
    Shermer v. Beale.
    April Term, 1791.
    Awards — Setting; Aside — Reasons.—Reasons for setting aside awards, are either for some illegality, or injustice, apparent on the face of them, or for misbehaviour in the arbitrators.
    Same — Same—Arbitrators Parties — Demurrer.—If the arbitrators be made parties to a suit for setting aside their award, they may demur to the bill.
    The appellant having filed a bill in the High Court of Chancery against the appellee praying an account, an order was made by consent of parties, referring all matters in difference between them to the final determination of two arbitrators, indifferently chosen by them, and, in case of their disagreement, to such umpire as they should chuse, who are to proceed to determine the same, in conformity to bonds entered into by the parties on the 6th day May 1788.
    The bond referred to, submits all suits, actions, litigations, and controversies to the final determination of the two arbitrators named in the above order, whose award was not to be mad'e before the 1st of December following, that the parties might have time to procure their testimony. It stipulates that the above suit in chancery should, by a rule of Court be referred to the same arbitrators, to be proceeded in and determined according to the principles of this agreement; that all other suits depending in other Courts should also be referred to the same arbitrators ; the arbitrators to name an umpire in case of their disagreement; the award or umpirage to be made the judgment or decree of the respective courts as far as they are applicable to the respective cases; they to be final, and no advantage to be taken of any informality of defect in the rules of reference, award, decree or judgment, nor an appeal to be prayed, or writ of error applied for, to such decree and judgment. The bond then proceeds to lay down certain rules and principles by which the reference is to be conducted, and stipulates that Shermer is to receive, in satisfaction of any sum which might 'x'be awarded him, bonds or judgments if decided to be good, by the arbitrators, but to be guaranteed by Beale. The award to be made in writing, ready to be delivered on or before the 1st of June 1789.
    Upon this bond was endorsed an agreement signed by the parties, bearing date the 30th of May 1789, authorising the arbitrators by endorsement on the above bond, to appoint any person they might chuse to assist them in forming and making up the award, such person to be paid by the parties for his trouble ; the award to be ready to be delivered by the 20th of June 1789, and to have the same effect, and be entered up in Court in the same manner, as if it were made and delivered by the two arbitrators, on or before the day for that purpose appointed. The parties then bind themselves in the penalty of ^10,000, each, to the other, to abide by this agreement, which is not to change or alter the bond in any respect, except as is therein expressed.
    
      An endorsement, bearing date the 30th of May 1789, is made upon the bond by the two arbitrators, appointing a third person to unite with them, or one of them, in forming and making up the award.
    An award was made and returned, signed by the three arbitrators, by which they award to the plaintiff ^3022 to be paid con-formably with the agreement in the conditions of the bonds respectively set forth ; and further, that the defendant in 3 months from the date thereof give bond wilh good security to the plaintiff, to indemnify him against two bills of exchange for ,£600 sterling each, endorsed by the said plaintiff. And on the defendant’s complying with this award, each party to execute to the other a release of and concerning all matters and things by the said order referred to the arbitrators : — the defendant to pay the costs of this suit.
    On the motion of the plaintiff to enter up the award and bond as the decree of the High Court of Chancery, the judge of that Court refused to admit the affidavit of the defendant, stating certain exceptions to the award and umpirage, to be entered as part of the proceedings in the cause, and ordered the bonds of submission, with the endorsements thereon, and the award and umpirage to be registered. But the Court refused to make an absolute decree in the terms, or according to the tenor, of the award and um-pirage, lest the defendant might possibly be precluded from availing himself of any exception not appearing on the face of the award and umpirage, to which it might be liable.
    *It was therefore decreed and ordered, “that the defendant do perform the said award and umpirage, unless cause be shewn against it by the succeeding term.”
    Beale then filed a bill, making Shermer and the arbitrators parties, stating various objections to the justice and propriety of the award, and charging one of the arbitrators with partiality.
    To this bill Shermer filed his answer, denying all the allegations in the bill: no replication was filed to this answer, nor did the arbitrators answer the bill. At the term succeeding at that which the interlocutory order before mentioned was made, Beale shewed cause against a final decree being entered up, “insisting that the Court’s authority to make the said decree must be derived, either from the submission of the 6th May 1788, or that of the 30th of May 1789: that no such authority was derived from the former, because, though it was made a rule of Court, yet the award and umpirage was not made within the time limited by it: nor from the latter, because it was not made a rule of Court.” The chancellor being satisfied with the cause shewn, set -aside the former order and decree, from which Shermer appealed.
    
      
      Awards — Setting Aside — Mistake.—On this question the principal case is cited in foot-note to City of Portsmouth v. Norfolk County, 31 Gratt. 727; Kincaid v. Cuningham, 2 Munf. 1. See Pleasants v. Ross, 1 Wash. 158; also, monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 681.
      Bonds — Endorsement Considered Part of Bond. — As to when an endorsement will be considered as part of a bond the principal case is cited in Price v. Kyle, 9 Gratt. 250, 251, and foot-note-, Manlove v. Thrift, 5 Munf. 494; Eib v. Pindall, 5 Leigh 117 ; Stone v. Hansbrough, 5 Leigh 424 : Smith v. Spiller, 10 Gratt. 322 ; Carter v. Noland, 86 Va. 571, 10 S. E. Rep. 605 ; State v. Rawson, 25 W. Va. 31; Calwell v. Caperton, 27 W. Va. 412, 415. See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   The PRESIDENT

delivered the opinion of the Court.

Submissions were made rules of court, by consent, at common law, before the statute. Sid. 54. T. Ray. 35. and afterwards under the statute of 9 & 10 William III.

It seems to have been practiced on bonds of submission with condition that the submission should be made a rule of court, either to proceed to the award, and to have that entered as the judgment of the court, or to have the rule previously entered. The former was the case in Baily & Chesely 1 Salk. 72. Since, on deciding the question about consent, the award, not the submission, was made the rule of the court.

Under the authority of this case, (the in-dorsement being considered as evidence of consent that the award should be made the judgment of the court,) the award might have been confirmed without a previous rule of submission.

In 2 Atk. 501. New rules of court were made to enlarge the times, but this does not prove that they were necessary. The court of chancery in England is always open, and it might have been a more convenient practice, than to enter into new agreements to extend the time.

*The indorsement is to be considered as incorporated with, and part of the condition of the bond, so as to constitute one entire agreement, and to be taken by relation to the date of the bond, so as to bring it within the original rule. In this view of the case, the Chancellor erred in his decision upon the cause shewn, on the ground which he took.

We have examined this voluminous record, to see if there be any other ground more tenable. Reasons for obstructing or setting aside awards, according to the best construction of the statutes, are either for some illegality or injustice apparent on the face of them, or for misbehaviour in the arbitrators. Every argument, derived from the spirit of the statutes of Jeofails in favor of judgments, applies with increased force in favor of awards, since the judges in the latter case are of the parties own chusing.

The bill filed in this case, shewing cause against the award, not only goes over the tVhole subject of dispute, referring to former bills, answers and accounts, but contains a libel against one of the arbitrators, and all of them are made defendants.

This is a strange proceeding, first to chuse judges to decide a dispute, and then to make them defendants to a suit, in order to demand of them the reasons of their decision. The arbitrators might have demurred to the bill, not being obliged to answer.

The defendant Shermer has fully denied all the charges in the bill, and has done away the ground of suspicion (for it was only suspicion) of a partial attachment to him, in one of the arbitrators.

The causes therefore being fully done away in the mode chosen by the appellee, (like the case of an injunction which in such a case would have been dissolved,) there appears no reason to obstruct the decree directing the award to be performed.

Decree reversed with costs.  