vides that the offer, when so made, shall be deemed to have given to the prosecution a right to cross-examine him upon all the facts to which he has testified, tending to his conviction or acquittal. The question, therefore, is, how far he subjects himself to cross-examination under that statute. It is very likely that, if the statute contained no limitation as to the extent of the cross-examination of a defendant in such a case, he would occupy the same footing of any other witness, if he chose to take the stand; although some of the decisions from the States in which no limitation is imposed upon the cross-examination hold that the cross-examination of the defendant in such a case should not then be allowed the same latitude permitted in crossexamination of a party not a defendant. The ground of the distinction was an apprehension that the defendant in such case might be convicted of one offense upon his admission that he had committed others." It seems to me that this distinction is very properly made, conceding that an ordinary witness may be interrogated upon his cross-examination as to whether he has not committed other offenses that cannot affect him beyond his credit in the particular case, unless it expose him to prosecution, and then he can claim his privilege. But as regards the party accused, such examination operates as a twoedged sword; it would not only impair his credit as a witness, but create a strong prejudice in the minds of the jury against him. Unless, therefore, a defendant in a criminal prosecution is 'pure as the icicle which hangs on Dian's temple,' he had better keep off the witness-stand if the prosecution is at liberty to ransack his past life. Place a person on trial upon a criminal charge and allow the prosecution to show by him that he has before been implicated in similar affairs -no matter what explanation of them he attempts to make—it will be more damaging evidence against him and conduce more to his conviction than direct testimony of his guilt in the particular case. Every lawyer who has had any particular experience in criminal trials knows this; knows that juries are inclined to act from impulse and to convict parties accused upon general principles. An ordinary juror is not liable to care about such a party's guilt or innocence in the parPeople v. Brown, 72 N. Y. 571.

ticular case if they think him a scapegrace or vagabond."

And in Clarke v. State 10 the court say: "If it were conceded that when a person is undergoing examination who occupies only the relation of a witness, inquiries may be made into past transactions, accusations of crime, and arrests and imprisonment for alleged offenses, as affecting his credibility (to what extent such inquiries may go, we do not decide) the question presents a different phase when such inquiries are made of a defendant, though availing himself of the privilege of the statute, and at his own request becoming a witness. When there is only the relation of a witness the defendant may not be affected other than as the credibility of one of his witnesses may be impaired; but when the accused is himself the witness, not only may his credibility as a witness be affected, but his conviction be obtained on his real or supposed guilt of other and distinct offenses, when the evidence, otherwise, is in itself insufficient. To avoid such injustice, and to secure to the defendant a fair and impartial trial in the sense guaranteed by the law, the waiver of the constitutional immunity from compulsory self-crimination should not be extended beyond the facts which may be testified to by other witnesses, or which may be relevant to the issue or may tend to elucidate it. Within these limits the fullest cross-examination should be allowed; but its range into inquiries respecting past transactions and offenses, separate and distinct, is prohibited by the constitutional inhibition."

The doctrine announced in the two cases from which extracts have been taken is fully sustained by the authorities referred to in note.11

The courts of several States have held that when the defendant in a criminal action vol

untarily offers himself as a witness on his trial, he subjects himself to the same liability of a rigid cross-examination as an ordinary witness.1 12

10 8 Crim. Law Mag. 19.

11 State v. Huff, 11 Nev. 26; Gale v. People, 26 Mich. 159; State v. McGraw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. McLaughlin, 76 Mo. 321; State v. Carson, 66 Me. 116; State v. Lurch, 12 Oreg. 102; Peo. ple v. O'Brien, 66 Cal. 602; 6 Pac. Rep. 695; State v. Grant, 79 Mo. 113; State v. Buella, 1 S. W. Rep. 764.

12 State v. Witham, 72 Me. 531; Brandon v. People,

But these authorities seem utterly to ignore the distinction between an ordinary witness and a party as a witness, and the difference in the effect of the evidence elicited upon the minds of the jury and the result of the trial; they fail to realize that while in the one case only the credibility of the witness is to be affected, in the other, not only the credibility of the party as a witness is affected, but that such testimony is liable to have greater weight with the jury against the accused and to work him more serious injury on his trial than almost any direct and positive evidence of his connection with the offense for which he is being tried, could possibly effect.

I think, therefore, that the courts of Oregon, California, Nevada, Michigan, Missouri and Alabama have adopted the more liberal, enlightened and humane view of the law on this vexed question; and on trial of defendants, in those jurisdictions, equal and impartial justice will be the more readily administered; at any rate, the accused will not be convicted on general principles and because he is a notoriously bad character, but solely on evidence pertinent to the issue.

42 N. Y. 265; State v. Ober, 52 N. H. 459; State v. Fay, 43 Iowa, 651; Town of Norfolk v. Gaylord, 28 Conn. 309; Boyle v. State, 5 N. E. Rep. 206; Hanoff v. State, 41 Am. Rep. 496; Yanke v. State, 51 Wis. 464.

1. Arbitration and Award-Presumption of Fairness.-The presumption is that an award is fair until the contrary is clearly shown; and where a lessee covenanted to make certain improvements and to pay taxes and rent, the amount of the latter to be fixed by arbitration at certain intervals, an award, fixing the amount at less than had been agreed upon and paid for a former term, although the value of the land had increased in the meantime, the taxes having also increased, does not show such unfairness, partiality or misconduct as to justify setting it aside.

2. Same-Choice of Arbitrator by Lot-Waiver of Objections.-Where two arbitrators choose a third by lot, under a submission giving them the right to choose a third arbitrator, and the parties with full knowledge thereof submit the matter in dispute to them, without objection, the award will not be set aside on account of such choice.

3. Same-Qualification of Arbitrator— Expression

of Opinion-Bias.-The mere expression of an opinion on a matter by one to whom it is long afterward submitted for arbitration will not disqualify him, where no bias or unfairness appears at the time of the submission or in the award.

LONG, J., delivered the opinion of the court: On November 23, 1861, Edmund A. Brush, deceased, executed to the defendant Aaron C. Fisher a lease for five years, at $200 a year, of lots 8 and 9, in block 10 of the brush subdivison of part of park lots 17 and 18, on the east side of Woodward avenue, in the city of Detroit. The lots have a frontage on Woodward avenue of 100 feet, and are 200 feet deep, and are on the corner of Woodward avenue and Erskine street. Mr. Fisher, in addition to the payment of the rent, agreed within two years to erect a brick building suitable for a dwelling, at least two stories high, and equal to 25 feet front and 36 feet deep on the two lots leased, 50 feet back from the front of the lots, and erect no building within 20 feet of Erskine street. He further agreed to pay all taxes and assessments levied against the property during said term. Among other provisions, the lease contained the following: "And it is further covenanted by and between the parties hereto that, at the expiration of said term of five years, the party of the first part, his executors, administrators, or assigns, shall have the right, in his or their election, to purchase and take of and from the party of the second part, his executors, administrators, or assigns, the buildings and improvements erected by him or them, or being on said premises, at a valuation thereof, not to exceed twenty thousand dollars, to be made by three disinterested persons, to be chosen one by each party, and, upon such purchase to re-enter upon said premises, and the same to have again as in their former estate and right. If the party of the first part, his executors, administrators, or assigns, elect not to make such purchase, then this lease, at the then rental value of the premises, to be determined by a reference in the manner above set forth, and upon the other terms and conditions above set forth, shall stand continued for another term of five years." "And, in a like manner, at every expiration of every succeeding term of five years, the same election as above reserved by the party of the first part, his executors, administrators, and assigns, shall be had; and if the buildings and improvements, as above limited, are not purchased and taken, then this lease, at the then rental value, to be determined as above described, and upon the other terms and conditions above set forth, shall stand continued for another term of five years." Mr. Fisher entered into possession of the lots under this lease, and erected a first-class dwelling-house thereon, with a barn and other improvements, the whole expense of which buildings and improvements was between $23,000 and $24,000, and which he now values at $20,000. These premises Mr. Fisher uses solely for a residence, and claims to have built the same for a family residence and homestead, and not as an investment for capital.

The first term of five years under this lease expired January 1, 1877. The annual rental was fixed, by the mutual agreement of the parties, for the second term of five years, at the same amount as for the first term, viz., $200. At the expiration of the second term of five years, the annual rent was fixed by the mutual agreement of the parties, for the third term, at $300 per year, and the same was indorsed on the lease. At the expiration of the third term of five years, the parties were unable to agree on the amount of the annual rental for the fourth term, and the parties submitted to have the same fixed by arbitrators as provided in the lease. The complainants, who are trustees of the estate of Edmund A. Brush, deceased, appointed Edward J. Stimson as one arbitrator, and defendant Fisher appointed Mr. Alanson Sheley the other. The arbitrators not being able to agree on the rental value of the premises, or on the third arbitrator, they finally selected as third arbitrator Mr. Alvah E. Leavitt by lot. After hearing the parties, Mr. Sheley and Mr. Leavitt agreed upon an award fixing the rental of the premises for the fourth term at an annual rental of $200. Mr. Stimson did not join in this award, or agree to its terms. The bill is filed in this cause in the circuit court for the county of Wayne, in chancery, to set aside and vacate this award. On the hearing in the court below the award was set aside, and vacated and held for naught, with costs against defendant Fisher, who brings the case into this court by appeal from such final deeree.

It was said by this court in Railway Co. v. Callanan, 61 Mich. 26, 34 N. W. Rep. 678, that "there is power in a court of equity to relieve against awards in some cases where there has been fraud and misconduct in the arbitrators, or they have acted under some manifest mistake, and, perhaps, under some defined and undefined cases. But it is evident that there are great objections to any general interference by courts with awards. They are made by a tribunal of the parties' own selection, who are usually, at least, expected to act on their own view of law and testimony more freely and less technically than courts and regular juries.

They are also generally expected to frame their decisions on broad views of justice, which may sometimes deviate from the strict rules of law. It is not expected that, after resorting to such private tribunals, either party may repudiate their action, and fall back on the courts. And equity, on whatever pretext it may intervene in such cases, does so upon the reason that the tribunal has not acted within the lines of the duty laid upon it, and has not in fact carried out the agreement under which it has obtained authority to proceed." It is charged in this case that the arbitrators chosen were guilty of undue partiality and misconduct, and that their award was properly set aside by the court below; and counsel for complainant bases his argument in support of these charges upon the fact, principally, that the parties to the lease fixed the rent in 1871 at $200,

and in 1882 at $300, a year; while in 1887 the arbitrators fix the amount of the annual rental at $200, the same as fixed by the parties in 1871, though it is claimed the property for the last 15 years has greatly increased in value, and become more desirable for residence property. This increase in value is admitted by defendant Fisher. The assessed value of the lots has increased, from $1,800 in 1871, to $17,500 in 1887. It is claimed on the part of defendants, and defendants Sheley and Leavitt, two of the arbitrators, testify, that because of the increased value the taxes had increased, and that the rental should be reduced, instead, of increased. It is therefore claimed by complainant (1) that the lease, the contract between the parties, very clearly contemplates that if the lots increase in value for residence purposes the ground-rent is to be increased, and if they decrease in value the ground-rent is to be decreased, and that is what the contract means; (2) that any award made upon the theory that an increase in the value of the property necessitates and justifies a reduction in the ground-rent is a violation of the contract between the parties, and that these arbitrators, in making such an award, have not acted within the lines of duty laid upon them, and have not carried out the agreement under which they obtained authority to proceed. Courts, however, favor awards made by tribunal of the parties' own choosing, and are reluctant to set them aside, and every presumption will be made in favor of the fairness, and the burden of proof is upon the party seeking to set it aside, and the proof must be clear and strong. Morgan v. Mather, 2 Ves. Jr. 15; Herrick v. Blair, 1 Johns. Ch. 101; Davy v. Faw, 7 Cranch. 171; Van Cortlandt v. Underhill, 17 Johns. 411; Morse, Arb. 531, 544.

It appears from the assessment rolls put in evideuce in the case in the court below, and from the testimony taken in the case, that up to 1875 assessments were made upon the basis of 30 per cent. of the cash value of the property. In 1876 the system was changed, and a cash valuation substituted. The assessment at 30 per cent., in 1872, of $2,700, would make the cash valuation at that time of $9,000. In 1876, the last year of the first term, the assessment was $13,325. In 1881, the last year of the second term, it was assessed at $13,500. In 1886, the last year of the third term, it was assessed at $14,300. In 1887 the assessment was $17,500. Before the arbitrators it was conceded that the property was worth $25,000. It appears, also, that, while the property was rapidly increasing in value-over 100 per cent. in 16 years—the taxes were also rapidly increasing in amount from year to year. The average of general taxes for the first term of five years was $213.10. The average tax for the next term of five years was $282.54 per annum. The average tax for the third term of five years was $386.96, making the tax for the third term almost double the first term. The tax for 1887 is still greater, being $451.39. In addition to these regular taxes,

there were special taxes and assessments paid by the lessee; at the time of making the lease, $500 for paving tax; in 1874, also, a paving tax of $436.84; in 1882 another paving tax of $195. Besides these, there were other taxes for sewers, sidewalks, etc., the amount of which is not given. It also appeared that preparations were being made to pave Erskine street, during the year 1887, at an expense of from five to six hundred dollars. These improvements, and the increase of the property, inure to the benefit of the lessor, while it has increased the rental by taxation. The lease is a somewhat peculiar one. It is a perpetual lease, so far as the lessee is concerned. He bas no right to avoid it or give it up; but it is not perpetual upon the part of the lessor. He is at liberty, at the expiration of any term of five years, to set aside the lease, and take the property into possession, if he should see fit to do so, upon the terms therein named, viz., of paying the then value of the improvements under the limitations of the lease. The lessee was bound to erect a building, as hereinbefore stated, and was not only to pay the rental, but to "bear, pay, and discharge all taxes and assessments, whatsoever laid, assessed, or becoming payable during said term on said premises." He could not let, transfer, or assign said premises, or any part thereof, or any interest therein, without the written consent of the lessor; and if the lessor elect, at the expiration of any five years' term, to take back said property, he is to purchase the buildings and improvements erected and being on said premises at a valuation thereof, not to exceed $20,000, to be fixed by disinterested persons. If the lessor does not elect to make such purchase, the rental value for another term of five years is to be determined by a reference if the parties do not agree, and so on at the end of of every five years. There is an express condition in the lease that if the rent, taxes, or assessment shall not be paid when the same is due and payable, or if the lessee should not observe, keep, and perform all the covenants and conditions of the lease, everything in the lease to be performed by the lessor shall cease, determine, and be utterly void, anything therein to the contrary notwithstanding; and the lessee covenants in such case, at the determination of said lease, under these provisions, that he will peaceably and quietly surrender and yield up said premises; and the lessee agrees to waive any and all notice or notices which may be required by law to be given to him by the lessor in the event of any default being made on his part of the demand of possession and of said premises. Uudubtedly, the arbitrators, in fixing the rental value of the premises, took into consideration many if not all the considerations herein mentioned, and upon the whole case thus submitted fixed the rental at $200 per annum, aud we are not prepared to say that the value fixed by them, under the circumstances, is any evidence of undue partiality, and we see in it no evidence of any misconduct on the part of the arbitrators; but it

would seem that these stringent provisions in the lease would have some effect upon the rental value. There is no charge in the bill that the arbitrators committed any error of fact or law in fixing the rental value of the premises, or that the sum fixed was an unreasonably low one; and, had there been, it would have been no ground for setting aside the award that the arbitrators had committed an error of fact or law, unless the error was so gross as of itself to furnish clear proof of corruption and fraud. Morse, Arb. 293, 298; Water-power Co. v. Gray, 6 Metc. 131; Burchell v. Marsh, 17 How. 344; Anderson v. Taylor, 41 Ga. 10; Lester v. Callaway, 73 Ga. 731; Kirten v. Spears, 44 Ark. 166; Railroad Co. v. Myers, 18 How. 246; Winship v. Jewett, 1 Barb. Ch. 173; Perkins v. Giles, 53 Barb. 342; Van Cortlandt v. Underhill, 17 Johns. 405.

It appears that the third arbitrator, when the two chosen by the parties were unable to agree, was chosen by lot, and it is claimed by the complainant that this was not a competent way of making choice; that the lease contemplates that the third arbitrator will be chosen by an exercise of judgment by the first two arbitrators—that is, by a comparison of views, and an adjustment of differences. And counsel cites in support of this proposition, In re Cassell, 9 Barn. & C. 624; Ford v. Jones, 3 Barn. & Adol. 248; In re Greenwood, 9 Adol. & E. 699. It appears, however, that Mr. Thompson, one of the trustees of the Brush estate, assented to the selection, and that the parties, with full knowledge of the manner in which the choice was made, submitted their case, and made no objection to the arbitrator until the award was made by them. If the parties had a right to object to this mode of making a choice, they must be held to have waived it by their conduct in proceeding to a hearing knowing the fact. 2 Pars. Cont. 707; Morse, Arb. 242; Neale v. Ledger, 16 East, 51; In re Tunno, 5 Barn. & A. 494.

It is also contended by complainant that Mr. Sheley had formed an opinion as to the rental value of the premises before the time of his being appointed an arbitrator, and that such preconceived opinion is a sufficient reason for avoiding this award, inasmuch as the complainants were not aware of such bias at the time of submitting the case. It appeared, upon Mr. Sheley's examination in the present case, that he told Fisher, when be consented with Mr. Brush to put the rent up to $300, that he did not understand his own interest. Mr. Sheley was further interrogated by complainants' counsel upon that subject as follows: "Question. Did you think that he understood his own interest when he entered into the lease? Answer. No; I did not think he did then. Q. And that controlled you in making this adjustment? A. I think he made a mistake when he entered into the lease. Q. And now, Mr. Sheley, that view of it influenced you in arriving at what he ought to pay? A. I do not khow that it does." It appears that this opinion was expressed by Mr. Sheley five years before the time

of his acting as arbitrator, and at the time when the third term of five years commenced on the lease. There is no showing upon this record that Mr. Sheley had such an opinion, at the time of his acting as arbitrator, that in any manner influenced his judgment; and it is expected of arbitrators that they will frame their decision of matters submitted to them on broad views of justice, which may sometimes deviate from the strict rules of law, and there is nothing in the whole record indicating that Mr. Sheley or Mr. Leavitt did not act in the utmost good faith in the discharge of the duty assumed by taem as such arbitrators. "It is a well settled rule in equity," says Senator Allen in Van Cortlandt v. Underhill, supra, “that an award of arbitrators of the parties' own choosing, unless outrageously excessive on the face of it, and such as would induce every honest man at first blush to cry out against it, cannot be set aside, unless there be corruption, partiality, misconduct, or the use of an excess of power in the arbitrators, or fraud upon the opposite party." We have carefully read this record, and are unable to find any testimony showing, or tending to show, that these arbitrators were guilty of corruption, partiality, misconduct, or any other act which would warrant a court in setting aside their award. The office of arbitrator is one voluntarily assumed, and is many times a thankless task, and parties often feel aggrieved at their findings. Charges of corruptiou, fraud, partiality, and misconduct are easily made. The burden of proving these charges, however, rests upon the party making them. Every presumption will be made in favor of fairness; and courts of equity, even, will not set aside an award for reasons based upon such charges, unless the proof is made clear and strong. We find no proof in this case even tending to establish these charges.

The decree of the court below must be reversed and set aside, and decree entered in this court dismissing complainant's bill, with costs of both courts.

NOTE. As a general rule, any person whom the parties select may be an arbitrator, for no one can afterward complain of the manifest deficiencies of those whom he has himself selected to be his judges. Any one, however, who occupies the position of a judge, should be disinterested and unbiased, and this is true of an arbitrator. Where facts exist which are likely to influence him in favor of one of the parties or against one of them, such as relationship, interest, or prejudice, he will be incompetent as to one injured thereby, to whom such incompetency is unknown.2 But if the interest be remote or trifling and not likely to influence the decision of the arbitrator, the courts will not set aside the award on account of such interest.3 Mere indebtedness of an arbitrator to one of

1 Morse on Arb. 99; Evans v. Ives, 15 Phila. (Penn.) 635; Dickinson v. Railroad, 7 W. Va. 390.

Pool v. Hennessey, 39 Iowa, 12; s. C., 18 Am. Rep. 44; Bowen v. Steere, 6 R. I. 251; Beatty v. Hilliard, 55 N. H. 428; Earl v. Stocker, 2 Vern. 251; Fox v. Hazelton, 10 Pick. 275; Morse on Arb. 100.

3 Leominster v. Fitchburg, etc. R. Co., 7 Allen, 38; Che. ney v. Martin, 127 Mass. 304.

the parties has been held not to constitute a ground of disqualification. So mere indebtedness of one of the parties to the arbitrator, who can get no advantage by the award will not necessarily disqualify him, although it would be otherwise if the arbitrator's chances of payment were thereby increased. And an award will not be set aside merely because an arbitrator had before acted as counsel for one of the parties in another action. Nor will mere conversation of the arbitrators with others, or even with the parties, respecting the subject of the arbitration necessarily require the setting aside of the award."

On the other hand, family relationship between the arbitrator and one of the parties, unknown at the time to such party and duly objected to when ascertained, will be sufficient to disqualify.8 So, where the arbitrator is a partner of one of the parties, and this fact is concealed from him. And partnership or prejudice has been held sufficient to disqualify an arbitrator.10 It has also been held improper for an arbitrator to accept hospitality from either of the parties, and where this was extended for the purpose and had the effect of inducing the arbitrator to act unfairly, his award was set aside.11

If facts that might otherwise disqualify the arbitrator are known to both parties at the time of his selection and no objection is made, they will be deemed to have waived all objections on account of such disqualification.12 And knowledge of a party's attorney has been held to be the knowledge of the party himself.13 The objection should be made at the earliest opportunity,14 even at the trial before the arbitrators themselves.15

Fraud, undue partiality, or wilful misconduct of the arbitrators, may justify and even require the setting aside of their award; 16 and in a recent case an award was set aside because one of the arbitrators after his appointment had conversed fully upon the merits of the matter in dispute with a former arbi

4 Chicago, etc. R. Co. v. Hughes, 28 Mich. 186; Morgan v. Morgan, 1 Dowl. 611.

5 Wallis v. Carpenter, 13 Allen, 19; Fisher v. Towner, 14 Conn. 26. An extraordinarily large award to an insolvent, who was indebted to an arbitrator, to whom it was immediately assigned, was set aside by the New Hampshire court in an early case: Rand v. Redington, 13 N. H. 72. See also Woodworth v. McGovern, 52 Vt. 318. 6 Goodrich v. Hulbert, 123 Mass. 190; s. C., 25 Am. Rep. 60.

7 Flatter v. McDermitt, 25 Ind. 326; Shear v. Morher, 8 Ill. App. 119. But compare Catelett v. Dougherty, 114 Ill. 568, where the purpose was evil.

8 Pool v. Hennessey, 39 Iowa, 192; s. C., 18 Am. Rep. 44; Brown v. Leavitt, 26 Me. 251. See also Stephenson v. Oatman, 3 Lea (Tenn.), 462.

9 Connor v. Simpson, 7 Atl. Rep. (Penn.) 161.

10 Wheeling Gas Co. v. Wheeling, 5 W. Va. 448. But see, where there was no imputation of unfairness, Graves v. Fisher, 5 Me. 69; s. c., 17 Am. Dec. 203. Com. pare also Morville v. Am. Tract Soc., 123 Mass. 129; 8. C., 25 Am. Rep 40.

11 In re Hopper, 8 B. & S. 100. See also Noyes v. Gould, 57 N. H. 20.

12 Strong v. Strong, 9 Cush. 560; Hicks v. McDonnell, 99 Mass. 459; Davis v. Forshee, 34 Ala. 107; Etna Ins. Co. v. Stevens, 48 Ill. 31; Bash v. Christian, 77 Ind. 290.

13 Perry v. Moore, 2 E. D. Smith (N. Y.), 32.

14 Combs v. Wyckoff, 1 Caines (N. Y.), 147; Fox v. Hazelton, 10 Pick. 275; Robb v. Brachman, 38 Ohio St. 423. 15 Cones v. Vanosdol, 4 Ind. 248.

16 Smith v. Smith, 28 Ill. 56; Sullivan v. Frink, 3 Iowa, 68; Spear v. Bidwell, 44 Pa. St. 23; Hyerominues v. Allison, 52 Mo. 102; Beane v. Macomber, 33 Mich. 127; Cleland v. Hedley, 5 R. I. 163.