27 Va. 529 | Va. | 1828
delivered his opinion.
The Plaintiffs sued the Defendant on an account for goods, wares and merchandize, &c. Pica, non-assumpsit. By consent, the case was referred to arbitrators. They returned an award in favor of the Plaintiffs, for $203 40, which for reasons appearing to the Court, was set aside, and by consent, the cause was again referred to the same arbitrators, who again made an award in favor of the Plaintiffs,-$174 75, winch, on motion of the Defendant’s Attorney, was again set aside by the Court, and on his further motion, the order of reference was set aside, to which order the Plaintiffs objected, and the cause was ordered to be continued, and leave given to the Defendant to file a special plea, provided it was fded during the Term; and at the same Term, the Defendant pleaded four pleas ; 1st. Non-Assumpsit; 2d. A set-off; 3d. The Act of Limitations of merchants’ accounts; 4th. The Act of Limitations generally.
At the next Term, the Plaintiffs objected to the third special pica of the Defendant, which objection being over-ruled, the Plaintiffs i-eplied generally to the special pieas^ and issue was joined. At a subsequent Term, a Jury was sworn generally, and found a general verdict for the Defendant, and Judgment, from which the appeal was taken.
Many points were raised in the argument, but the case seemed to be considered as resting principally on two. 1. The correctness of the Court in setting aside the second award, and the order of reference. 2. In over-ruling the Plaintiff’s objection to the third special plea. x
Reasons for setting aside awards, are either for illegality x r injustice, aparent on their face, or for misbehaviour in the arbitrators.
The power being with the Court, we must enquire whether in this case it has been correctly exercised. The evidence on which the Court acted has not been brought before ns in a regular way, so
In Burton v. Knight, 2 Vern. 514, it was decided, that if arbitrators hold private meetings with one of the parties, and admit him to be heard, to induce an alteration of their award, this is such gross partiality, as to induce a Court of Equity to set aside the award. In Harris v. Mitchell, 2 Vern. 485, two arbitrators
With respect to the power of a party to revoke the authority of the arbitrators at any time before the award made, that question is not meant to be touched by this opinion. The last objection is, with resp'ect to the conduct of the Court in admitting the third special plea. It is admitted that there would have been no error in receiving an informal plea, to which the Plaintiff made no objection, because the Plaintiff might cither demur, or take issue. If he did the latter, a general verdict, (as there was here,) would cure the informality. But the Plaintiff here, did object. The question seems to be, to which plea? The Record says, the third special plea. There were four pleas; one general, three special. The Counsel for the Plaintiff, contends that the objection was to the plea of non-assumpsit within one year, because this is the third plea, and evidently a bad plea, while the pica of non-assumpsit within five years, is the fourth plea, and is well pleaded. But, the plea of non-assumpsit wilhin one year, though the third plea, is, not the third special pica, but the second only. The third special plea is non-assumpsit within five years, and this, though well pleaded, is the plea which the Record says was objected to. There is no other description of the plea in the objection, than the number, and that certainly leads us to the last. pica. I cannot therefore say, that the Court erred in overruling the objection, and upon the whole, think the Judgment must be affirmed.
Judge Grass, absent'.