#### Hollingsworth v. Lupton and Wife.

Saturday, Dec. 4th, 1813.

I. Arbitration and Award — Award—Validity of* — Case at Bar. — If a dispute concerning' the division of a tract of land under a will, he submitted to arbitration in general terms; and an award he made, stating that, “from the proofs adduced to the arbitrators, from the tenor of the will, and evident intention of the testator,” one of the parties is entitled to a certain number of acres, to be divided from the rest by a specified line; and the other to the residue of the tract; such award (being free from objection in other respects) is valid, notwithstanding the line established by it, is different from the dividing line mentioned in the will.

The following opinion and decree of the honourable JOHN BROWN, Judge of the Superior Court of Chancery for the Staunton District, pronounced in this cause, contains a sufficient statement of the case, together with some able observations on the law concerning awards.

“This suit is brought to set aside an award, and a division, agreeably thereto, of a tract of land devised by Isaac Hollingsworth, deceased, to Jonah Hollingsworth, (under whom the plaintiffs claim,) and the wife of the defendant Bupton, and to have the same divided according to the will *of the said Isaac. Two reasons are assigned why the court should set aside the award : — 1st. That it is not within the submission ; and 2dly. That it is erroneous. The language of the submission and award furnishes, it is believed, a conclusive answer to the first objection. The submission is of a “certain matter of controversy depending between Jonah Hollingsworth and David Bupton, respecting the division of the lands devised to Mary, the wife of the said David Bupton, and the said Jonah Hollingsworth, by the will of their father, Isaac Hollingsworth, deceased.” The arbitrators, after reciting that they “have been chosen to arbitrate, &c., upon a certain matter in dispute between the parties respecting the will and division of the land of Isaac Hollingsworth, deceased,” proceed as follows, viz. “From the proofs adduced to us, from the tenor of the will, and evident intention of the donor, Jonah Hollingsworth is entitled to two hundred acres of land, beginning forty-two poles from the stake, corner to lot No. 5, &c. and to be continued from thence a direct course, until it intersects the opposite line of the general patent, so that, after leaving one hundred and ninety acres to John Neal, the husband of Anne Hollingsworth, to include two hundred acres to' Jonah Hollingsworth, aforesaid. The remainder, be it more or less, we consider as the property of David Bupton, and award accordingly, &c. -&c.” If then we are to be governed by the language of the submission and award, as exhibited here under the hands and seals of the parties, the first objection must fail. But the plaintiffs contend that they have now a right to explain, by the testimony of the arbitrators, what the matter in controversy was ; that it was not general, respecting the division of the lands devised by Isaac Hollingsworth to the parties, (as the submission states,) and whether Jonah Hollingsworth was to be confined to two hundred acres, (as the award expresses ;) but that it was confined to the single enquiry, whether the course of the line beginning 42 poles from the stake, corner to lot No. 5, should be south 45 west, (as claimed by Bupton to have been the intention of the testator,) or south 54 west, the course mentioned in the will, and ^insisted for by Hollingsworth? Independent of the inadmissibility of such testimony upon reason and general principles, there is an additional objection to it in this case. That is from the award : — for the arbitrators themselves, (against whom no charge of partiality or improper conduct is made, but the reverse is admitted by the bill,) have clearly expressed in their award, that this was not the only point in issue. Instead of expressing any opinion about the course of a line, or referring to any marked line, they have taken a general view of the subject agreeable to the extent of the submission, and have said that Jonah Hollingsworth was entitled to 200 acres under the will, and David Bupton to the balance, after reserving to John Neale 190 acres. The arbitrators are known to the court, and their respectability or integrity will not be questioned where they are known. Those of them who have been examined do not pretend to have a perfect recollection of all the circumstances ; nor can it be presumed that they should after such lapse of time. They have, no doubt, very truly stated what they know and believe ; but, on general principles, their testimony cannot be received to the extent contended for by the plaintiffs.”

“But it is said that the arbitrators have erred in point of law ; that this error is apparent upon the award, and can be therefore corrected by the court. The general rule in cases of awards is, that the arbitrators are judges of the parties’ own choosing, and, therefore, they cannot object against the award as an unreasonable judgment, or as a judgment against law.” (a) And this rule appears to me to be bottomed on the most substantial reason. If a mere mistake of arbitrators in a matter of law was a sufficient ground to set aside their award, then this cheap, speedy, and frequently equitable mode of settling controversies, would, in a great measure, be done away. For I think it may be safely affirmed that none, or but few references are made in which questions of law do not constitute the principal ground of difference between the parties. Plain simple questions of fact, upon which no legal controversy can arise, are seldom submitted to arbitrators. But where the law is doubtful, where the ^parties wish to avoid an expensive suit, the result of which cannot be certainly know n ; or where they desire substantial justice, without regarding the strict legal rules of decision ; in such cases it is, that we find them submitting their causes, not to judges of law, not to men versed in the chicanery of- courts, but to honest judicious neighbours, without any pretentions to law learning, but in whose judgment and integrity they have confidence: a cheap and speedy trial, and substantial justice is all that is sought for, or can be expected by the parties ; not a decision which would bear a *53critical examination by the legal touchstone. And would it not defeat the very end which the parties profess to have in view ? Would it not be a direct violation of the very terms of the submission, if either party, for a mere error in the arbitrators, whether an error of fact or of law, should be permitted to plunge his adversary into all the perplexities and difficulties of a doubtful legal contest, after this express agreement to the contrary ? It is true, there may be errors of so gross and palpable a nature, as to induce a belief that they must have proceeded from some improper bias in the minds of the arbitrators, or from some gross misbehaviour or inattention. In such cases, relief might be proper. The doctrine, that courts may relieve against errors either of law, or fact, apparent on the face of the award, may be found in many cases in the books, and is recognized by our Court of Appeals in the case of Pleasants, Shore & Co. v. Ross, 1 Wash. 1S6. The same doctrine prevails where the errors appear in a paper accompanying the award, drawn up at the same time and evidently connected with it. This doctrine is admitted, not as an exception to the general rule before laid down, but as a part of that rule founded upon the same principle. But, in such cases, it ought clearly to appear that the arbitrator meant to be governed strictly by the law, or the fact. Por example, suppose he states in his award, or incloses his award in a letter in which he states, “Gentlemen, I have considered the law as establishing the best rule of decision in the case submitted to me ; I have therefore made mine agreeably to its principieswhen it *is manifest that the award is in direct hostility .to every legal principle by which he professed to he governed ; ought not such an award to be set aside ? Certainly. But not on the ground that the judgment of the arbitrator, when unreasonable, or against law, does not bind the parties : but on the ground that he has not given the judgment which he intended ; and therefore the court, carrying his intention into effect, so far at least as not to bind the parties by a decision contrary to that intention, will set aside his award. If this was not the doctrine, how should we reconcile the various seemingly contradictory decisions on the subject of awards, in some of which it is expressly laid down that an error in law, where the arbitrator undertakes to decide the law, shall not vitiate the award ? In such cases we must presume that the question of law was submitted by the parties, and, therefore, under the general rule first laid down, they were bound.”

“Apply these principles to the case before the court; and what ought to be the decision ? The will referred to in the award, and upon which the arbitrators in part decided, is before the court. Agreeably to reason and precedent, I think the court may look into that will, and compare it with the award. And if that had been the only evidence before the arbitrators, or the only ground of their decision, I should have been very much disposed to consider the case within the influence of the rule, that errors in law or fact apparent on the .award might be corrected by the court. But the arbitrators in their award, state other grounds of decision. They say, “from the proofs adduced to us, from the tenor of the will, and evident intention of the donor,” they have made up their award. What these other proofs were does not appear ; nor ought we to confine it to strictly legal testimony. The controversy respecting the division of the land was submitted. The parties might have agreed that the arbitrators should examine into facts not strictly examinable in a court of law, and, (as is generally the case -where there is no partiality or misconduct,) make up such an award, as appeared to them, upon the whole view of the subject, to be just and equitable. And this would appear to have been the case from the long *acquiescence o£ Jonah Hollingsworth under the award. He lived several years afterwards, contented, (for aught that appears to the contrary,) under it, and the division made in pursuance thereof : and it is only since his death, that it is attempted to be set aside by his representatives. The court doth therefore adjudge, order and decree that the bill of the plaintiffs he dismissed with costs.”

From this decree the plaintiffs appealed.

George K. Taylor, for the appellants.

Williams, for the appellee.

*

See monographic *note*on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.

(a)

 1 Atk. 64, Medcalfe v. Medcalfe.

Wednesday, January Sth, 1814, JUDGE ROANE pronounced the opinion of this court, that the decree be affirmed.