to the arbitrators when May was not present, that it was concluded and returned sooner.
    2. The other arbitrator, Smith, testified, that the parties were both before the arbitrators at their first meeting, from which they adjourned to the Washington tavern r that the witnesses were examined in the presence of the parties, and the papers of both were exhibited; and May handed in a paper containing his views of the case: that he (Smith) believed *that all the evidence was before the arbitrators, otherwise he would not have proceeded to an award; he understood that both parties left the arbitrators, with the expectation that the award would be made upon the evidence and explanations then given ; and the arbitrators agreed to proceed to make up the award as soon as they could, without any further meeting of the parties, or explanation from them: that, according to his recollection, no formal proposition was made by May, that the award should not be made up during his absence from Richmond, and he expressed no wish to be heard again ; he thought he should remember such a circumstance, if it had occurred; he remembered, that May said he would be glad to have Binford’s testimony, but he did not ask a continuance for the purpose of procuring it, and he appeared to be willing to go on with the case, without Bin-ford’s testimony: that the evidence vías examined first by him, and then by Dunn, separately, till the mind of each was satisfied : that it was true the award was made up sooner than otherwise it would have been, in consequence of the importunities of Yancey; but he was not permitted to converse with them on the merits; he once commenced a conversation of the kind with Smith, but Smith stopped him, and he did not attempt it again.
    Upon this evidence, the hustings court overruled May’s motion to set aside the award, and entered judgments according to it. May appealed to the circuit court of Henrico, which affirmed the judgments. And then he applied to this court for writs of supersedeas; which were allowed.
    Daniel and Johnson, for the plaintiff in error,
    said, that the courts had been very liberal in their indulgence to awards, in respect of mistakes of fact, or even of law, imputed to the arbitrators; but in cases in which awards were impugned on ground of misbehaviour of the arbitrators, they had proceeded on different principles, and examined the conduct of arbitrators with great strictness. It was not necessary to convict them of corruption, or of any decided ^partiality. If the arbitrators do any thing improper, or omit to do what propriety requires; if they hear evidence they ought not to hear, or refuse to hear proper evidence when offered; if they fail to perform any of their functions; and, particularly, if they act in such a manner as to surprize either party, and thus in effect to do him injustice; in such cases of misbehaviour, they said, the award ought to be set aside. They cited Burton v. Knight, 2 Vern. 514; Harris v. Mitchell, Id. 485; Smith v. Coryton, cited in Earle v. Stocker, Id. 251; Walker v. Frobisher, 6 Ves. 70, and Graham’s adm’r v. Pence, 6 Rand. 529. And they endeavoured to shew, that the conduct of the arbitrators, in this case, had had the effect of a surprize upon May; for, they argued, it had given him reason to expect, that he should have an opportunity of being heard again, before the award was finally made up. And the only reason which induced the arbitrators to disappoint that expectation, was the importunity of Yancey, in the absence of May. It was wrong in them to listen to his importunities ; much more to yield to them, after they had given May reason to expect a further hearing. It appeared too, that Yancey had commenced a conversation with the arbitrator Smith alone, on the merits, which Smith put a stop to. because he thought it improper; but he must have said enough to shew, that what he was saying was not proper for the arbitrator to hear; and so far, at least, that arbitrator heard that which it was improper that he should have heard, and which might have had an undue influence on his mind.
    Gustavus Myers and Scott, for the defendant in error,
    entered inlo a minute exmination of the evidence of the arbitrators, concerning their own proceedings, and maintained that there was no colour for the charge of impropriety in their conduct. Their argument turned, almost in-tirely on questions of fact; for, they said, every case of this kind must stand on its own peculiar circumstances, so that the adjudication of one case afforded no rule for the decision of another; and hence it would be found, that the authorities, *cited for the appellant were wholly inapplicable. They cited Ringer v. Joyse, 1 Marsh. 404.
    
      
      
         Arbitration and Award. — See monographic note oil “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   CARR, J.

I have examined the evidence of the arbitrators with great care, and I cannot discover any thing in their conduct, which, according to the principles laid down in Graham v. Pence, and the cases there cited, can be held to amount to mis-behaviour. In the case of Walker v. Frobisher, cited at the bar, the arbitrator, after hearing a good deal of evidence, gave notice to the parties, that he should hear no more, in which they acquiesced; but, afterwards, he examined three witnesses on one side, of which he gave no notice to the other party; and for this lord Eldon (while he acquitted the arbitrator of all intentional wrong) decided, that, on general principles, the award must be set aside. In Graham v. Pence, the arbitrators had a meeting, and the defendant asked a continuance for an absent witness, which the arbitrators granted, and then determined to have nothing further to do with the case, and drew up a writing to that effect, which they communicated to the parties; but, afterwards, the plaintiff had a private, ex parte conversation with one of the arbitrators, and prevailed on him to resume the arbitration, and then gave notice to the defendant to attend at a certain time and place: the defendant went, and protested against the arbitrators acting further: he said they had divested themselves of all authority, and that they must return that fact to the court; and so left them. They notwithstanding this went on, and made up an award against the defendant without having his defence, or evidence before them; and for this the court set aside their award. But what have the arbitrators done, in the case before us, w'hich in any respect resembles this? what act that looks like partiality or a departure from duty? The parties were before them; had a full hearing; submitted their evidence, and were willing that the award should then be made. The arbitrators, however, were not ready: they required time to satisfy themselves. Dunn says, that May expressed a wish, that if the *arbitrators did not decide before he left Richmond (he living in Staunton) they should not make up their award until he could be again before them; but Dunn’s understanding of this was, not that he wished to introduce further evidence, but merely to make further remarks and explanations. Smith, the other arbitrator, says, that he heard no wish expressed by May, to be heard again, and that he does not think he could have forgotten such a circumstance; that both parties left the arbitrators with the expectation that the award would be formed upon the evidence and the explanations then given; and both arbitrators agree, that they gave no promise, nor appointed any future time, for another hearing. Now, suppose Dunn’s recollection perfectly accurate, to what does it amount? merely, that May wished (if they did not then decide) to make further arguments before them. Did this wish impose an obligation on the arbitrators, to hear him further? Surely not, unless they should find it necessary to their decision. But the arbitrators agree, that their first intention was to make up the award, so as to be ready for the February term of the hustings court; and that they, being much pressed by Yancey, departed from this intention, and made it on the 16th January. Was there any misbehaviour in this? I cannot think so. Yancey had no 'conversation with them on the subject matter of the arbitration : he merely expressed the wish, that whatever was to be done, might be done without delay: he claimed a sum of money, which to him, no doubt, seemed considerable: he had been at law for it many years: and under these circumstances (though it might not be very delicate) it was quite natural, that he should press to have the business finished. But, the arbitrators do riot intimate, ■ that this urgency caused them, to hurry over or slight the business at all. The first hearing, when the parties were before them, was in the first week of December; and they' did not make their award till the 16th January, nearly six weeks after. Surely, this was time enough ; and they tell us, they had the documents, first before the one, and then the other, till they were satisfied; and *then met, and made the award. As to the letter written by May to Dunn, that can have no. effect on the case. It was not written till the 25th January, sometime after the award was made and returned to the clerk’s office; and even in that letter, he speaks of no new evidence. 'It consists almost intirely of a long argument on the merits'of the case, very improperly addressed to one of the arbitrators. As little influence is due to the declaration of Dunn, that May had since shewn him evidence, which, if it had been before him, would have changed his opinion, unless counteracted by other evidence ; for, in the first place, the question before us, is as to the misbehaviour of the arbitrators, upon which this evidence, never before them, can have no bearing; and secondly, if we could be at all influenced by this evidence, it ought to have been filed in the cause. We can never agree, to take the opinion of the arbitrator as to it. Upon the whole, lean see, nothing like misbehaviour in the arbitrators, or injustice to the defendant, and am clear that the judgments should be affirmed.

CABELL and BROOKE, J., concurred.

TUCKER, P.,

said, he inclined to the opinion, that the judgments were erroneous; but as the other judges were clearly of opinion that they were right, and as the question, in his view of it, was a question of fact on the evidence, it was unnecessary to assign the reasons on which his impressions were founded.

Judgments affirmed.  