
    BAKER’S heirs vs. CROCKETT.
    A misjudg-rnent of arbi-tratots^ upon 1⅛'⅛”¾ not, alone, a íuíSc^ent «ufe anhwanf,* 6
    Fraud,coiiu, c°n’misbeháví’ our in the «rb¡. tracors, is a fuf-ficient ground *ward.
    So is a mif-take, produced by the fraud or unfaimefs of one of the par. 1-'5-
    AFTER a judgment in ejectment, by confession, it» favor of Baker, against Crockett, the parties mutually entered a submission to arbitrators of their rights ta land in question, according tothe act of assembly concerning awards. 
    
    Raker claimed under-. Van Swearingen’s settlement and pre-emption ; Crockett claimed under James Hen-. derson’s settlement and pre-emption. Henderson’s set-^ement an'l pre-emption, of 400 acres, was entered to lie “ on the trace from, Roonsbarough to the lower salt spring on Ricking, called the Sycamore forest, and runn¡njr down the creek for quantity
    The entry oi the pre-emption right ot 1000 acres, was, ‘⅝ Lying on the trace from Roonsborough to the low-, salt spring on Licking ; joining his settlement at the 1 o ' ° o Sycamore forest, all around,; and to run down the creek for quantity.”
    The arbitrators, on the 2nd day of March 1802, awarded, that Van Swearingen’s entries could not legally take any of the land in controversy.
    Matters of account on which an award' dig founded, ought not to be unra-velled, in order to get at a mif-take of law or fa&,whereby to i fee aftde the award.
    The award ¡tfelfmuft fur-nidi the miftake of law or faft, for the court to a& upon.
    If an award, on the face of it, be at firft bluih outrage-oufly erroneous, this may of it-feli be evidence of partiality or corruption, and fuperfede the neceffity of pro* ducing other proof.
    In awards there are cafes of falfe afiumption of prerni. fes, of general legal principles not applicable to chis or that particular cafe, arid of plain mif-takes, not of judgment, but in carrying the judgment given into the details of the tranfaction, which ought to be relieved againft, when Apparent*
    A miftake in the conftru&ion given to an en
      try, U not ftif fi^ient to fet a,f¿e an award.
    
      They also decided, that Henderson’s entries were valid ; that the call “ running down the creek for quantity,” must be rejected as uncertain, it equally applying to Johnson’s fork, and to Hancock : and, that the settlement should be surveyed in a square to the cardinal points, with the improvement in the centre ; that the pre-emption should be surveyed in a square, around the settlement, with lines parallel thereto, and equidistant therefrom. The award refered to objects laid' down on the connected plat; stated that the legal claim of the plaintiff must yield to the superior equitable claim of the defendant, and then proceeded as follows, to wit :
    “ And from the connected plat before us, it appearing that the claim of the said Henderson is already laid down, conformably to the foregoing opinion ; and, that the interference between the purchase of the said plaintiff, and that of the said defendant, is 85 3-4 acres; therefore, we do award, that the surveyor of Clark county, do go on the land in controversy, and plainly mark and bound the said 85 3-4 acres ; and, that the plaintiff, by a deed containing a covenant specially warranting the said 85 3-4 acres of land, against himself and all others claiming from or under him, do convey, on a day to be fixed by the court, the said 85 3-4 acres of land, to the defendant,”
    The connected plat, returned with the award, shewed the improvement, lying about 470 poles west of Strode’s creek, on the trace which, led from Boonsborough down that creek, towards the salt spring, and about half way between Johnson’s fork and Hancock, branches of Strode’s creek, and about 170 poles from either.
    This award was returned into court, and the parties waived any exceptions as to there not being fifteen days between the date thereof, and the court to which it was returned. Whereupon, the award was made the interlocutory decree of the court, and an order of survey made.
    Upon executing the order of survey, under the award, it was found, that the surveys of Henderson’s settlement and pre-emption, were too large, having surplus land in them ; and, that upon laying off the quantity of 140Q, according to the directions of the award, that th& interference would be only 77 1-4 acres, and 31 square poles.
    in, an award relative-1⅝0 con-fl¡¡¿l¡;>g land claims, a noif-⅜s to the quantityof acres to be conyeyed, when the mode of fuífveyiiig to afcerfain the jiropep quantity \vas, given and direñed, will not vitiate the, award j but the court carrying the award into ci&&-a flvpuld in their decree cor. re.il ⅛
    
      An&mrá certain to a cam-isón intent, is fufEcient.
    This rule exemplified in relation to the quantity of cí-tase to be conveyed.
    The death of a¿p,aity to an arbitration, after aiL award made and entered a« tbeinterlocuto r.y decree of the court, but before final decree thereon, does not render the award invalid j but it remains obligatory on his representatives.
    After entering the interlocutory decree, Baker died. His heirs entered their appearance to the suit, and at the August term 1805, of the Bourbon circuit court, that court, by their final decree,, reciting the substance, of the award, the death of Baker, &-e. proceeded—
    “ And whereas it appears by a certificate of the said-arbitrators, that their award was predicated on a supposition, that the survey of Samuel Henderson’s settlement and pre-emption, under which the defendant,, Crockett, claims, contained only 1400 acres ; and, that if there is a surplus, it ought, by a new survey,, made in. conformity to said award, to be excluded as it was.not the intention of said arbitrators, that said Crockett should1 recover it.” And then, reciting-the substance of the survey made under the award, proceeded to decree and order, “ That the representatives of John Baker, deceased, to wit: Joshua Baker, &c. do convey to James. Crockett, within six months after they severally arrive at the age .of twenty-one, by deed, containing a covenant, specially Warranting the said 77 1-4 acres and 31 square, poles, against themselves, their heirs, &c.
    Frqtn this decree Baker’s heirs appealed.
    
      Hardin and Bledsoe, for the appellants . — The first error assigned, “That the award is interlocutory, and not final,” has lately been overruled by the decision in the case of Galloway's heirs vs. Webb 
      . But this award, is liable to other exceptions. The quantity of estate to. be conveyed to Crockett, is not decided, either by the award, or the decree of the court. Whether an estate for years, for life, or in fee, is to be conveyed, is.left uncertain. If the common law rule of construction is to prevail, the appellants would not be bound to convey-more than a life estate. The act of assembly altering that construction, extends to contracts and conveyances only: not to judicial proceedings . They should^ contain absolute certainty, and not leave for subsequent adjudication, the meaning of an award or decree — See. 1 Bac. Ab. (Gwil. Ed.) 302, 218.
    Another and more important objection to this award, is, that the arbitrators have committed a plain, mistake, of both law and fact; manifest from the award, and the connected plat, and the proceedings under the award.
    
      When parties refer their disputes to arbitrators', it ⅛ to obtain the decision of the law upon their controversy, in a more expiditious, and less expensive mode, than ⅛ the courts of justice. As far as arbitrations answer this purpose, they should be encouraged, and exceptions to form disregarded. But when they defeat this end ; when they do not pronounce the decision of the law ; but make an award erroneous upon its face ; it should ⅛ set aside, or they will be made the instruments of injiiS-tice.
    It has', therefore, been laid down, that a plain mistake ©flaw, or fact, apparent on the face of the award, is a sufficient cause for setting it aside — 2 Vern. 7"05 — 1 Atfc* 63 — 3 Atk. 494 — 1 Bac. Ab. (Gwil. Ed.) 339.
    That the arbitrators, in this instance, have not pro* itounced the decision of the law, is manifest. By refer* ing to the connected plat, they make it a part of the a** ward : without it, the award cannot be understood. Indeed, few decisions on interfering land claims, whether by award, or the decree of the court, can be un der* stood, without the help of the connected plats. They form a part of almost every decree. From the! face of the pfcit, in this ease, the settlemeajljygit^ttfciiBocterson,-may be surveyed, it is true, to r r&% er to run down Sanecck, eilhcnt: *$nt n i ay be Smwey e el as this court decreed in the cape of v Rice,
      
       at the spring term 1807⅜]⅛⅞& ⅜⅛⅞⅞&⅝-⅛e which goes the general course of Strode1s creek, of which the others are but branches. But if it were doubtful which of these modes of surveying should be pursued, that would not justify disregarding the call altogether j and thereby making the entry cover land far above the improvement, which the locator never could have intended to include : nor could any person ácquainted with the spot, ever have supposed that the land now in dispute, Was intended to be appropriated by Henderson’s entries.
    Survey the settlement to riiri down any of these water courses*, and neither it, nor the pre-emption, can cover the land in questiom No rule of decision adopted by this court, has ever justified rejecting a call which applies to notorious objects, and will assist in giving figure to the entry» If the uncertainty is insuperable, it might destroy the entry ; not give it other land, that could not have been contemplated»
    The error of fact in this case, is as palpable as the error of law. After having stated the manner in which Henderson’s settlement and pre-emption should be surveyed, they decide that they have been so surveyed, and that the interference is 85 3-4 acres. This is now given up as a mistake in the quantity. After the arbitrators had awarded to Crockett 85 3-4 acres, the award was beyofid their power ; they could neither alter nor amend it- — See the case of Fitzgerald,, Wc. vs. Fitzgerald¿ IFc. decided at this term 
      .
    
    
      The certificate refered to in the final decree, does not appear in the cause ; and if it did, could not aid the case. As to this, it is an award relating to but one subject matter : if it is void or erroneous as to’part, it is so as to the whole.
    The attempt of the court below, at curing this mistake of the arbitrators, by decreeing a conveyance of on-, ly 77 1-4 acres, and 31 square poles of land, furnishes another fatal objection to this case, as noticed in the sixth assignment of error — That the decree does not pursue the award, but is variant therefrom.”
    The court also erred in entering a decree against Baker’s heirs. A submission to arbitrators, determines by the death of either party — 2 Vera. 444 ; and the arbitrators cannot proceed. Here, though an award was made, that award was not final : it formed the foundation of an interlocutory decree ; and until the award was made effectual by final decree, it should be considered but in fieri ; and therefore determined by the death of Baker, and was not at all obligatory on his heirs.
    
      Clay, for the appellee.
    An award, certain to a common intent, is sufficient. This award decides that Crockett ha sthe equitable title to the land, and Baker the legal ; and therefore, that Baker shall convey, with special warranty. This shews that the conveyance must be of the whole title which he has to the land awarded to Crockett.
    It cannot be denied but that cases may be found that lay down the.rule, that if arbitrators mistake in a plain point of law, or fact, apparent on the face of the award, their award may be set aside. But what shall be considered a plain mistake, is yet to be decided. It is also true, that this court, in the case cited, have put a construction upon Henderson’s entries, different from that put on it by the árbitrators. But a difference of opinion ⅛ the construction of an entry, never can be considered a mistake inlaw. It is frequently, and in this, was, in fact, the principal point in controversy. If it is to be considered the ground of setting aside an award, no award on that subject, will stand, where the court differ in opinion from the arbitrators. An arbitration will be only the introduction to a suit. This kind of cases must ⅛ considered'misjudgments ; and atyiward will neves1 be set aside for a misjudgment.
    
      
      May 16th.
    
    The mistake in the quantity of acres, was one which the plat before the referees, led to : but as the arbitrators directed the mode of surveying, and required it to be done before a final decree was to be pronounced, the mention of the quantity, was immaterial. And if the land covered by the principles laid down in the award, is not as much as the arbitrators supposed, it cannot vitiate the award ; but it will remain valid, for so much land as is embraced by those principles. The inferior court, therefore, did right in decreeing a conveyance of the 77 1-4 acres and 31 square poles only.
    The award, when made, was valid and binding on Baker. It was then complete. His death cannot, therefore, avoid the award, any more than it would the interlocutory decree of a court, in an ordinary suit. The award, when the suit was revived, remained as effectual against Baker’s heirs, as it was against him in his lifetime.
    
      
       Ails of i Ses. 1798, ch.aj, p. 57, 1 Brad. 57.
    
    
      
       Actsc of i Scf. 1798, ch. 25, § 2, p. 58, 1 Bjad, $8.
    
    
      
      
        May izih.
      
    
    
      
      
         Ante 318.
    
    
      
       Aéts of 1796-7, p. 75, § 11, 1 Bitd, aoo.
    
    
      
       ALLEN and wife vs. RICE.
      In Atscfe, the fame entries came director ⅜⅝⅜&¾⅛.' Tfie o-dnion of ■the court, after, bating the entries, the reiati ve^fition; oí the prd* «eeded as follows ;
      
        ct The court,,upon a.general view of thefe waters, when takencblle&lvely, and the,manner in which the trace rumdown the waters, when thus viewed,are of opinion; that the call to run “ down tbt cried,” would pfópefly HaVé -been' underftood by all thofe who went along the trace by the Sycamore-foreft, &> mean, that the land Ihould lie along the Trace coward» the fait Ipririgs* am# not along tho trace towards Boonsborough, which wOuldbe up the watfets-, of *reek.
      u The c^urt are therefore-ofr opinion, that the féttlémfertt entry flroeld 'ha*v£ Been furveyed, fo as barely to include Henderfon’s improvement at the Sycamore fotsft-, and extending .from it, alongthe trace-towards the fait spring’s; in a fquare figure* ipkhijnes at right angles* and pafaMel to the general ceuríe fff so much of the trace, as will be included by 4C0 acres j equal quantities thé*e-*0/, to Ue: on each fide 01 the general coarfe. '
      “The court arealibof opinion, that the call iirthe pre-emption entry, ttf run down the creek for quantity, muft be couriered in ike fame light With that call in the lettlenaeot entry-; and that it ought so far to qu-aílly-the? calf far. “ lying.all- around the fettlement,” as to make ironly tsntanfcent to a call far including the íetttement, and ruanÍDg' down -the- cieekTor-qyia&tityi ■ 
        “ That, confequently, the upper or rooft fouthem boundary of the settlement, when extended equal diftances each way, fofaras to form the bafe of a fquare of 1400 acres, íh'uld form the upper, or moft fouthern boundary of the pre-emption ; and that the pre-emption ihould belaid off at right angles from the bafe line, on the northwardly fide thereof, in a square figure, fo as to in* elude the fettiement, and alfo 1000 acres, for the pre-emption.”
      The figure.above given to the pre-emption, isat variance with the decifiona heretofore pronounced on entries, calling, in fubftance, to adjoin three fidei of a former entry. They have uniformly directed the fecond furvey to )>e form* ed by lines parallel to, and equidiftant from the three lines of the entry te be adjoined—See Moore vs. Harris, Pr. Dec. 26—Crow's heirs vs. Brown, Pr. Dec. 119, 124.
      In this cafe of Allen & wife vs. Rice, the land in controverfy lay fouth of the'fettlement, which, according to the decifion of the court, was to be adjoined by the pre-emption on the other Jfdes — (o that the previous points deci* ded in the caufe, removed Henderson's pre-emption off of the land in contro-verfy. It was not neceffary for the court to give any figure to the pre-emption. The reporter, therefore, prefumes, the figure directed, was from not adverting to a point of no importance in the cafe, rather than to an intention in the court, to overrule a train of well-fetded deciiions* in a caufe in which the queftion was not diredtly before them* '
    
    
      
      
         Ante 227.
    
   Edwards, Ch. J.

delivered the following opinion of the court: — After verdict for Baker, in an ejectment against Crockett, the parties mutually entered into, and submitted to a rule of court, appointing certain arbitrators, according to the act of assembly concerning awards; to determine the interference between Van Swearingen’s settlement and pre-emption, under which Baker claimed, and James Henderson’s settlement and pre-emption, under, and a part of which, Crockett claimed.

The arbitrators awarded, that Van Swearingen’s entries could not legally take any part of the land in controversy ; that Henderson’s claims were valid to a certain extent; directed the manner in which they ought to be surveyed ; and, that so far as an interference should then exist, Baker’s elder grant should yield to Crockett’s superior equity. But, supposing, as they state, that the claims had been surveyed conformably to their direction, the interference was taken to be eighty-five acres, three roods; it was therefore ordered, that die surveyor should go on the land, to mark out the metes and bounds ; that a conveyance, with especial warranty, &c. should be executed therefor, by Baker to Crocket, on a day to be assigned by the court. This award was returned, and made the interlocutory decree of the court, and an order of survey made ; upon executing which, it was discovered that the interference would only be 77 acres, one rood, and some poles, when a surplus in Henderson’s surveys, unknown to the referees, should be thrown out of the estimate. After the interlocutory decree, Baker died, the heirs became parties, and the court, reciting these circumstances, made a final decree against them, for the 77 acres, one rood, and some poles, to be performed by the heirs under age, within six months after they should respectively arrive at full age ; from which decree, the heirs appealed to this court.

Several errors assigned, need not be particularly no, ticed, since the opinion delivered at this term, in the case of Gallorway's heirs vs. Webb ( ). The objections principally urged against the award and decree, are, that the arbitrators proceeded, 1st, “ On a plain mistake of law 2diy, “ On a plain mistake of fact; apparent in the face of the award and papers in the cause.”

The mistake of fact alluded to, respects the surplus land, and the statement in the award, that Henderson’s claims were surveyed or represented on the plat, agreeable to ¡the construction given thereby to the entries the mistake of the law, alludes to that construction itself.

Henderson’s settlement of 400 acres, was entered to lie “ on the trace from Boonsborough to the lower salt spring on Licking, called the Sycamore forest, and running doran the creek for quantity.”

The entry of the pre-emption right, is, “ lying on the trace from Boonsborough to the lower salt spring on Licking; joining his settlement at the Sycamore forest, all around ; and to run down the creek for quantity.” The arbitrators rejected the expressions u runningdown the creek for quantity,” as.uncertain ; because they equally applied to Johnson’s fork and Hancock. And this is the error complained of, as a mistake of law.

Kyd on awards (p. 239) says, “ If it appear that the arbitrators went on a plain mistake, either as to law, or in a point of fact; that is an error appearing on the face of the award, and sufficient to set it aside and 2 Vernon 705, is cited. That is the case of Corneforth vs. Geer, and is the dictum of the lord chancellor, not much longer than the citation of the case by Kyd ; the chancellor uses the expression, however, “ in the body of the award.” What matter of fact, or of law, was charged tp have been mistaken, that case does not inform us ; but we are told it was a bill to set aside an award; “ but the plaintiff failing to make out his case by proof, bill dismissed.” That case is either very loosely reported, or the chancellor expressed himself very loosely, or tra-velled out of the case, to give a mere dictum upon a point not before him. For it is hard to conceive, how, as to the matter appearing, or which ought to appear in the body of the award sought to be set aside, the plaintiff could fail to make out his case by proof; or how any proof could be required of that which appeared in the body of the award.

This case happened in the year 1715 : previous to' this, in the case of Brown vs. Brown (1 Vernon 157), the lord keeper dismissed a bill brought for relief against an award, where an umpire had made it out after he was forbid, and after the waste, which was the subject of dispute, had been repaired, except as to 40s. who notwithstanding awarded 380/. against the defendants. He said he saw no fraud or collusion in the matter ; the damages were not outrages ; the treble value (of the waste committed) might not have been awarded. He said, where there appears a manifest error in the body of an award, there, m some cases, there may be relief against it in chancery ; but where the error does not appear, without unravelling of it, and examining into matters of account, he thought it was not relievable here. This case was decided in 1682 : subsequent to both, in the case of Ives and Medcalf (1 Atk. 63), chancellor Hardwicke set aside an award upon a bill brought, because the articles were shewn only to one of the arbitrators, and not to both ; and he to whom they' were not shewn, swore that if he had seen them, he believed he should not have made such an award. The chancellor, therefore, held, “ That it was unfairly obtained ; but agreed to the general rules in cases of awards, that the arbitrators are judges of the parties' own choosing ; and that therefore they cannot object against the award, as an unreasonable j udgment, or as a judgment against law : but where the arbitrators are deceived, or make their award clandestinely, without hearing each party ; in such cases, a court of justice ought to interpose, and frustrate such awards.”

Kyd 123, cites 2 Ventris 243, as authority that a decision of arbitrators, awarding damages, where, in point of law, there was no cause of action, was, nevertheless, supported, “because the parties have made the tors their judges." _

_ In the case of Ridout vs. Pain, in 3d Atk. 494, die doctrine is again glanced at: the cases of Corneforth vs. Geer, and Medcalf vs. Ives, before noticed, are referedto as supporting a position rather more extended than those cases would seem to warrant. In the case of Ridout vs. Pain, the chancellor (as reported) said, that if the arbitrators in their award are mistaken in a plain point of law, it is ground to set it aside ; and he refers to the cases of Corneforth and Geer, and Medcalf vs. Ives; and says, they determine the point, that where the arbitrators go upon a plain mistake, either as to lazo or fact, equity will relieve against the award. If by these expressions it were intended to assert, that the misjudgment of the arbitrators, upon points fairly before them, unmixed with fraud, collusion, concealment, or unfairness ; either of the referees, or of the parties submiting ; should alone be cause of setting aside an award : with due deference to the great chancellor, whose words they are said to be, we iAust say, the cases cited do not go to that length.

In the next sentence, he says, if it had been on a doubtful point of law, the award might have stood, “ Notwithstanding the court, upon great deliberation, should be of a different opinion. But (he says) I am delivered from this, the award does not specify any particular uses, but directs that a deed to lead to the uses, should be executed, to confirm the estates as the same were given by the will of Richard Pain : and therefore there is no occasion to enter into the debate, how far the court have power over awards." This is surely not taking it for a settled principle, that if the award had specified uses, different from those directed by the will, as construed by the court, that the award would therefore have been set aside. The chancellor expressly declares, in the same, or the next sentence, that if the deed which had been executed, differed from the will, it differed equally from the award.

In the case of Champion vs. Wenham (Ambler 245), it is said, that on a bill to set aside an award, without more, the court will not let the party go into any legal objections, but for partiality and corruption. But if the bill is for an account also, to let in such account, the plaintiff may make legal objections.

jn ⅛¾ case, the arbitrators were parties, and confes-sec^tw0 mist;akes : the one in not considering some extra work, not within the contract ; the other in the computation of the total for “ rough paling.” These mistakes shifted the balance to the other side ; and yet the award was not set aside in toto.

In the case of Lingood vs. Eade, 2 Atk. 501-4, determined by lord Hardwicke, in 1742, which was a bill to set aside an award, and to have an account, generally, of partnership transactions ; the chancellor said, the prayer of the bill, to set aside the award, must be founded upon the fraud, corruption, or misbehaviour, of the arbitrators ; for it would be improper to come into chancery to set it aside, “merely for an objection in point of form” In this case, the chancellor makes a remark well worthy of notice, that courts had formerly gone so far as to make it almost impossible, for the arbitrators to do what is the main intention of the submission-- — the putting an end to the differences between the parties. In this case too, the chancellor says, that courts of law and of chancery, ought to be governed by the same rules in determining awards ; for if chancery should take the greater latitude, confusion and uncertainty would be introduced.

But, upon the whole, it appears very doubtful, what» meant by the chancellors, when they speak of setting aside awards for mistakes of law or fact appearing in the body of the award ; they say, it must be a plain mistake. If it should be on a doubtful point of law, the court will let it stand ; although not settled according to their deliberate opinion. What kind of mistakes shall be called plain mistakes, apparent in the body of the record, none of the adjudged cases explain ; for it does not appear, that any case was ever adjudged upon that principle, that is to sav, of misjudgment óf arbitrators in the very matter submitted to them ; fop all the cases in which these doctrines were advanced, were adjudged and decided upon,different grounds.

It would rather appear, from the cases before cited, that the misjudgment of the arbitrators, or determination contrary to the opinion of the court, is not alone sufficient to set aside the award ; it must be a mistake, produced by one or other of the parties, by fraud, or unfairness, imposing false premises upon the referees, or by the collusion, corruption, or misbehaviour, of the ar-bitr-ators. In all cases of relief sought against awards, it seems evident, that the first inquiry must be, have the arbitrators settled the matter rightly ? For if they have, there is no cause of complaint. The court would not undo, for the pleasure of doing, the same thing. But if they have not settled the matters according to the opi> nionof the court, then the question arises, ean the court relieve against the judgment oí the arbitrators, upon the very case to them submitted ? Does an appeal lie from tile judges chosen by the parties, to those appointed by law, in all cases ? If not in all, in what cases does it lie ? If it is said, in every case where they have committed a plain mistake of law or fact, notwithstanding the parties have demeaned themselves properly, and the arbitrators also, then it would seem, that the award is but the foundation and commencement of litigation, where either party is dissatisfied ; and thus the intent of the submission defeated.

This doctrine would certainly be absurd, and therefore, a qualification is necessary ; this is contended for, by saying, the mistake must be apparent in the body of the award. Must this mistake be in the premises assumed ? Or in the conclusions drawn from those premises ? Or will either do ? What is to be understood by the body oí the award ? It has been before remarked, that the cases adjuded were all upon matters dehors the award, and requiring a bill and proof, to bring them before the court. They were not cases of erroneous conclusions from granted premises, but for omissions of a part of the subject, which'ought properly, to have been examined ; and, when combined with those upon which they did give judgment, ought to have produced a different conclusion ; or for the presence of some circumstances, which ought to have been absent, in order to leave the judgment of the arbitrators free and unbiassed ; such as the omission to take into calculation, the amount of certain work done, and a wrong addition of the amount of some articles, as in the case in Ambler — the withholding of the articles of agreement, as in the case in 1 Atk. — -¿i charge of fraud and collusion, as made by the bill (but not supported by proof), as in 1 Vern.— the charge of some matter (we know not what), which was not proved, as in the leading case of Corneforth vs. Geer, in 2 Vern.

But it is not any where said, that the court can unravel the accounts, or the award, to get at a mistake of law or fact, whereby to set it aside. But the contrary is expressly said, in 1 Vernon 159, before cited ; and although the cases are numerous, in which awards have been set aside in chancery, they are cases in which fraud, partiality, or corruption, in greater or smaller portions, have infected the transaction of the party, or of the arbitrators, in procuring or making up the award ; that is £0 say, in those cases, where there were no other legal exceptions, which would be sufficient to prevent a judgment from being entered thereon, where the submission was by a rule of court; or where, upon an action on the bond for non-performance, the exceptions would not be good on the plea of “ no award made.”

It may fairly and reasonably be affirmed, then, that the award itself should furnish the matter of mistake of laxa qr fact ; and not a resort to the evidence upon which the arbitrators decided ; and from which they extracted an erroneous deduction of an existing lact, when it was not a fact ; or that the law operated so upon the facts, when it operated otherwise.

For examples, to make the distinctions more evident, suppose the arbitrators say, “The defendant’s having executed the deed on the day expressed therein, had dives-tec/himself of all interest in the land,” &c. “ Wherefore, we award,” &c. Now, suppose these were the matters submitted, the arbitrators have assumed a fact, to wit, the execution of the deed, and a point or construction of law, that something passed by the deed ; but the deed itself is not incorporated with the -award — shall one of the parties be permitted to aver the deed was not executed? And that the arbitrators made a plain mistake in supposing so, and ask the court to re-try that fact?

Again, shall he be permitted to produce a deed — aver it to be the same deed alluded to by the arbitrators, and ask the court to say whether any thing passed by the deed ; and without proving or alleging any fraud or partiality in the transaction, thus to set aside the award ? If so, the submission to arbitration, and an award in pursuance thereof, is a mere p'lay-thing, to be thrown aside, when either party is tired of it.

But let us suppose that the arbitrators had (in the last case), refered to the deed and the evidence of the Éjcécution of it, as annexed to their award; and tfye ‘court should think they had mistaken one or both the points plaiuly; can the judgment of the arbitrators be con-troled.? They jyere judges also,- and of the parties’ own choosing; and they have decided nothing more than was submitted to them. If it should be made appear ti át the arbitrators, were in collusion, partial, or corrupt; then we answer, at once, on that account the decision ought not to be binding: and the cases before cited, would bear directly upon the question. If the case was Outrageous, at first blush, this might, of itself, be evidence of partiality or corruption, add supersede the necessity of producing other evidence; .

But .suppose it is one of those mistakes, from which no such suspicion can arise; and yet the mistake may be plain ; then the important question must arise, where shall the line be drawn, between those cases where the judgment of the arbitrators shall prevail, and where that of the court ?

To settle this rightly, is surely a task which requires much circumspection ; in as much as these tribunals, in-, stituted by the voluntary and express assent of the parties ; highly beneficial arid desirable for their convenience, frugality, arid dispatch ; may, in One mode óf re-mising them, be made totally dilatory and useless, if not unused ; whilst, on the other hand, they may be made the instruments to rivet fraud and injustice upon the parities, or a shield to cover collusion arid corruption.

There are many cases, where fhe law and fact are inseparably combined ; particularly, where the rules of law are used to find out the fact of intention ; as in the construction of deeds; and other writings: and the base now under consideration; ⅛ of that description, jf these cases are to be overhaled; arid the áwards set aside, because the court should, in construction, or ⅛ the result from, law and facts combined, .differ from the opinion of jfhe arbitrators ; all such cases; or a very great portion pf them, .roust only be delayed by an arbitrament; unless fhe prbitfatprs aye upcoírimoriiy caütipüs and careful to lock up. m secret the principles upon which they 4ecidé;

But there are cases of false assumption of premises, ,pfgeneral .legal frincipdes, hot applicable to this or that particular case; and of plain mistakes,,not of judgment; büt ofcárrying the judgment given into the details of ^ transaction; which ought to be relieved ágainst, when apparent: as if the arbitrators should assume; as legal premises, that an act of assembly had passed after the date of the transaction, when it had passed before, and give their award evidently bottomed upon the mis-» take; npt of judgment, in drawing the conclusion; but in taking the premises ; or where, having decided the principle, they commit a mere inadvertence, in the amount or extent of benefit, or disadvantage, resulting to one of other of the parties, in a calculation under that principle; as, having mentioned several sums, they mistake the aggregate. In these, and such like, the measure of relief, can only be decided by the sound legal discretion of a court, when the case is presented; either by setting aside the award in to to, and deciding as if it never existed ; or by correcting the mistake, as in the case cited from Ambler.

By this view of the cases, as at common law, we may be greatly assisted, in respect of the proper effect and operation of the statute of this state, which declares that an award under that act, shall not be invalidated, or set aside, unless it shall appear to the court, “ That such award was obtained bv corruption, evident partiality, or other undue means” (). Again, by the third section of sanie act of 1798, it is declared, that no award made by virtue of that act, shall be liable to be examined into, superseded, or revised, or be set aside, for want of form onl\, nor for other irregularity, if by such award it manifestly appears that the suit, matter, or controversy, is thereby finally and certainly decided provided, however, that nothing therein contained “ shall be construed to take from courts of equity, their power over awards,” &<\

This was a submission under that act; and it is true, that this court, at a former term, when the entries of Henderson’s settlement and pre-emption came in question between other parties, did give a construction of the entries different from that given by the arbitrators in this case. Many depositions appear in the record, but no bill or answer, or any order or leave to take depositions ; the parties stated their respective rights in the submission, and it is highly probable that these are th« depositions used by the arbitrators, there is nothing ⅛ shew us that they were the whole, or a part; the arbitrators might have heard, oral testimony. No motion or bill has impeached the award, upon any other grounds than those arising out of the award itselfand the appeal was taken from the judgment or decree entered, after the return of the award to court.

The construction, given to these entries, after all the light which, has been thrown on the case; upon testimony before the arbitrators, or not before them ; or upon the statement by them, made, in their award ; is far from being such, a case as ought to. call forth the interposition of a court of law or equity.. The validity of the entries, and the figures they ought to give to the surveys, are the very matters submitted to arbitrament, and require the application of the rules of construction, to facts and objects, by which to ascertain intention, and whether that intention was properly signified.

We are, therefore, of opinion, that either as at common law, or in eqüity ; with or without the statute ; this award cannot, be set aside for mistake of law, apparent in the body or face of the award.

As to the fact, it is true, the arbitrators having certainly decided upon the merits of the claims, and given a certain standard to ascertain the quantity of interference, did suppose, that the claims, were already surveyed, in conformity to their opinion ; and the principles upon, which the surveys had been made, were in strict conformity with those of the award; but a surplus,.for want of accuracy in the adineasurment, existed ; this being a mistake, not in principle, but in a mere detail of a settled principle, was properly corrected, by the court; and especially, as the arbitrators had directed a survey, to ascertain the metes and bounds of the land to'be conveyed.

Some objection was made, that the quantity of estate to be conveyed by Bakt r, was not certainly ascertained. The arbitrators direct it to be done by deed, “ with especial warranty, against himself and those claiming under him and they had previously determined, that Crockett had the better equitable claim Either of these circumstances, combined with a view of the nature of the reference, must be sufficient, to a common intent, to ascertain what is to be the nature and extent of the conveyance.

^ósáy that the árbitr&rXmiist, in all cáééá, chalk out ⅜? précise method and form ⅛ WÍdcli íhéir áWárd ⅛ to ⅛ executed by the parties, is to make the riilé toó nice, and to sacrifice suhstáhcé tO foím.

As to; the objection, that Baker died before thé fíhál decree, and that his heirs were not bound by the award, thére is nb weight ih it. Thé J>árt!fés Wére bound by the award, áftér it was made the interlocutory decreé of thé court, ás nñúch as by any other interlocutory decreé ; Baker himself, as appears by the récord, was then alive ; waived cerfáih objections as to the fifteen days réqrtired by law before the return of the award, ⅛.; the Subsequent death Of Baker, did not dissolve á potVer formerly given, and actually executed in his lifetime. The death of the principal, would hot avoid a sale (or other Execution of á power) previously mádé, and reduced to Writing by an agent, barely because the principal had not made a deed according to thé covenant.

As fiákfef was boiihd by the award, it was jiropfer to, déCréé against his heirs, after his death; thé manner in which it was revived against theirt, yeas not bbjectéd to below, and té not how assighed for error.

Decréé affirmed. 
      
      (a) Ante 318.
     
      
      (a) Acts of brad. 58. (a) Aits of 1 (⅛⅜ 1798, ch.
     