The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1872-10-15
Mr.. Mcclure, in bis testimony, says that

Mi' nV1!uLe, III nb lesumOny, says ina
he, ION the part Of the city, went on
through the sanction Of Mr. Woods, anC
BY an agreement Of one Of our rules go
all the facts that 1t was possible to get a
home and abroad, and had them present.
ed before US, from which, and In connec
ton with our own knowledge, we made
up our award"
Mr.. Eoif In his testimony, in answer tc
the question, "DuriDg the progress of the
arbitration who attended mainly 10 the
interests Of the city in collecting up and
arranging testimony, procuring the at
tendance ot witnesses, and examining
and cross examining themS" said Mr.. john
Mcclure, with the occasional assistance Ol
Mr.. Jefers, but Mr.. MLure principally,
notwithstanding my repeated remon.
STRANGE that he was going beyond the
line Of his duty in thus acting, making
himself thereby 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
M'Lure applied to him to become his as.
ststant to "get up evidence in behalf OF
the city, help him to arrange 1t, &c."
which OBrien says he refused to do.
The evidence, therefore, shows very
clearly that NJ Lure misconceived his duty
as an arbitrator and acted in behalf of the
city in getting up evidence 10 be used be.
fore the arbitrators.
There is nothing In the evidence to
show partiality or corruption or improper
motives In the arbitrator, MLure.
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 consciousness
oi rigid Justice that supports his determi
nation oil the controversy. 1t is not his
conscientious intent 10 be honest, nor his
conviction in his own mind that he Is so,
that can suffice. 1t is his external actions
that will be subjected TO scrutiny; and if
these do not satisfactorily bear the test,
the award will lAll.-Morse on Arbitration
and awards, p. 534; Strong vs.. Strong, 0
Gushing, 500.
There may be ample misconduct in a
legal sense 10 make the Court set aside an
award, even where there Is no ground for
imputing the slightest improper motives
to the arbitrator on Arbitration
and Awards, p. 534.
If the case stood alone on the evidence
OF the legal misconduct of Mcclure, the
award would have TO be set aside. Walk.
er vs.. Frobisher, 6 Yes, 20.
But upon looking into the record 10 see
what the eVidence'iS In respect TO the al.
legged misconduct Of Mcclure, it appears
that Eoff, the arbitrator appointed by the
Gas Company, Is stockhOdcr in the said
company and interested in the result OF
the arbitration; and that he was appointed
arbitrator because he was stockholder
and because 1t was understood that
Mcclure was TO be appointed by the city.
Though 1t does not directly appear, yet it
Is plainly inlerrable from the testimony in
the record, that Eof1 was appointed by
the Gas Company to watch Mcclure.
In the case of Fox vs.. Hazelton, 10
Pickering, 277, it is said by the court, that
if parties really intend to have their rights
decided by impartial judges, they arc en-.
titled to insist that allishall be impartial.
But It they are content to submit ques.
tons in controversy 10 those who are
known to have formed and expressed
opinions upon the subject matter, or who
are known to have partialities and preju.
dices for or against the respective parties,
an award made by such arbitrators is
binding. And 1t is not unfrequent In
practice for each party 10 select a friend
known to have fortified and expressed
opinions upon the subject and preferences
for the parties respectively, trusting that
these opposite prejudices will balance
each other, especially with the aid Of an
impartial umpire.
Without commencing the expediency
Of fsuch references the Court can entertain
no doubt OF the validity Of an award made
by such referees, nor could the parties be
heard 10 impeach II on this ground. Ac.
cording to the authority OF the case oil
Fox VS.. Hazleton, the Gas Company
ought not TO be heard to impcach the
award in this case, under the circum.
stances OF the appointment and conduct OF
the arbitrators, Especially should this be
80, when 80 far as the record discloses the
amount Of the award seems 10 be fair.
The case was not made up with view
to show the value of the property of the
Gas Company, but there Is some evidence
In the record as TO the value OF some of
the items embraced in the award, and in
every instance 10 which have compared
the value fixed in the award with
the evidence, the value fixed is found to
be fully as high as Is warranted by the
evidence. Upon the whole case, there.
fore, the award ought not to be disturbed.
There Is no other ground of equity juris.
diction set up in the bill, unless the court
should be Of opinion to set the award
aside, but as this court fails 10 see any
good cause 10 set the award aside, the
other questions cannot be considered.
The question as 10 the sufflciency or in.
suff1ciency Of the award on account OF but
two Of the arbitrators signing 1t cannot
be determined by this court Tor want of
jurisdiction. The judgment complained
Of will have to be affirmed with damages
and costs.
THE PRESIDENTS Doc. .CART.-In one