WILLIAMS verʃus CRAIG.
T
HIS caufe being referred, a report was made in favor of the Plaintiff for a confiderable amount, to which the following 1788.
exceptions were filed, and argued on the 12th of July, by J.B. M‘Kean, Lewis, and Ingerʃoll for the Defendant ; and Sergeant and Coulthurʃt for the Plaintiff:
1ft, That the Referrees heard the Plaintiff's witneffes ex parte.
2d,That they heard the Plaintiff ex parte, without giving notice to the Defendant.
3d,That they have allowed intereft upon an unfettled account.
4th, That they refufed to allow a fet off.
5th, That the Defendant has difcovered new and material teftimony fince the report.
6th That the Referrees allowed a charge for Premium and Commiffions in making an Infurance for the Defendant, without requiring the Plaintiff to produce the policy, or having any other proof that the Infurance was effected, than a letter from the Plaintiff himfelf to his Partner in Philadelphia, in which he fays he has done it.
As the chief justice, in delivering the opinion of the Court, adverted to thofe exceptions which were groundlefs, or immaterial, and ftated thofe particularly on which their decifion was formed, I fhall avoid recapitulating the arguments of counfel, and only fubjoin the authorities on both fides.
M‘KEAN, Chieƒ Juʃtice.– There are four fpecies of Awards: firʃt, thofe made by mutal confent, in purfuance of arbitration Bonds entered into our of Court ; ʃecondly, thofe which are made in a caufe depending in a Court of Law or Equity, upon the confent of the parties to refer the matter in variance (which are awards at common law) thirdly, thofe which are made under a rule of Court, by virtue of the ftatute of 9 and 10 W. 3. c. 15. which was calculated to remedy the delay and circuity of action attendant upon Awards made merely in purfuance of arbitration Bonds, without the intervention of a controuling power,to compel the acquiefcence of the parties.– Thefe are the only Awards in ufe at this day in England ; but the Legiflature of Pennʃylvania, in the year 1705, introduced another fpecies here, which are fourthly, thofe awards, or reports, that are made in purfuance of the act of Affembly fetting forth, that ‘‘ where the Plaintiff and Defendant confent to a rule
‘‘ of Court for refering the adjuftment of their accounts to certain
‘‘ report, of fuch Referees, being made according to the fubmiffion
‘‘ of the parties, and approved by the Court, and entered upon the re-
‘‘ cord, or roll, fhall have the fame effect, and be as available in
‘‘ law as a verdict by twelve men.’’ 1 State Laws 48. 4 Ann. c. 36.
This act differs effentially from the ftatute of W. 3. in many refpects, but particularly, that to render a report, or award, valid and effectual, the former requires, that it be approved by the Court; but no fuch provifion is made by the latter, and, therefore, awards under rules of Court, are conclufive in England, unlefs fome
corruption or other mifbehaviour, in the Arbitrators is proved. The Courts of Equity, indeed, have taken a wider ground, and whereever a plain error appears either in matter of fact or law, it feems, they will make it an object of enquiry. 2 Vern. 705. 1 Vern. 157. 3 Atk.494. From fome expreffions in the authority, we might prefume, that the error muft be apparent on the award ; but as the Chancellor, at the fame time, fpeaks generally, that it muft be fet forth in the bill for relief, there is, at leaft, great room to doubt upon the fubject.
In Pennʃylvania, however, fince, the Revolution, as the approbation of the Court is made a neceffary ingredient in the confirmation of reports, we have thought it our duty, from time to time, to enquire into the allegations againft them, before we gave them our fanction. But, in doing this, we have always confined ourfelves to two points ; –1ft, Whether there is an evident miftake in matter of ƒact ; or 2dly, whether the Referees have clearly erred in matter of law. If either of thefe is fatisfactorily proved, the argument is, furely, as ftrong for fetting a report afide, as where injuftice has been done by the corruption, or other mifconduct of the Referees.
Is it not reafonable, indeed, that the fame caufe which would induce us to fet afide a verdict, and grant a new trial, fhould be fufficient for vacating on award? In the one cafe, the decifion is made by twelve men upon oath, with all the information which the Judges, and learned Counfel can communicate:–in the other, it is the act of three perfons, who are not fworn to the faithful difcharge of their duty, and who are unaffifted, either in afcertaining the law, or in developing the fact, upon which the queftion fubmitted to them may depend. This abundantly fhews that the facrednefs of awards ought not to be extended beyond the fame footing, when errors are fuggefted either in clear points of law or fact.
If, therefore, we would have granted a new trail, had the prefent exception been made to a verdict, we ought, for the fame reafons, to fet afide the report in queftion.
Let us, then, confider the cafe upon its merits.–The evidence has failed in eftablifhing the firƒt and ʃecond exceptions, which relate to the mifconduct of the Referres ; and, with refpect to the ƒourth and ƒiƒth, though the Court incline to think that the arguments are in favor of the Defendant, yet we do not find it neceffary to give any opinion upon thefe, as we have not doubt, that, for the third and ʃixth reafons, the report ought to be fet afide.
Thus, under the third exception, it has been proved by the ftatement exhibited by the Referees, that intereft was allowed to the Plaintiff upon an unliquidated account ; which is contrary to the general rule of law, as well as to the repeated decifions of this Court. There are only three cafes in which intereft can be allowed upon an open account ; 1ft, where it is payable by the exprefs agreement of the parties ; 2dly, where is is payable by a general ufage, as in the trade between England and America, to which (with
1788.
an exception during the continuance of the late war) we have uniformly acceded ; and 3dly, where there has been a vexatious and unreafonable delay to making payment, which will induce the Court to direct, and the Jury to grant, an adequate compenfation, under the name of damages, for which the rate of intereft is generally made the rule of computation. The doctrine upon this fubject was fully cifcuffed and determined in Henry Exor. vs. Riʃte et al. ant 265. We think it eftablifhes a juft and ufeful principle, which tends equally to promote credit, and to prevent feuds and litigations. In tranfgreffing this principle, the Referees have miftaken a clear point of law, which would alone be fufficient for fetting afide their report.
But, befides this, we find by the evidence under the ʃixth exception, that they have alfo allowed the charge of premium and commiffion for making an Infurance, without requiring the Policy to be produced that, in fuch cafes, can be admitted in any Court, either of civil or common law jurifdiction. It is, indeed, a fundamental maxim in the laws of evidence (wifely framed for the prevention of frauds) that the beft proof, of which the fact reafonably admits, ought to be given. This had not been complied with on the prefent occafion ; and the Referees in over-looking it, have violated another plain principle of law.
Upon the whole, as our decifion againft the Plaintiff can produce no material injury, but if againft the Defendant, would forever preclude him from a chance of juftice, the court unanimoufly direct.
For the Plaintiƒƒ were cited :– 5 Bac 250. 1 Bac. 134. 2 Burr. 701. Salk. 71.73 3. Burr. 1259. 2 Vern. 705. 1 Vern. 157. Bull. L.N.P. 170. 180. 8 Vin. 61. 1. Atk. 67.2 Vern. 706. 3 P.Wms. 25. 408. 3 Atk. 509.
For the Defendant were cited:–2 Vern. 515. 1 Atk. 64. 2Vern. 705. 3Atk. 494. 3 Burr. 1259. 5Burr. 2729. 1 Ld. Ray. 271. 12 Vin. 25. pl. 35. Cowp. 445. Doug. 627. 1 Shew. 173. 1 Salk. 392. Gilb. L.E. 4.5.16.17.