
    Lee v. Patillo.
    April, 1833.
    (Absent Brooke, j.)
    Awards — Misbehavior of Arbitrators — Effect.—Award of arbitrators set aside, on the «round of circumstances in their conduct, amountinsr to misbehav-iour, though not to corruption, and resulting in injustice to one of the parties.
    Patillo exhibited a bill in the county court of Charlotte in chancery, at November term 1820, alleging, that he had employed Lee, a carpenter, to build him a house of particular dimensions, and to do some other carpenter’s work for him: that after the work was completed, Patillo, thinking Lee’s bills unreasonably high, refused to pay them, but agreed with him to submit the prices of the work to Degraffenreidt and Tisdale, or in case of disagreement their umpire: that the arbitrators did not ascertain the quantity of timber used in the work, nor measure the work, but confined themselves altogether to the prices that ought to be charged for such work; that the work charged in Lee’s bills, at the prices fixed by the arbitrators amounted to 2633 dollars: that when the award was presented to Patillo, he told Lee he believed he had charged in his bills more work than he had done; upon which Lee promised to have an accurate calculation made oE the work and materials, and that, in this respect, the award should not be considered conclusive: that on this promise, Patillo gave his bond to Lee for 720 dollars, the balance due him, according to the estimate of the arbitrators, *after deducting previous payments made by Patillo: that by an estimate, which Patillo had since had made by a skilful carpenter, the quantity of timber in the work (for hewing and sawing of which the arbitrators allowed Lee, 8s. 6d. per hundred) was less by more than a third than the quantity charged in Lee’s bills, and he doubted not there were other errors in the bills: that Patillo had since applied to Lee, to unite with him in appointing two persons to measure the work, and ascertain the quantity of timber used therein; but Lee refused to do so; sometimes denying his promise at the time Patillo gave his bond, to correct errors of this kind, and alleging that this-matter had been settled by the arbitrators; and sometimes alleging, that it was impossible for any persons now to ascertain the quantity of timber used and of work done: that Patillo had made sundry payments in part discharge of his bond to Lee; and that Lee had brought suit on the bond, and recovered judgment for the balance due thereon. Therefore, the bill prayed an injunction to restrain Lee from further proceedings on his judgment at law ; and that the quantity of timber used and work done by Lee should be ascertained, and credit allowed Patillo for any overcharge in Lee’s bills; and general relief.
    Lee’s bills for the work done, with the prices extended by the arbitrators, and the award of the arbitrators at the foot thereof, were exhibited with the bill. The award was in these words: “We T. Degraften-reidt, W. Tisdale and W. Parrotte, as arbitrators upon the bills and vouchers produced, have settled it up agreeably to our judgments this 15th August 1818,” — signed by the arbitrators.
    Lee, in his answer, stated, that the work done by him for Patillo, and the particulars thereof, appeared in his bills for the same, now exhibited by Patillo: that it was not true that the submission to arbitration was confined <to the prices; it was made for the purpose of settling the whole matter in dispute relative to the work, and the arbitrators did actually settle the whole matter; Degraffenreidt and Tisdale went *to the house, viewed the work, compared it with Dee’s bills, and chose Parrotte as their umpire; and these three made the award: that Patillo did not execute his bond to Dee, on the terms mentioned in the bill; on the contrary, Patillo proposed to give his bond, about which Dee was indifferent, as he held the bills for the work and the arbitration ; but, at Patillo’s request, he received the bond, as a full and complete settlement, and gave up the bills and the award, which he would not have done if he had considered the matter still unsettled: that after the bond was executed, Patillo said, jestingly, that he would be glad for his own satisfaction, to have the work accurately measured, to which Dee answered that he might for his own satisfaction get it done if he could; but Dee never promised to do it himself, nor did he intimate, before or after the execution of the bond, that he would unsettle the award or bond again: that Patillo, sometime after-wards applied to Dee to have a remeasurement of the work and timber, to which Dee answered he would never refuse any thing that was right; and the same request to have the work remeasured, being repeated by Patillo, he told him, he had often declined, and then positively refused, to do so: that he considered himself no wise bound to measure the work now : and he insisted, that the award, and the bond given by Patillo was a complete settlement; but, he averred, his bills for the timber and work were accurate as to the quantity, and went into the particulars to shew that they were so.
    The affidavits of several witnesses were taken and filed by the parties, to the following effect: «
    1. Thomas Dee deposed (in two affidavits) that he was present at a conversation between the parties in the summer of 1820 [after Dee had brought suit on Patillo’s bond] in which Dee agreed, that when Patillo gave him the bond, he required that the calculations of the quantities of materials and work should still be made, to which Dee answered he was willing to any thing that was right; but though Dee admitted that this conversation had passed, he added, that *he did not think, then or now, that it was right to remeasure the work.
    2. Two carpenters, Hannah and Perry, deposed, that they had carefully examined and measured the work which was shewn them by Patillo (Dee not being present) and ascertained the quantity of timber in the whole work to be 25,922 feet. (Dee’s bills on which the award was founded, stated the quantity to be 33,194 feet.)
    3. Degraffenreidt, one of the arbitrators deposed, that he and Tisdale, after undertaking the arbitration, separa tel y viewed the work, in order to see the manner in which it was executed: that they after-wards met to make the arbitration and named Parrotte for their umpire (Dee being present, Patillo not) : that they took the bills of the work done b}' Dee, as furnished by him, and extended the prices, without entering into any calculations of the quantity of work or materials, Degraffenreidt and Tisdale not having seen it together, and Parrotte the umpire having never seen it at all: that Patillo had requested that a calculation should be made of the quantity of materials and work, expressing his opinion that there were considerable errors' in this respect; but as Degraffenreidt declined this service, and understood that Tisdale had done so likewise, he considered that the prices alone were submitted to arbitration, and the arbitrators acted only on the prices: that Degraffenreidt’s own price for hewing and sawing was six shillings per hundred, and he had done some at 5 dollars per thousand. (In the arbitration, Dee was allowed 8s. 6d. per hundred.)
    4.The arbitrator Tisdale deposed, that Dee’s work was done in a workmanlike manner: that he and the other arbitrator were called upon to settle the prices; but he considered, that the arbitration was to be a final settlement between the parties, and that a calculation as to the quantity of materials used in the work was part of the business of the arbitration, because Dee furnished them with a bill of the work, which bill was not disputed by Patillo: and he deposed that his price for hewing and sawing was 7s. 6d. per hundred.
    *5. There were two depositions of P. EJndaly, taken to prove and over-, charge in Dee’s bills as to the quantity of wagonage in hailing the timber. His statements were very confused, and somewhat contradictory.
    6. There were depositions, as to the usual mode of measuring such work in that part of the country; and
    7. Depositions, taken to prove that timbers cannot be accurately measured after they are worked up in a house.
    In this state of the evidence the cause was set down for hearing in the county court, February 1822; but it was not heard till June term 1824, when on Patillo’s motion, the count}' court gave him leave to file
    An amended bill, in which Patillo charged the arbitrators and the umpire, or a majority of them with partiality and corruption, and founded the charge upon their depositions : for that, 1st, the arbitrators took Dee’s wills as to the quantity of work and materials, without any calculation of their own or measurement: 2ndly, that, though they had set lower prices on some of the smaller items than Dee had charged, they had allowed on the heaviest items higher prices than he claimed ; and on the heaviest item of all (the charge for hewing and sawing 33,194 feet of timber) they had allowed Dee 8s. 6d. per hundred, when according to Degraffenreidt’s deposition, his own highest charge for such work was only 6s. and according' to Tisdale’s, his rate of charge was but 7s. 6d. and when even Dee’s charge was but 7s. 6d. in a bill rendered to Patillo, which he had handed to the arbitrators: 3rdly, that Dee, in a lumping charge for certain parts of the work, had charged 200 dollars, but the arbitrators had allowed him 380 dollars', and they had moreover made him an allowance.of 30 dollars “for work not mentioned in Dee’s bills.”
    Dee put in his answer to the amended bill at the same term, stating that the arbitra-. tors did measure the work, and insisting that their conduct in fixing the prices, was impartial, fair and just.
    *And on the same day on which he put in his answer, he moved the court to dissolve the injunction ; which motion the court overruled, because the answer to the amended bill had not been filed till that day. Whereupon Lee presented a petition to the superiour court of chancery, praying an appeal from the order of the county court overruling ¡.he motion to dissolve the injunction ; which was allowed.
    In the superiour court of chancery, in October 1825, the motion to dissolve the injunction was renewed ; but the chancellor overruled it, and ordered the injunction to stand till the hearing ; and, at the same time, by the consent of the parties, he appointed three persons to measure the work done by Lee for Patillo, to fix the prices thereof, and to settle all other matters in relation thereto, and make report of the same to the court.
    The commissioners made a long report of their procedings in execution of the order; shewing the manner in which they had measured and ascertained the quantities of timber and of work done, and settled the prices, with all the details. It appeared by their measurement, that the quantity of timber hewed and sawed by Lee, was 26,497 feet, instead of 33,194 feet charged in Lee’s bills on which the arbitrators acted, and that there were several other overcharges in those bills. And the result was, that Patillo had, already, 'as early as the 7th December 1819, paid Lee the sum of 300 dollars, over and above the just amount to which he was entitled.
    Lee filed several exceptions to the report; but they were all the same, in substance ; viz. that the commissioners had, without reason or justice, disregarded the accounts as settled by the arbitrators, both as to the quantity of work, and the prices.
    The depositions of the arbitrators were taken anew, and filed.
    1. Tisdale deposed, that, at the request of the parties, he went with Lee to Patillo’s, to view and arbitrate the carpenter’s work done for him by Lee : that Patillo told him ^Degraffenreidt was to be the other arbitrator, but he was not present ; that he, Tisdale, viewed the work : that he asked Patillo, whether he disputed the quantity or quality of the work ; and he said he did not ; that he called on them merely because he was not a judge himself ; that Tisdale might view the work then, and De-graffenreidt might view it at another time, and when they met, if they should disagree, they might call in a third person. The arbitrators appointed Parrotte their umpire, and the three met and settled the work.
    2. Degra ITenreidt deposed, that he examined the work in the presence of the parties, the other arbitrator Tisdale being absent : that it was then agreed by the parties, that Tisdale and he should settle the work, and. if they should disagree, call in a third parson : that they did disagree, and called in Parrotte, and the three settled the work : that Patillo observed to him, Degraffenreidt, that he thought Lee’s bill very high, and especially, the hewing and sawing appeared to him enormous ; and he expressed a wish that the arbitrators should make some calculation to see whether the bill for hewing and sawing was correct or not; but, not doubting the correctness of Lee, they did not enter into a calculation of any part of the work done : that the deponent saw Lee’s bills for the hewing and sawing, and supposed them to be correct from the view he had of the work.
    Upon the final hearing, the chancellor overruled Lee’s exceptions to the report of the commissioners, and approved the same ; perpetuated the injunction awarded by the county court to Lee’s judgment at law against Patillo ; and moreover decreed, that Lee should pay Patillo, the sum of 300 dollars with interest from the 7th December 1819 (that being the sum appearing by the report to have been then overpaid by him to Lee on account of the work by him done). From this decree, Lee appealed to this court.
    The cause was argued here, by Johnson for the appellant, and Leigh for the appellee. The argument consisted, *chiefly, in a critical examination of the pleadings and the proofs, and of the same matters of details, which are discussed in the opinions of the judges.
    
      
       Awards — flisbchavior of Arbitrators —Effect. —For the proposition that an award of arbitrators will be set aside on the ground of circumstances in their conduct, amounting to misbehavior, though not to corruption, resulting in injustice to one of the parties, the principal case is cited and followed in Shipman v. Fletcher, 83 Va. 609. To the same effect, the principal case is cited in Dickinson v. Railroad Co., 7 W. Va. 430. Also, on the question as to when an award of arbitrators will be set aside, the principal case is cited in Fluharty v. Beatty, 22 W. Va. 706; foot-note, to McCormick v. Blackford, 4 Gratt. 133; foot-note to Portsmouth v. Norfolk Countv, 31 Gratt. 727.
      See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   CAER, J.

The principles which govern awards, have been so often, and so solemnly settled by this court, that it would he an idle waste of time to state them again, or to cite the authorities on which they rest. If there be any thing settled in the law, it seems to be this, that to set aside an award, you must shew either a mistake apparent upon its face, or misbehaviour in the arbitrators. The court may be fully satisfied that the award has operated injustice, yet if the mistake be not upon its face, and there be no proof of partiality or corruption, it will not touch it. Whether these rules are wise or not, whether this domestic forum is to be cherished or discouraged, will hardly (I presume) at this day, be considered open questions.

That there is no mistake apparent upon the face of the award, seemed to be admitted, and must, I think, be taken as a clear point.

The first bill states, that Patillo employed Lee to do some carpenter’s work; and after the work was finished, considering his bills unreasonably high, he refused to pay them ; whereupon, they agreed to submit the prices of the work to the decision of Degraffenreidt and Tisdale, or their umpire : that the arbitrators confined themselves to price, taking Lee’s bills for amount of work : that when Patillo received the award, he told Lee he believed he had charged more work than was done ; that Lee promised to have an accurate calculation of the work and materials made, and that, in this respect, the award was not to be considered binding and conclusive ; and that, upon this agreement, he executed bis bond to Lee for 720 dollars, the balance due according to the award : that Lee afterwards, refused all measurement or correction, sued him on the bond, and obtained judgment. If Patillo could have established, either by the answer or by other proof, the agreement, on which *he states that his bond was executed, he would have taken the case off the ground of the award, so far as regarded the amount of work and materials, and would clearly have had a right to the remeasurement and calculation agreed on. But in this respect, he has failed. The answer is certainly no admission : Bee there says that the bond was not executed upon the terms mentioned in the bill; but on the contrary Patillo proposed to give his bond, about which he felt indifferent, as he had his bills and the arbitration, but at the request of Patillo, he received a bond, as a full and complete settlement, and gave up all his bills and the award; which he would not have given up, if he had considered the matter as still unsettled. He adds, that after the bond was executed, Patillo said, jestingly, that he would be glad, for his own satisfaction, to have the work accurately measured ; and Bee replied he might do so, if he could ; but he never promised to do it himself, nor did he intimate, before or after the execution of the bond, that he would unsettle the award or bond again. I think this a positive denial, and being responsive, must be disproved. Is there any evidence that disproves it? Clearly not, in my mind. No witness is produced who was present at the execution of the bond, when Patillo says the agreement to remeasure was made; yet there is a witness to the bond, — a female. If Patillo really disputed the correctness of Bee’s bill as to amount of work, is it not strange, that he should, in the first place, have permitted the arbitrators to take it as the basis of their award, and then when he found the award made, and the sum ascertained upon that basis, should have executed his bond for the balance, without one scrip of writing, or any witness to prove a verbal understanding, that he was still to have a right to unsettle every thing that was done? to destroy the very foundation of the award? The only witness who gives evidence touching this point at all, is Thomas Bee : he speaks of a conversation between the parties after the suit at law was brought ; and taking his two affidavits together (if I do not misunderstand them, for, the last espe-daily *is very ambiguously expressed) they only amount to this, that he heard a conversation between the parties, in which Patillo claimed, that he had required a re-measurement when he executed his bond, and that Bee had said he was willing to do what was right, but did not think a remeas-urement right. This, if it were proved by more than one witness, would not amount to any thing like an agreement; but being a single witness against the bond, executed unconditionally, and Bee’s positive answer, is of no weight.

The ground, then, upon which the first bill was filed, was wholly unsupported; and the injunction ought to have been dissolved, on the motion made in the county court, and the bill dismissed; but the court being divided, the motion was overruled. This was in June 1821. The case then stood upon an order to take depositions till February 1822, when it was set for hearing by the plaintiff. So it remained till June 1824, when upon the plaintiff’s motion, leave was given him to file an amended bill: a permission, which in my judgment, ought never to have been granted under the circumstances of the case, and after the great lapse of time which had taken place.

The new bill charges the arbitrators and their umpire with corruption. The grounds of this charge, as they may be collected from the bill are, 1. that the arbitrators took the bills of Bee as to the ampunt of work and materials, without examining those points themselves: and 2. .that they allowed 8s. 6d. per hundred for hewing and sawing, although their own prices for the same work, were, only 6s. and 7s. 6d. These, I believe, are the material points. No evidence is gone into, to prove from the words or the temper of the arbitrators, partiality or corruption ; it is rested on their acts as stated above. We must recollect that mere mistake cannot be established by evidence. Do the acts complained of, amount to partiality or corruption ?

1. As to taking Bee’s bill Degraffenreidt says, that when he met first on the business, Patillo expressed a wish that the bills should be examined as to quantity of materials and *work; but as he declined doing so, and understood that Tisdale also had declined such examinations, he considered the prices alone submitted to their arbitration, and accordingly they acted on the prices only. Tisdale, in his first affidavit, says he viewed the work at the request of both parties ; that he did consider the calculation of the work and materials as a part of their business ; but that Bee furnished a bill, which was not disputed by Patillo. In his second affidavit, he says, he asked Patillo, whether he disputed the quality or quantity of the work; he said he did not, but that he merely called on them,' because he was not a judge ; that he might view the work then, and Degraffenreidt might view it at another time ; and when they met, if they disagreed, they might call on a third person. Now, when he said that he did not dispute the quantity or quality of the work, but called on them because he was not a judge, what was it he called on them for ? Bet his original bill sworn to in open court, answer: that states, that believing Bee’s bills unreasonably high, he refused to pay them, and he and Bee agreed to submit the prices of the work, to Degraffenreidt and Tisdale. But what ever might have been his original wish, it is clear, that he knew the arbitrators were about to make their award without any measurement or calculation of- quantity, and to take Bee’s bills as their basis, and that he acquiesced in this proceeding. Degraffenreidt expressly declined such examination ; Tisdale considered Bee’s bill admitted: Patillo knew these things, and then was his time, to have insisted on the measurement and calculation, if he continued to think them material; but so far from this, it is evident, that in his conversation with Tisdale, he counted on the award being made without them ; for he tells him, he might view (not measure and calculate) the work then, and Degraffenreidt might view it at another time, and when they met, if they disagreed, they might call in an umpire. The arbitrators considered their award a final settlement; which could only be upon the ground, that the bill of Bee was admitted ; since a subsequent measurement and calculation must remove the*very basis of their work, and throw every thing again up into the wind. But more than all this, when the award was made, and presented to Patillo, he went into a settlement upon it, received a credit for all his payments, executed his bond unconditionally for the balance, and it is not till upwards of two years after, when pressed by a judgment on the bond, that he calls in question by his bill any part of the transaction. Under these circumstances, it surely cannot be imputed to the arbitrators as proof of partiality or corruption, that they took Dee’s bills as to quantity of work and materials.

2. The other charge of misbehaviour is, that although the price of Degraffenreidt for hewing and sawing was 6s. per hundred, and that of Tisdale 7s. 6d., yet these arbitrators allowed Dee 8s. 6d. ; and if this award had been made by these two men, this would have been, to say the least of it, a strange and suspicious fact. But we are told, on all hands, that if they differed, they were to choose an umpire; they did disagree, and then called on Parrotte. I need not say, that when arbitrators disagree and call in an umpire, the award is in law his, though they may sign it with him, Nor is he, in his decision on any point, bound to agree with either of the arbitrators, or to split the difference between them : he must be guided by his own judgment, free of all control; and, in the absence of all testimony, we must suppose he was so, in fixing this price for hewing and sawing. This then is no ground for fastening upon the arbitrators or the umpire, the charge of corruption.

But it was said, if these arbitrators had no agency in settling the amount of work and materials, it is no part of their award, and has nothing of the sanctity belonging to awards. I consider Dee’s bills as the statement of the subject matter, on which the arbitrators were to act ; as if the parties had said, here are bills of certain work done and materials found ; we cannot agree as to the prices ; you must judge between us in fixing them. The bills become thus the very foundation of the award.

*But suppose there were no award here at all; suppose that when Dee presented his bills to Patillo, he had examined them for himself, or got some friend better acquainted with the subject, to do it; and that, after such examination, he had settled with Dee, got all his credits, and executed his bond for the balance ; and after a judgment on the bond, had attempted to open the whole account from its foundation, and had shewn such a case as is now before us : I, for one, would have refused to open the transaction. Dook at the nature of it : no previous bargain is made settling any of the terms : the carpenter goes to work, finds all and does all; the work is finished; and the bill presented, containing a hundred different items, — timbers, wagonage, hewing and sawing, finding, measurement, prices, &c. &c. All is settled, the bills given up, and bond taken; and some six or eight years afterwards, all this is to be ripped up! How can you settle it then ? The carpenters tell us, that there is no such thing as ascertaining with any thing like accuracy, the quantity of timbers which have been used in a building. Dook at the measurement made by Hannah and Perry, at the instance of Patillo, and without notice to Dee. The persons who made that, tell us, that if they had measured side and edge, there would have been no material difference between their bill and Dee’s ; and many witnesses tell us, that this was the usual mode at the time the work was done.

It was relied on, that the commissioners who acted under the order of the supe-riour court of chancery, were appointed by consent of the parties by their counsel. I do not consider this as going, in the slightest degree, to shew the assent of Dee to open the transaction, or abandon the ground he occupied under the award. He moved to dissolve the injunction ; this motion was overruled; and all done afterwards, was in invitum. Before these commissioners, he protested against their proceeding, and claimed to hold to the award. Dook at the testimony as to the wagonage on which the commissioners seem to have rested their report, as to this matter : can any one read the depositions of Enfialy, *and give them much credit ? Will they not see, that when asked the same questions, by the different parties, he answers them differently ?

Upon the whole, I must believe, that to. open such a transaction as this, on such ground, will be contrary to the whole current of authority, and fraught with very mischievous consequences. Dook at the monstrous result here. The party who had a judgment at law on the bond of the other for 720 dollars with interest and costs, is called into equity, to injoin his judgment ; the bill seeks nothing more; yet by this process of resettlement, a balance is produced against him, and a decree entered, not merely to injoin his judgment perpetually, but, in addition, that he pay to the man for whom he built the houses, 300 dollars with interest and costs. I cannot agree to this. I think the decree should be reversed, the injunction dissolved, and the bill dismissed.

CABEDD, J.

It is manifest that great injustice was done Patillo by the award of the arbitrators; and I think, this injustice may be remedied without the violation of any established principle. I do not say, that these arbitrators were corrupt; but they have reposed a confidence in the unproved representations and statements of one of the parties to the submission, which, to say the least of it, amounts to misbe-haviour, if not to partiality.

The language of the bill is so defective in precision, that if we were to look to that alone, we might, perhaps, be somewhat in doubt as to the extent of the submission ; whether it embraced the quantity, as well as the prices, of the work. But when we look to the conduct of the parties, and to the evidence in the cause, there can be no doubt, but that the whole subject of the work was referred ; quantity, quality and prices. Dee expressly swears it in his answers ; for he says, that it was not true that the reference was confined to the prices, but it was for the purpose of settling the whole matter in dispute relative to the said work &c Tis-dale, one of the arbitrators, says, that at the first meeting of *the parties (the other arbitrators not being present) he asked Patillo, whether he disputed the quality or quantity of the work ; he said he did not, but that he merely called on them because he was not a judge of it himself. Surely this did not mean, that he acquiesced in Bee’s bill in these respects. If that were the case, why call on them at all ? Not knowing whether the bills were right or wrong, he could not, as an honest man, dispute it; but left it for them to decide. Degraffenreidt, the other arbitrator, says, that when he first met the parties, Patillo requested, that the calculation of the quantity of materials and work should be made, and expressed his opinion that considerable error existed in this respect, Now, let us see what was the conduct of the arbitrators. It is admitted, that they made no inquiry into, nor any estimate of, the quantity of materials or of work, but were guided intirely by Dee’s bills. Tisdale says, he did not make any calculation, because Patillo did not dispute the bills in these respects. I have shewn already that he did not admit them. It was, consequently, the duty of the arbitrators to make the necessary inquiries to satisfy themselves of their justice. Degraffenreidt repeats in his second deposition, what he had said in the first, as to Patillo’s anxiety on this subject; that he observed, that he thought Dee’s bills were very high, and especially the hewing and sawing appeared to him to be enormous ; and that he expressed a wish that the arbitrators should make some calculation to see whether it was correct in these respects. It is worthy of remark, that these objections, made in the presence of the arbitrators, related only to quantities of work and materials ; for Dee’s bills as submitted to them contained no prices; yet the arbitrators made no esti.nate of quantities whatever. I have given the reason assigned by one of them for this omission. Then let us hear the other: Degraffenreidt, after relating Patil-lo’s anxiety for them to make the calculation, says, that not doubting the correctness of Dee, they did not enter into a calculation of any part of the work done for Patillo. And as to the umpire, he never saw the work at all. I cannot sanction an award thus made.

*Nor do I think the bond given by Patillo precludes him from seeking redress in equity. He says in his bill, that at the time the bond was given, there was an agreement that there should be a re-measurement of the work. Dee professes to deny this; but I do not believe him. His answer appears to me to be an equivocation. In another part of his answer, he has stated what is certainly false; for he says that the arbitrators went to the house, viewed the work and compared it with his bill ; in which last particular, he is contradicted by both of them. Besides, the proposition to remeasure the work, was under the existing circumstances so reasonable, that no fair and just man could have objected to it. But even if there was no agreement at the time of entering into the bond, yet, on general principles, as the bond was founded on the award, and as the award itself was liable to be set aside for misconduct of the arbitrators, and is in many respects contrary to justice, the bond itself ought to be no more respected than the award. I am for affirming the decree.

TUCKER, P.,

concurring in this opinion, the decree was affirmed.  