Ligon v. Ford

5 Munf. 10 | Va. | 1816

The president

delivered the opinion of the court.

“ The court is of opinion, that the parties having by consent, “ submitted all matters, in difference between them in this suit, “ to the decision of the arbitrators in the proceedings mentioned, the principal of which matters was the amount of the “ damages, which the appellee ought to recover from the áppellant; that submission precluded the appellant from contending, that the amount of those damages was conclusively set tied by the verdict rendered in the cause, and is a waiver of “ the objection, that greater damages are given by the award 5 “if that objection would otherwise have been available; according to the spirit of the decision of this court, in the case “of Brickhouse v. Hunter Banks, & Co. 4 H. & M. 363.”

“ The court is further of opinion, that, in trying the question “ submitted to them, comprising as well the fact complained of “ by the appellee, as the amount of damages thereby alleged to “ have been incurred by the appellant, the arbitrators ought “ to have received the evidence, stated in the third and fourth “ exceptions to have been offered, and rejected 5 and that the “judgment of the Superior Court is also erroneous, in having “ refused the appellant permission to shew, if he could, that “ such testimony was offered to, and rejected by, the said arbi-trators.”

“The judgment of the Superior Court is, therefore, revers- “ ed with costs, and the cause remanded, for the purpose of let- “ ting in the testimony last mentioned, (or testimony corres- “ ponding with that comprised in either of the said exceptions) “ if offered ; which testimony, if given, is to vacate the said “award; and the Superior Court is thereupon to award a new “trial, of the issue, before a jury; and, if no such testimony “ shall be given, that then, and in that case, the said award “ shall stand good, and judgment be rendered thereupon, in “ favour of the appellee.”