The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1872-10-15

PIP: lOo, lO7; Russell on Arbitration, .
2oo; Strong Us. Strong, 9 Gushing, $50
An arbitrator must not act as tn
S agent OF the party appointing him.
Morse on Arbitration and Award
D. l07.
Featherstone Us. Cooper, 9, Yes. 81
, Cslcraft Us. Roebuck, Yes. p. 226.
'' If the bill had charged that Mr.. Nc
Lure acted as the agent of the cit,
during the arbitration, the charge would
t be sufficient on the face of the bill t
e give the Court jurisdiction.
tl But the charge is that ne acted as th.
, adviser and partisan of the city o.
l Wheeling" aud this would seem to be q
= more serious charge than it would be
to charge that he acted as agent.
This Is therefore a sufficient charge
Of partiality and misconduct to give g
court of equity jurisdiction of the case
to set aside the awards, if the charge is
true.
The answers deny this allegation Of
the bill and it's truth must depend on
the proofs in the case.
There is no evidence to show that
during the arbitration, Mr.. Mcclure
acted as the adviser of the city of
Wheeling.
Mr.. Mcclure in bis testimony SAYS
that he, ION the part Of the city, went
on, through the sanction OF Mr.. Woods,
and by an agreement Of one of our
rules, got all the facts that it was possi-
BILE to get at home and abroad, and had
them presented before US, from which,
and in connection with our own knowl-
edge, we made up our award"
Mr.. Eoff, in his testimony, in answer
to the question, During the progress of
the arbitration, who attended mainly to
the interests OF the city, in collecting up
and arranging testimony, procuring the
attendance of witnesses, and examin-
ing and cross examining them p
said Mr.. John Mcclure, with
the occasional assistance of Mr..
! Jefers, but Mr.. Mcclure princi-
, pally, Notwithstanding my repeated
remonstrance that he was going beyond
the line of his duty in thus acting,
making himself thereby a partisan
rather than an arbitrator, juror or judge,
! and protesting that | would not act in
the same manner.
O'Brien in his testimony states that
Mcclure applied to him to become his
assistant to "get up evidence in behalf
of the eity, help him arrange il" etc;
which OBrien says he refused to do.
The evidence, therefore, shows very
clearly that Mcclure misconceved his
duty as an arbitrator and acted in be-
half of the city in getting up evidence
to be used before the arbitrstors.
There is nothing in the evidence to
suUw parIlallty, or CurruptiVu, VI itn>
proper motives in the arbitrator Nc
Lure.
1t is not alone the fact, but the aspect
of perfect fairness which must be pre-
served, and an arbitrator cannot be too
careful as to his conduct, holding this
end in view. 1t is not his own con-
sciousness of rigid justice that supports
his determination Of tn. controversy.
It is not his conscientious intent to be
honest nor his conviction in his own
mind that he 10 80, that can suffice. 1t
is his external actions that will be sub
iected to scrutiny, and il these do not
satisfactorily bear the test the award
will fall.
Morse on Arbitration and Award, p.
534.
Strong Us. Strong, 9 Cushing, 500.
There may be ample misconduct in
legal sense to make the court set aside
an award, even where there is no ground
for imputing the slightest improper
motives 10 the arbitrators. (Morse on
Arbitration and Awards, p. 534
If the case stood alone on the evl-
dence of TIE legal misconduct of Nc
Lnre the award would have to be set
ASIDE. (Walker Us. Frobesher, + Ves''
7O)
But upon looking into the record to
ace what the evidence is in respect to
the alleged misconduct Of Mcclure, 1t
aprears that Eoff, the arbitrator ap-
poipted by the Gas Company, is stock
holder in the said company and inter-
ested in the result OF the arbitration.
And that he was appointed arbitrator
because he was a stockholder and be-
cause it was understood that Mcclure
was to be appointed by the city.
Though it does not directly appear yeet
it is plainly inferable from the tes'l-
, monv in the record that Eoff was ap-
pointed by the Gas Company to watcn
Mcclure.
In the case of Fox Us. Hazleton, ~
Pickering, 277, it is said by the Court
that if parties really iutend to have
their rights decided by impartial judges
thew are entitled to insist that all shall
be impartial. But if they are content
to submit questions in controversy 70
those who are known to have formed
and expressed opinions upon the subject
matter, or who are known to have par
5 tialities and prejudices for or against
the respective parties, an award made
hv such srbiirators is binding. And 1t
ia not uutreauent in practice tor each
+, narty to select friend known to have
tormed and exposed opinions upon the
!; subject and preferences for the parties
respectively, trusting that these oPpo'
site preiudices will balance each other,
!, e,pe cially with the aid OF an impsrfal
: umpire.
without commencing the expediency
of sncb references, the Court Can enter
tain no doubt OF the validity OF .!
, award made by such referees, nor couid
: the parties be heard to impeach it or
= this ground.
II According to the authority OF th'
h case of Fox Us. Hazelton, the Gss ooH,