DAVY'S EX'RS. v. FAW. Francis Peyton, one of the arbiters, declares that he considered all the transactions between Faw and Davy as submitted to them; that Faw himself laid before them the bond he had given to Davy for a conveyance of the lot he had sold, and that he always understood from Mr. Faw during the arbitration that he was willing to pay 100 for the lot conveyed to him by Davy. Peyton adds that the mode adopted by the arbiters for arranging that part of the subject, was understood by them to be the one which was most agreeable to Mr. Faw. The Court is of opinion that the Plaintiff in the Court below has failed in showing that the arbiters have exceeded their powers. 2. A second objection to this award is, that the arbiters have not settled the accounts between the parties for flour stored by Faw for Davy, which accounts were clearly within the submission. The Defendant has not shown that he is injured by this omission, and it is, therefore, unnecessary to decide whether, had he been injured, a Court of equity could or could not have afforded relief. 3. A third ground, on which the application for relief is placed, is the partiality and improper conduct of the arbiters. That judges chosen by the parties themselves as well as those who are constituted by law, ought to be exempt from all imputation of partiality or corruption; that their conduct ought to be fair, and their proceedings regular, so as to give the parties an opportunity to be heard, and themselves the means of understanding the subjects they are to decide, are propositions not to be controverted. But corrupt motives are not lightly to be ascribed to the arbiter, nor is partiality to be attributed to him on account of difference of opinion with respect to the decision he has made. The charge made in this case, that the parties were not sufficiently heard, is not supported, and is contradicted by the testimony in the cause. The general charge of partiality is also contradicted and is express- DAVY's ly denied by the arbiters, who have been made Defend- EX'RS. ants, and by the deposition of Francis Peyton who did not sign the award. Some particular facts have been proved, by which this charge, it is supposed by the counsel for the Defendant in error, may be supported. McKinsey Talbot deposes that, after the arbiters had separated, Thomas Herbert, who was one of them, said that David Davy ought to buy his winter's meat for him without making any charge on account of the particular service he had rendered him in the said arbitration. That such language is unbecoming in a judge will not be denied; and if the circumstances leading to these expressions, and the manner in which they were uttered, had been stated in the record, and there had been reason to believe that the words were spoken seriously, they would have furnished objections to the award not easily to be removed. But nothing is stated which could give these expressions a serious aspect. They appear not to have been delivered confidentially; and as it is difficult to conceive that a man, who could be chosen as an arbiter, would thus wantonly and unnecessarily expose the depravity of his own conduct, the Court must consider these words as spoken in sport, with indiscreet levity, but not as seriously indicative of of an opinion that he had made an unjust award. The same witness, in another deposition, states that he was present at a meeting of the arbiters, and heard Thomas Herbert say that they had the hands of Abraham Faw so fast tied that he could not, for his life, get them loose. It is impossible to consider these expressions in an arbiter without some disapprobation. But what led to the employment of them does not appear; nor is the Court informed of the temper in which they were employed. It is worthy of remark that Thomas Herbert does not appear to have had an opportunity of cross examining this witness, and that this deposition was v. FAW. DAVY's taken before the arbiters were made parties to the EX'RS. cause. FAW. There is some testimony respecting some altercations or jealousies between Faw and some of the arbiters at a corporation election, but they were too trivial to be worthy of notice; and as they occurred about the time of the submission, and before the arbiters proceeded on the business, it is supposed that they would have induced Faw, had he thought them of any importance, to make some effort to prevent an award. Upon a view of the whole case, the Court is of opinion that the Plaintiff in the Court below has not shown sufficient matter to set aside the judgment at law, and doth therefore direct that the decree of the Circuit Court be reversed and annulled. March 18th-After the decision of the cause, C. Lee for the Defendant in error, cited Kyd on Awards, to . show that where the dispute is about land the submission and award must be by deed. MARSHALL, Ch. J.-That is where the title is in question. But here the title was conveyed the dispute was only as to the price. The question of title was not submitted. LIVINGSTON, J.-Although that point was not made in the argument, yet it was considered by the Court. 1812. March 4th, HUGHES v. MOORE. A Flaintiff may before verdict, discontinue a Count in his declaration, and wave the issues joined Present....All the judges. ERROR to the Circuit Court for the District of Columbia, sitting in Alexandria. This was a special action of assumpsit, brought by Moore against Hughes. The declaration, after several amendments, contained four counts. 0. to the Plain patent in his for land which 1. The first count stated, that whereas on the 16th HUGHES of June, 1797, it was agreed between the Plaintiff, and one John Darby, by a writing under their hands and MOORE. seals, now here shown to the Court, in substance as follows: whereas Cleon Moore, had located in his own thereon. name, 9922 acres of land in Kentucky, by a treasury pay a sum of A promise, to warrant No. 19,100," and the said Cleon Moore, money as a hath sold all his right, title and interest of, and in the compensation same, to John Darby, for the consideration of 300l. and tiff for the warrants that no person or persons claiming under John injury done Tebbs, now deceased, or under him the said Cleon misconduct of him by the Moore, shall interrupt him, the said John Darby, in the Defendant his said claim to the said lands, but as to all other claims in obtaining a he is to run the risk, and on their account, will never own name require, that the said Cleon Moore, or any other per he ought to son or persons, shall refund the said 300l. or any part have patented thereof, but if there should be as much land secured by the in the name of said location, as will bring two thousand pounds or up- and in prethe Plaintiff, wards, the said John Darby, is to pay the said Cleon venting the Moore 700l. in money, over and above the said three Plaintiff from obtaining a pahundred pounds, so that he may receive altogether, one tent in his own thousand pounds; otherwise the said Cleon Moore is name, and in cons deration only to have the said consideration of three hundred of the Defendpounds." At the bottom of which writing, was a re- ant's having ceipt in these words, "Received of John Darby, the procured the sum of three hundred pounds, the full consideration for be issued to the first mentioned location, in the foregoing agree- himself, is inent, or of his right, title, and interest of, and in the the sale of same Cleon Moore, and a seal. And whereas on the land within the statute of same day, a memorandum in writing, and under the frauds, and seals of the Plaintiff and the said Darby, was added and must be in indorsed on the said agreement as part thereof as fol- writing. Oyer of a lows: "Memorandum-If a patent or patents have al- deed set forth ready issued for the first within mentioned location, the in the first said Moore, doth agree to assign the same, to the with- not make that in named John Darby, his heirs and assigns; or if not deed part of issued, that they issue in the name of the said Cleon the record so Moore, and he is to assign them to the said John Dar- to other by, his heirs and assigns; and if in the opinion of any counts, in the two respectable men in the neighborhood of the said lands, to be mutually chosen, shall say the said lands will sell for two thousand pounds, or upwards, the said John Darby doth bind himself, his heirs and assigns, to pay unto the said Cleon Moore, his executors, VOL. VII. 24 patent to a contract for count does as to apply it declaration. HUGHES administrators and assigns, the sum of seven hundred 0. pounds, as herein mentioned." MOORE. "And whereas the said Defendant, afterwards, on the 5th of October, 1799, well knowing the contract and covenants aforesaid, between the said Cleon Moore and John Darby, and more especially well knowing that a patent or grant had not then been issued for the tract of 9922 acres, located in the name of the said Cleon Moore, and well knowing that the patent for that land ought, and could only be issued unto the said Cleon Moore, and well knowing that the said Cleon Moore was entitled to the sum of 700l. lawful money of Virginia, of the value of 2,333 dollars, and 33 cents, provided, in the opinion of any two respectable men in the neighborhood of the said lands, to be mutually chosen, they should say the said lands would sell for 2,000l. or upwards, lawful money of Virginia; and whereas the Defendant, well knowing that the said lands were really and truly worth, on the day and year last mentioned, a much greater sum than 2,000l. and well knowing that it would materially injure the Plaintiff in his contract aforesaid, and would materially benefit the said John Darby and himself, the said Defendant, he the said Defendant, on the said 5th day of October, &c. assigned the plat and certificate of survey, made of the said 9922 acres, and a warrant numbered 19605, in the name of the Plaintiff, unto himself, the said Defendant, and the said John Darby, without any lawful authority. so to do from the said Cleon Moore, by making and subscribing the said assignment of the said survey, in the name of him, the said Cleon Moore, by him the said James Hughes, as attorney in fact, for the said Cleon Moore, which assignment, imported a desire of him the said Cleon, that patents might issue in the names of the said Darby and Hughes, intending thereby to defraud and injure the said Cleon Moore, and to benefit himself and the said John Darby, in respect to the premises aforesaid. And whereas the said James Hughes, by means of the herein before mentioned assignment, had caused and done to the Plaintiff, an injury to the value of a great sum of money, to wit, the value of 4,000 dollars, which he was disposed to compensate; the said James Hughes in consideration thereof, afterwards, viz: on the 17th of March, 1806, came to an agreement with |