Shepherd v. Briggs.

Arbit. 219; 2 John. Ch. R. 348-9, Underhill v. Van Cartlant. Nor can the defendant show that a mistake was made by the arbitrators; 2 John. 62, Newell v. Douglass; 2 Wend. 567, Efever V. Shaw, Cald. 221.

The opinion of the court was delivered by

REDFIELD, CH. J. This was an action of debt upon an award of arbitrators. At the trial, the defendant offered evidence that certain costs between the parties, which the award, in terms, provides shall be paid by the parties respectively, were, by mistake and purposely both, included in the award; and also, that the amount awarded against defendant was, in part, made up of claims which were allowed without any evidence, and solely upon what the arbitrators heard out of doors, from the neighbours, in the absence, and without the knowledge of the parties. The two propositions amount to mistake and irregularity of conduct in the arbitrators, both or either of which are sufficient grounds for correcting the award in equity. But neither go to the whole award, and have not ordinarily been regarded as any ground of defense at law. There may be some cases where defenses, somewhat similar, have been allowed at law. But the great current of authority certainly, both English and American, is against such defense at law, unless where the arbitration is under rule of court.

A plea that the arbitrators, from mere mistake, error, and misapprehension of the law, right and justice of the case, allowed interest upon the plaintiff's claim, and denied it upon the defendant's, is no defense. So the defendant cannot plead partiality or improper conduct of the arbitrators. Williams v. Paschal, 4 Dallas 284; Braddish v. Thompson, 8 East 344. Such proof is not good on a plea of nil debet to an action of debt on the award; Wills v. Maccarmick 2 Wills. R. 148. So a plea that the arbitrator denied the party the right to examine witnesses to a point, but heard those of the other party, in his absence, and without his knowledge, is badShannon v. Wood, 5 Halsted 7.

But it has been held that a plea that the arbitrators refused to hear a portion of the claims submitted is good in defense, at law, even. Harkee v. Hugh, 2 Halsted, 428. This decision is put upon the ground that, if the arbitrators do not award upon all the

Shepherd v. Briggs.

matters submitted, the award is no compliance with the conditions of the bond, and therefore imposes no duty upon the party to perform it. But to such a defense, it is essential that the proof show that the matters not awarded upon were presented to the arbitrator with proper proof.

I think it has generally been considered in courts of law, that all defenses to awards, where the submission and award were in writing and under seal, for matters not apparent upon the papers, must be pursued in equity. And this rule has been considered to rest, as to mistake of the arbitrators and irregularity of conduct by them, upon the same ground that courts have refused to set aside a written contract between parties in a trial at law, upon the alleged grounds that, by mistake, the contract did not read as it was intended to. And, in regard to the conduct of the arbitrators, it has been considered, in some of the cases certainly, that the arbitrators were necessary parties to any proceedings based upon such a charge. Mere mistakes, or irregularity, short of positive corruption, might not require any explanation at the hands of the arbitrators. And it is difficult to perceive how, in any case, they are proper parties to a litigation, in regard to the validity of the award. And I doubt whether, upon principle, any corruption in the arbitrator or judge, unless with the procurement, or privity of the prevailing party, is any defense to an award, in a court of law. And if the corruption of the arbitrator be with the privity of the party, it is fraud, and is equally a defense at law, and in equity, as well as to specialties as simple contracts. But I do not say this is yet determined as to awards. But it is settled, we think, that the testimony offered was no defense, at law, to the action upon the award, and was therefore properly rejected.

The awarding mutual releases is well enough, as, whether executed or not, the award is a bar to all claims, where the submission is of all demands.

Judgment affirmed.

Hall & Bingham v. Lamb et al.

LESTER HALL AND L. G. BINGHAM v. EDWARD LAMB AND SALEM T. LAMB.

[IN CHANCERY.]

Vacating a decree. Appeal.

The court of chancery may vacate a decree made and enrolled upon, and in consequence of a bill being taken as confessed, so as to permit a defense to the suit upon its merits.

An application for this purpose is addressed to the discretion of the court of chancery, and should not be considered and determined by the supreme court.

If the application is granted, it is only an interlocutory, and not a final order or decree, and no appeal can be taken from it.

APPEAL from an order of the court of chancery.

The orators brought their bill to enjoin the defendants from collecting certain promissory notes signed and endorsed by the orators. The bill was taken as confessed, for want of an answer, and a decree in accordance with the prayer was entered, made up, signed and left with the clerk for record, after which an application was made to the court of chancery to vacate said decree and allow the defendants to file answers and defend the suit upon its merits. Upon this application the court of chancery, March Term, 1855,PECK, CHANCELLOR,-upon a hearing, ordered that, upon a compliance with certain terms, the decree in the original cause be vacated and taken off the roll, and the defendants have leave to answer the bill, &c. From this order the orators moved for an appeal, and entered the same upon the docket of the supreme court at its present term. The defendants moved to dismiss the appeal, on the ground that the supreme court had no jurisdiction of it.

D. A. Smalley in support of the motion.

Underwood & Hard against the motion.

The opinion of the court was delivered by

ISHAM, J. We entertain no doubt as to the power of the chancellor to vacate such a decree as was made in this case, even after its enrolment, for the purpose of giving the defendants an opportu

Hall & Bingham v. Lamb et al.

nity of defending the bill on its merits, when they have been deprived of that defense by mistake, accident, or even negligence. It was so expressly ruled by CH. KENT, in Beekman v. Peck, 3 John. Ch. 415, and by CH. WALWORTH, in Millspaugh v. McBride, 7 Paige 509, and in Kemp v. Squire, 1 Ves. 205. In the case of Wooster v. Woodhull, 1 John. Ch. 540, CH. KENT observed, that such applications were addressed to the discretion of the court, and they would be granted or refused upon considerations not at all affecting the merits of the case upon which the original bill was commenced.

The statute, p. 217, § 79, allows an appeal in chancery only from some final order or decree of the chancellor: and, not even then, when a final decree is made for non-appearance and neglect to answer the bill, nor on a decree of foreclosure of mortgage, except under a special permission of the court. The intention was, to allow appeals only in cases where the matter in controversy and on which the original bill was brought has been finally determined by the chancellor, so that, on an appeal from that decree, the whole case, on its merits, can be re-examined in this court. No appeal can be taken from any interlocutory order or decree, as that does not determine the merits of the case. The order of the chancellor, from which this appeal was taken, was purely interlocutory. It simply permitted the defendants to file their answer, and opened the case for trial in that court. The case is now pending before the chancellor. This appeal does not remove that case into this court, and, if we were to sustain it, we could only re-examine the question whether the chancellor properly permitted the defendants to file their answer, or whether, for not complying with the rules of practice in that court, the defendants should be precluded from all examination into the merits of their case. That question may or may not depend upon considerations affecting the merits of the original bill. It, in no sense, is a final order or decree in the case. For that reason, and from the fact that the application was addressed purely to the discretion of the chancellor, and should not be considered in this court, we think the appeal must be dismissed.

Bailey v. Warners.

CELINDA E. BAILEY v. LESTER S. WARNER AND AMASA

WARNER.

[IN CHANCERY.]

Equitable interest. Mortgage. Substitution.

Contract.

R. sold to L. W. a piece of land, but, by mistake, his deed described an adjoining piece to which he had no title. L. W. took possession of the place designed to have been, and which he supposed was deeded. The oratrix, being a creditor of L. W., attached all his real estate in the town, and subsequently levied upon a portion of the premises so sold, but not deeded. Between the attachment and the levy, A. W. claiming to have an equitable interest in the premises, obtained a quit-claim deed of them from R. Held that the oratrix acquired, by her attachment and levy, an equitable interest in that portion of the premises set off on her execution; and that, the attachment being constructive notice to A. W. of the oratrix's lien, he could not defeat her equitable right by his legal title, unless he had with it a superíor equity.

A person who is substituted in place of a mortgagee may, if equity requires it, be limited, and have allowed to him a less extensive right than that to which the mortgagee himself would have been entitled.

A mortgagee cannot be compelled to rely upon a part only of the mortgaged premises, though that part may be adequate security for his claim, but one substituted in his place may be, if equity requires it.

Application of this principle in the present case.

A mere understanding, or parol agreement, that a person making advancements, or incurring a liability, shall be secured therefor upon certain real estate, will be inoperative against a bona fide purchaser, or an attaching creditor without notice.

APPEAL from the court of chancery. One Rockwood was the owner of the equity of redemption of a piece of land, in Burlington, mortgaged by Charles Adams, the grantor of Rockwood, to one Gates, which he (Rockwood) bargained and sold to the defendant Lester S. Warner, but, in his deed, the description, instead of commencing at the north-east corner, by mistake commenced at the south-east corner, and described, by giving courses and distances which would have been correct with the north-east corner as the starting point, a piece of land lying wholly south of that owned by him. Neither party knew of the mistake, and the grantee, Lester S. Warner, entered upon the land purchased, and which he supposed was described in his deed, and erected a house thereon, and remained thereafter in the possession and occupancy of it. While so in possession, the oratrix, being a creditor of Lester S. Warner, commenced a suit, and attached all his real estate in the town of