
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Small v. Courtney & Smith.
    Tf the parties to an arbitration have not had reasonable notice of the appointment of an umpire, or of his proceeding to make up his umpirage» bo that they might have applied to him to examine the witnesses and proofs of the parties, and not found his judgment upon the report of the arbitrators, his award will be set aside.
    Motion to set aside an umpirage on behalf of the defendants. This cause being on the docket for trial in Charleston district, was referred to arbitration. On the last day of the term a rule was moved for and granted, on the arbitrators, to shew cause immedi•ately, why they had not made and returned their award. One of the arbitrators attended, and shewed cause, by representing, verbally, to the court, the difficulties they had to surmount before they could come to a final determination ; and that the matters in •difference between the parties being intricate, could not be fully investigated in time to make up and return an award during the term. To this representation the court, Grimke, J., signified, that if the arbitrators could not agree, they ought to appoint an umpire ; and that an award, or umpirage, was required forthwith. Whereupon the arbitrators immediately chose an umpire, who, without giving the defendants any notice of his appointment, or to attend him on the matters referred, made up, and returned his umpirage directly.
    On a rule to shew cause why the umpirage should not be made final, .the affidavit of one of the arbitrators was offered, to prove that he was under an impression, that the court would fine or imprison him for contempt, in case he had refused, or neglected, to return an award, or choose an umpire, directly, as the court required ; but this affidavit was rejected as improper evidence to impeach the umpirage. The affidavits of fhe defendants were, also offered, and rejected. The substance of these went to shew that, they had no notice to attend the umpire on the matters referred, ail<i bad no opportunity of laying their evidence before him.
    The counsel for the defendadts argued in behalf of the motion submitted to this court, that the judge of the district court had ex? crcised an- authority not warranted hy law, or, at least, had ex. tended his authority beyond its legal limits, when he ruled the ar? bitrators to shew cause why they had not made and returned their award ; and afterwards arbitrarily directed them, either to do so af once, or choose an umpire. That the affidavits offered to the district court, in shewing cause wljy the umpirage should not be made final, ought to have been admitted, as the best evidence the nature of the case admitted of.
    That the hackneyed phrase of arbitrators being judges of the parties choosing, contains no satisfactory reason against enquiring into the circumstances and grounds of their decision ; and no good reason can be given why such an enquiry should be precluded, if necessary to the administration of justice between the parties : and if the decisions of arbitrators may be re-examined and' corrected, there can be no impropriety in admitting their evidence, unless the point to be investigated should relate to some turpis causa, laid to their charge. Such evidence is admitted in the- English courts. 1 Atk. 77. 4 T. R. 147. Ambl. 245. 2 Vern. 380. Kyd on Awards, 236.
    The same doctrine applies with as much force in the courts of law as in equity. If rejected, it would tend to discouráge this convenient mode of settling controversies. Judgments recovered in the common course of judicial proceedings have been set aside¡ in this court upon the affidavits of defendants, that they were not served with legal process, and had no notice : therefore a fortiori, the affidavits of the defendants in this case-ought to have been received. If the affidavits were false, the deponents might be prose, cntecl for perjury. But it has been conceded, that no notice of the-appointment of an umpire was given to the defendants, but to their attorney in court, immediately before the umpirage was made and returned ; and therefore they could not have had the benefit of any evidence, they might have had in their power, to lay before the umpire, to guide or assist him in making up a just, umpirage in the case, The parties ought to have notice of the meeting of. the arbitratorSj ©r umpire. Kyd on Awards, 63. 3 P. Wins. 362 — 3. 2 Vern. 514., 515. And want of such notice, is good cause to set the award, or umpirage, aside. The court has no power to compel arbitrator^» lo make an award. Kyd on Awards, 61, ef seq. By the Roman law, "the Prsetor might compel arbitrators to act, except sufficient reason was shewn to tho contrary ; but no such power is given by our law. The court may grant a rule on arbitrators,' to shew cause why they should not make and return their award; and on the parties, to shew cause why they should not attend the arbitrators, &c., where the submission is by rule ef court. Imp. Prac. 751. But when cause is shewn, the court has no power to attach them,' if the cause is deemed insufficient, or to compel them to do as required. Kyd on Awards, 100. The umpirage was made clandes. finely, and, therefore, ought not to stand. 1 Atk. 77..
    The counsel for the plaintiff argued, that on motions for new trials^ and in such cases as that before the court, if, upon the whole matter disclosed in argument,.it should be evident that no injustice has been done, though the judge or jury may have erred upon the trial, the court will not interpose to grant a new trial, or set aside an award. Therefore, in this- case, though it should be admitted the judge did improperly coerce the arbitrators, yet that coercion only operated to precipitate them in the choice of an umpire, and produced no injurious effect lo the defendants. Any irregularity in the conduct of the. umpire afterwards could not- be chargeable to the court on the ground of coercion used towards the arbitrators. After the arbitrators had made choice of an umpire, their power, as arbitrators, was at an end. Kyd 44, 77. Any thing, therefore, which could be alleged by them, relative to the compulsion, which induced them to choose the umpire, was irrelevant to impair or impeach the umpirage, which was the deteimination of another referree; who cannot be supposed at all influenced by any impressions of dread which operated on the minds of the arbitrators, seto have been unduly precipitated into a decision. It is certainly a-good rule, that as awards are made by judges of the parties- own selection, they- are to be favored ; and are not to be set aside, except for partiality, corruption, or other gross misconduct, of the arbitrators : and not for misconception, or mistake. They may b© witnesses of matters touching their own award, to set aside or confirm their own award, respecting matters laid before them. Kyd! on Awards, 138, 180.
    It was not necessary that the umpire should're-examine the-evidence, and decide ujion sueh examination ; but he may found his umpirage upon the report of the arbitrators, 4 T. R. 589: unless application should be made by the party to examine bis witnesses before the umpirage h wade a»d reformed,
    
      The arbitrators might have awarded for part, and the umpire for (.¡)e r8mainder, or the arbitrators for part, and the umpire for the whole. Utile per inutile non vitiatur. No matter what induced the appointment of the umpire, so he was appointed by die arbitrators, and has made and returned a regular umpirage, which is found to have done justice in the case. The plaintiff is a sea captain* and has his domicile in another State. It was, therefore, necessary to expedite the award. It was not material when the umpire was appointed, whether it was before or after the time limited for his appointment, provided it was before the time limited for him to make his umpirage.
    Desaussure and Griggs, for defendants. Pringle, Attorney General, for the plaintiff.
   By the Court.

It is not for this comt to say, from what ap. pears of this case, whether, upon the whole, justice has been done between the parties. After the arbitrators had chosen an umpire their authority expired, and that of the umpire began. As they made no award, whatever relates to the rule of court on them to .shew cause, and their impressions on that occasion ; and how far it might operate to produce a hasty and inconsiderate decision aa regards them, must be laid entirely out of view. The only question is, whether, or not, the parties had reasonable notice of the appointment of the umpire, or of his proceeding to make up his umpirage ; so as that they might have applied to him to examine the witnesses, or proofs of the parties, relative to the matters in dispute, in order that the umpire might found his judgment upon the evidence produced to him by the parties, and not upon the report of the arbitrators. Now, it does not appear that the defendants had such notice, or any opportunity to make such application. Therefore, for this reason, the award must be set aside, and the cause docketed for trial at next term.

Ordered accordingly.  