assignee v. Highley, G. C. June T. 1821, 2 Virg. Cas. 255; and see Pitts v. Carpenter, 2 Stra. 1191, 1 Wils. 19 S. C.; Gross v. Fisher, 3 Wils. 48; Heaward v. Hopkins, 2 Doug. 449, for the distinction between payments and set-offs. If the award contains nothing to shew the mode of reduction, or the real sum in controversy-how are the court to get at the fact? Can they examine the arbitrators? See Wise et al. v. The Columbia Turnpike Co. 7 Cranch, 276; and Duncan, J. in Kline v. Wood, 9 Serg. and Raw. 299, 301; and Neff v. Talbot, 1 Virg. Cas. 140.

No precise form of words is necessary to constitute an award; it is sufficient if the language be such as to shew clearly that the arbitrator has come to a decision on the points submitted to him. Matson v. Trower, 1 Ryan and M. 17. But there must be a decisive expression of opinion on the subject submitted. Lock v. Vullianey, 5 Barn. and Adolp. 600.

(d) The court in examining an award, ought not to consider itself an appellate tribunal, from the judgment of the arbitrators, and reverse the award, merely because it differs in opinion from them, on a doubtful question; but ought to place itself in the state of a court applied to, to grant a new trial, because the verdict is contrary to evidence; which ought to be granted only in case of plain deviation, and not in a doubt ful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers. Roane, J. delivering the opinion of the court, Ross v. Overton, 3 Call, 309, 319. And see Goodman v. Sayres, 2 Jacob and Walk. 249, 259.

Parties by submitting to arbitration, waive all objections to the want of legal forms, and are confined to considerations arising out of the award itself; such as partiality, corruption, ex parte proceedings, or a transcendancy of power. Leftwitch et ux. v. Stovall et al. 1 Wash. 303, 306.

Awards are to be favourably and liberally construed, and are not to be set aside, unless they certainly appear to be founded on illegal grounds. See Halcomb v. Flournoy, 2 Call, 433; and Hollingsworth v. Lupton et ux. 4 Munf. 114; Richardson v. Nourse, 3 Barn. and Ald. 237.

Reasons for setting aside awards, are, either for some illegality, or injustice apparent on their face, or for misbehaviour in the arbitrators. Shermer v. Beal, 1 Wash. 11, 14.

An award cannot be set aside, either in law or except for errors apparent on

its face, misconduct in the arbitrators, some palpable mistake or fraud in one of the parties. Head v. Muir et al. 3 Rand. 122; Smith and others v. Smith and others, 4 Rand. 95. When parties submit to arbitrators their rights involved in law and fact, they are understood to submit the facts to the arbitrators to be decided on according to law; and if it appears upon the face of the award that they grossly mistook the law, the award will be set aside. But where it appears, that the parties intended to submit the question of law alone, the decision of the arbitrators is binding, though contrary to law. Ib. 4 Rand. 101.

Submission to arbitrators of matters in difference in a suit pending; award professing to be made, and appearing to be in fact made, pursuant to the submission, but not stating expressly that the arbitration was confined to the matters in difference in the suit; and this award held good. Sutton v. Dickinson, 9 Leigh, 142.

In an action of assumpsit, the damages laid in writ are 300 dollars; the declaration is in blank as to the sums assumed and to the damages; all matters in difference in the cause are referred to arbitrators; the arbitrators award to the plaintiff 443 dollars; and judgment is given according to the award: Held, the award is good, though the amount awarded exceeds the damages claimed. Ib. S. C.

In delivering his opinion in the case of Goodman v. Sayres et al. 2 Jac. and Walk. 249, 259, the master of the rolls said: “I decide this case upon the principle that no bill in equity will lie to set aside an award, on a question of fact, within the province of the arbitrators, and decided by them. They are the judges chosen by the parties, and no court of law or equity has any cognizance of the matter, by way of appeal from their decision; the consequences of such a jurisdiction would be most mischievous, for the very definition of a good award is, that it gives dissatisfaction to both parties, and the result therefore would be, that applications of this kind would be continually made upon frivolous grounds. In letting in evidence of the merits, I never permitted it for the purpose of shewing what the merits were; and I consider it myself, only so far as it may tend to prove such a case of misconduct, on the part of the arbitrators, as would give this court jurisdiction." "Their decision must be final and conclusive, unless the plaintiff can fix upon them corruption, partiality, misconduct, or irregularity. The onus of proving that, lies on the objector."

Where matters of law and fact are referred to an arbitrator, his award is final and conclusive, and the court will not open it or set it aside, unless the principles on which he has decided be apparent on the face of the award. Payne v. Massey, 9 J. B. Moore, 666.

The court will not set aside an award on the ground that the arbitrator has come to a wrong conclusion on the facts, if there was any evidence to warrant his finding, though they may not think the arbitrator right in his conclusion. Barrett v. Wilson, 1 Cromp. Meeson & Roscoe, 586.

An arbitration bond was entered into, referring a certain subject in dispute to arbitrators, who were to make their award by a certain day, and if they should not agree, to an umpire chosen by them:-the arbitrators not agreeing, chose an umpire, who made his umpirage before the day limited, by which the arbitrators were to make their award. The umpirage was supported. Richards v. Brockenbrough's adm'r, 1 Rand. 449. In the case of Smails v. Wright, 3 Mau. & Selw. 559, (Feb. 1815,) it was adjudged by K. B. that a submission to two, so as they made their award on or before a certain day, but if they do not by the time aforesaid make their award, then to an umpire, provided he makes his award on or before a subsequent day;-justified the umpire in making his umpirage before the time allowed the arbitrators had expired, they having finally disagreed before that period.

In support of the principle of the cases of Welsh v. Barrett, and Nicholls v. Webb, ante, p. 213, note-see Halliday v. Martinet, 20 Johns. R. 168.

I was recently informed by a gentleman who was of counsel in the case of Ferguson v. Franklins, ante, p. 25, note, that the point stated by the reporter, as having been decided by the court--was not adjudicated as a general principle,-the case turning wholly on an act of assembly of Virginia. See act Feb. 8, 1813, c. 25, § 2. And see Gilbert on Uses by Sugden, 10, 367, 445; Preston on Conv. 2 vol. 247; Kent's Com. 2 vol. 54.

When a submission is made of all matters in difference between two parties in a particular suit then depending, to two persons, and such umpire as they shall choose,

and their award to be made the judgment of the court, and the arbitrators and umpire act together and make a joint award, such award will be good. Although the award does not state that the third person who signed the award had been chosen by the arbitrators as umpire, yet the fact may be proved by other evidence. And if the third person who signed the award, were a mere stran ger the award would not thereby be vitiated. Rison v. Berry, 4 Rand. 275; and see Bates v. Cooke, 9 B. & C. 407.

The appointment of the third must be the act of the will and judgment of the twomust be matter of choice and not of chance. Harris v. Mitchell, 2 Vern. 485; Wells v. Cooke, 2 B. & A. 218. In Re Casele, 9 B. & C. 624; Ford v. Jones, 3 Barn. & Adolp. 248; 23 C. L. R. 61. From these cases it would seem that Neale v. Ledger, 16 East, 51, is not law. But see Turns & Bird, 5 Barn. & Adolp. 488; 27 E. C. L. R. 107; and Jamieson et al. 4 Adol. & Ellis, 945; 31 Eng. C. L. R. 231.

Submission to arbitration of three or any two; two join in the award, giving notice of the award concluded and about to be returned, to the third who does not join in it. Held, no objection to the validity of the award. Wheatley v. Martin's adm'r, 6 Leigh, 62.

It is well established, that where a matter of law is referred the parties must abide by the decision though erroneous. Smith v. Smith, 4 Rand. 95; 6 Ves. 282; 9 Ves. 364. As to the facts, the court by the reference is divested of all judgment as to them. Dick v.. v. Milligan, 2 Ves. jr. 24. Per P. Tucker, in delivering court's op. in Chapline v. Overseers of Poor, 7 Leigh, 232.

A mistake of judgment in arbitrators is not sufficient evidence of improper conduct on their part to justify the setting aside their award in a court of chancery. Campbell et al v. Western et al. 3 Paige, 124.

It is equally the rule of equity as of law, that the reasons for setting aside an award must appear on its face, or there must be misbehaviour in the arbitrators or some palpable mistake. Wheatley v. Martin's adm'r, 6 Leigh, 62.

In debt on an award the execution of the submission by all the parties must be proved. Ferrer et al. v. Oven, 7 Barn. & Cress. 427.

In assumpsit upon an award founded on a parol submission, and the general issue pleaded, it is competent to the defendant to adduce proof, at the trial, that his submission to arbitration was procured by fraud. Bierly

v. Williams, 5 Leigh, 700.4700 |

No calculations or grounds for an award, which are not incorporated in it, or annexed to it at the time of delivery, are to be received or regarded as reasons or grounds to avoid it. Taylor's adm'r v. Nicholson, 1 H. & M. 67; 2 Munf. 7, 8.

To set aside an award for mistake in the arbitrators, either as to law or fact, the mistake must appear on the face of the award. Affidavits may be introduced, but they must go to prove partiality, or misbehaviour, and not mistakes in law or fact. Pleasants & Co. et al. v. Ross, 1 Wash. 156, 7; and see Wood v. Griffith, 1 Swanst. R. 55, and the authorities cited in note (a); Anon. 1 Chitty's R. 674, and note (a.)

An award may be set aside on the ground that the arbitrators admitted illegal evidence. M'Alister v. M'Alister, 1 Wash. 193, 4; or, for having rejected legal evidence. Ligon v. Ford, 5 Munf. 10.

For an elaborate opinion on the conclusive nature of awards, by Kent, Ch. see Underhill v. Van Courtland, 2 Johns. Ch. R. 339,

360-9, the law of which remains sound and unshaken, though the decree was reversed by the court of errors, [17 Johns. R. 405,] 4 Johns. Ch. R. 408; and Carr, J. 3 Rand. 128.

(e) It is not necessary that an award should lie in court two terms before judgment upon it, if the party offer exceptions at an earlier period. Mitchell v. Kelly, 1 Call, 379.

(f) The power of courts of equity, to revise awards, does not extend to cases in which the objections to the award have been fully heard in a court of law. Flournoy's ex'r v. Halcomb, 2 Munf. 34; Morris et al. v. Ross, 2 H. & M. 408. See Gwinett v. Bannister, 14 Ves. jun. 530; v. Mills, 17 Ves. jun. 419.

A court of equity ought not to set aside an award for objections which might have availed in a court of law, and which the party failed to urge there, without a good excuse for the omission. Head v. Muir et al. 3 Rand. 122. Wheatley v. Martin's adm'r, 6 Leigh, 62.

In cases of bonds to perform awards, there are two remedies; first, at law upon the bond, in which a plea that the arbitrators made no award, would, if true, defeat the plaintiff's action: Secondly, if any act be awarded to be done, for which a complete remedy cannot be had at law, such as to make a conveyance, a bill in equity for a specific performance of the award is common and proper. Pendleton, J. in Smallwood v. Mercer et al. 1 Wash. 290, 295.

That a bill will lie for the specific perform ance of an award is clear, because the award supposes an agreement between the parties, and contains no more than the terms of that agreement ascertained by a third person; and then the bill calls only for a specific performance of an agreement in another shape; but the court has always exercised the discretion of withholding its assistance for the performance of unreasonable agreements. Ld. Eldon, Ch. in Wood v. Griffith, 1 Swanst. R. 54.

A submission to an award is an agreement between the parties to it to abide by and perform it in every particular, and the mutual submission of the matter in controversy, is a valid consideration for such agreement. If either party refuses to comply with the

terms of it, and there is adequate remedy at law, a court of equity will not interfere; but, as in the case of other agreements, if that remedy be inadequate, neither upon reason nor authority, does there seem to be any objection to a specific execution in a court of equity. Smith et al. v. Smith et al. 4 Rand. 93, 99; M'Neil v. Magee, 5 Mason, 244.

In debt on a bond conditioned to abide by an award; the condition being made part of the declaration by oyer, and the defendant having pleaded "conditions performed," the plaintiff, by a special replication, may set forth the award, and aver a breach of the condition, not having done so in his declaration: but if he neglect to do this, and reply generally, judgment in his favour will be arrested, and the proceedings subsequent to the plea set aside, and a repleader awarded. Green v. Bailey, 5 Munf. 246.

In an action for not performing an award the plaintiff need only shew so much of the award as is sufficient to state his demand. Doolittle v. Malcom, 8 Leigh, 608; M'Kinstry v. Solomons, 2 Johns. R. 62.

An award that one party shall pay a specific sum to the other, is mutual and sufficient, without directing a release or other act

by the latter; and such award being written on the back of the submission bond, must be taken to settle all matters therein submitted, and is therefore sufficiently certain and final. Doolittle v. Malcom, 8 Leigh, 608.

A suit by an assignee of a bond against the obligor being referred to arbitration, the arbitrators find the debt to have been discharged by payments to and set-offs against the assignor, and make an award in favour of the obligor, upon which judgment is en

tered. Whereupon an action is brought by the assignee against the assignor. Held, that though the assignor is at liberty to controvert the facts found by the award, and shew that the judgment is erroneous, yet, until the contrary be shewn, the judgment is to be presumed to be right, and is therefore sufficient to establish the liability of the assignor, and support an assumpsit founded on such liability. Scates v. Wilson and Edmunds, 9 Leigh, 473.

What instruments assignable,

Effect of assignment,

(a) Prior to the operation of the act of Dec. 1795, which took effect on the first of March, 1796, bonds, bills &c. for the payment of money or tobacco alone, could be assigned. Craig v. Craig, 1 Call, 483; Henderson v. Hepburn, 2 Call, 232; Lewis v. Harwood, 6 Cranch, 82. But though the bond be dated prior to 1st Mar. 1796, if the assignment thereof be subsequent to that period, the act of 1795 will protect it. Meredith's adm'x v. Duval, 1 Munf. 76, 85.

(b) The intention of this law was, to alter the common law, so far as it prevented bonds &c. from being assigned; and, to give the assignee a right to sue in his own name, in the same manner as the obligee &c. might have done. It was not intended to abridge the rights of the obligor, or to enlarge those of the assignee, beyond that of suing in his own name; (Roane, J. in Norton v. Rose, 2 Wash. 248;) and, to prevent the obligee releasing to the obligor after the assignment, and the obligor from paying to the obligee after notice thereof. See Wheeler v. Hughes, 1 Dall. 23.

F. is indebted to D. by bond payable Jan. 1820, which, after it is due, is assigned by D. to C., but, before notice of assignment, F. becomes surety for D. in a bond to B. payable Feb. 1822. D. becomes insolvent. Held, F. is entitled, in equity, to set off the amount of the bond in which he is D.'s surety to B., though not yet due, (unless he is indemnified against his suretyship,) against his own bond to D. in the hands of C. the assignee. But this equity against C.

he may waive by his own conduct. Feazle v. Dillard, 5 Leigh, 30.

Nicholas holding bonds of Clopton for 400, payable at a future day, assigns them to Morris & Bullock, and then becomes insolvent; Scott holds a bond of Nicholas to him for $2247, on demand; after Nicholas's assignment of Clopton's bonds to Morris & Bullock, but before Clopton has notice of such assignment, an agreement is made between Scott and Clopton, whereby Scott assigns Nicholas's bond held by him to Clopton, and Clopton gives his note to Scott, to pay him the amount thereof, six months after the date when Clopton's bonds to Nicholas, assigned to Morris & Bullock, were to fall due; at the time of this agreement between Scott and Clopton, they were both apprised of Nicholas's insolvency, and their purpose was to save to Scott the debt which Nicholas owed him, if by this means it could be saved, and it was understood between them that if Scott's assignment of Nicholas's bond to Clopton should turn out not to be a legal one, or if by reason of any law unknown to either party Clopton should be unable to set off Nicholas's bond, assigned him by Scott, against his own bonds to Nicholas assigned to Morris & Bullock, then neither Clopton should have recourse against Scott on his contract of assignment, nor Scott have recourse against Clopton, on his note for the contents of Nicholas's bond, assigned by Scott, to him. In action by Morris & Bullock, against Clopton, on his bonds to Nicho las, assigned by N. to them, held, Clopton