Campbell v. Western

The Chancellor. Before I proceed to examine the merits of the bill as between the real parties in interest, it may be proper to notice one or two objections which apply to the defendants Western and Lowndes, exclusively. It is said neither of them were necessary or proper parties, and that the bill as to them was properly dismissed, with costs, whatever might have been the opinion of the court as to the rights of the complainants as against Depew. This objection as to Western is unquestionably well taken. There is nothing in this case to show that he has ever done any thing except as the attorney in the cause, or that he has done any thing more than it was his duty to do as such attorney. If he, in behalf of his client, made use of arguments before the referees or the court which will not bear the test of legal scrutiny, it can form no ground whatever for making him a party here, and subject [136] ing him to the expense of defending a chancery suit. The complainants have proved that they acted under the advice of counsel, throughout. And it is not pretended that such counsel was not as competent to understand and protect their rights as Western was to defend the claims of their adversary. I can conceive no motive for making the attorney a defendant in this case, unless it was to deprive his client of the benefit of his testimony, if it should be needed. The decision of the vice chancellor was therefore correct in dismissing the bill as against him, with costs. As the judgment was in the name of the sheriff, he was properly made a party to a bill to set it aside, although he might have no personal interest. And if he is subjected to costs in consequence of an improper proceeding being carried on in Ms name, he must look to the party whom he has permitted thus to use his name for his indemnity. As the judgment on the cognovit is against the bail in the replevin bond, as well as against the complainants, they should also have been parties to the suit; otherwise the defendant Depew may be compelled hereafter to litigate with them the same questions which he is now contesting with their co-obligors in the bond. (Bailey v. Inglee, 2 Paige’s Rep, 278.) The first ground taken by the complainants in this case is, that they acted under a mistake by supposing this was a reference under the statute, and that it was not in the nature of an arbitration. This ground, however, is not sustained by the proof in the cause. The solicitor who drew the bill in this case was their counsel throughout, and swears he advised with them at the time the agreement was made to refer the question of title. And the papers signed by him and his clients at that time, show that he could not have been so ignorant as to suppose this was a simple reference of accounts under the statute. He must have known that the judgment for the defendants in' the replevin suit would preclude all inquiry as to the right of property in the suit on the replevin bond, unless the parties prosecuting the last mentioned suit made a special agreement to submit a question to the referees which could not be legally raised on the trial of that cause. The cause stood for argument [137] on a demurrer, at the time of the reference. And no lawyer could be so'ignorant as to suppose that was a proper case for a reference under the statute, although it might be a proper case for an arbitrator to decide upon. I cannot find a particle of testimony in this case to induce me to suppose that the complainants and their solicitor did not understand what the legal effect of this agreement was, at the time it was entered into, as well as they do now. And in the absence of all proof to the contrary, I must presume neither party was acting under any mistake on that subject. As to the referees, I also presume they decided the question, as to the admissibility of the witness, according to their honest convictions as to what was right and proper. If such was the case, they probably would have made the same decision if they had known that, their decision of the question would be final. If tlie rule of reference was not in conformity to the agreement, the complainants should not have proceeded under if, but should have applied to set it aside. 1 cannot see, however, that the variance from the stipulation was at all material, as all the referees actually signed the award. An arbitrator who has signed an award with his co-arbitrators cannot be al-' lowed to contradict this solemn act, and to say that he did not concur in it. The signing of the report was an actual concurrence therein. And arbitrators are not permitted to make mental reservations, in opposition to the written evidence of their decisions, any more than a juror who has concurred in a general verdict would be permitted to swear he was not convinced it was right. I do not understand the rule to go so far as to require that all the arbitrators should concur in the decision of every question which arises, as to the admission or rejection of every piece of evidence, on the hearing of the cause. It is sufficient, if all actually hear the cause and join in the award which is finally made. There was nothing objectionable in relation to the conduct of either of the referees, unless it be an objection that they made a mistake in their judgment upon the law, or the facts, of the case. One of the parties applied to Mr. Ostrander, whom he had seen once or twice only, but with •whom he had no particular acquaintance, and asked him if he [138] would consent to be an arbitrator in the cause. It was perfectly natural, under such circumstances, that he should enquire as to the general nature of the controversy in relation to which his services were wanted. It is what usually occurs in such cases. And I presume the same explanation took place between the complainants and the arbitrator selected by them, unless he had previously been informed as to the nature of the litigation. The simple question, therefore, which is presented in this case, as to the validity of the award, must be, whether a mere mistake in judgment of the arbitrators upon a legal question, as to the admissibility of a particular witness, in a case admitting of some doubt, at least, is sufficient evidence of improper conduct in the arbitrators to set aside their award in a court of chancery. If such is the law of this court, then indeed is the right of parties to submit their differences to arbitrators a curse, rather than a blessing. If every party who arbitrates, in relation to a contested claim, to save trouble and expense, is to be subjected to a chancery suit, and to several hundred dollars cost, if the arbitrators happen to err upon a doubtful question as to the admissibility of a witness, the sooner these domestic tribunals of the parties’ own selection are abolished the better. Such a principle is wholly inconsistent with common sense, and cannot be the law of a court of equity. There is, therefore, nothing in the proceedings before the arbitrators which could justify any court in setting aside those proceedings for fraud, or improper conduct, or any other irregularity. If the testimony of Wheeler had been admitted, and he had testified as he has done in this cause, the result probably must have been the same ; as his testimony.is wholly inconsistent with that of several other witnesses, and parts of it are inconsistent with the admissions of one of the complainants, as proved by the defendants. I think the balance of the testimony is in favor of the belief that these complainants had indiscreetly permitted Wheeler to use their names to carry on business in such a manner as to keep his property out of the reach of Depew’s execution; and the result to them has been, what generally occurs in such cases, that they have been drawn into this ruinous litigation without any personal benefit; and [139] which litigation they have persisted in as indiscreetly as it was originally commenced. I am satisfied the decree of the vice chancellor in this cause was perfectly correct, and it must be affirmed, with costs.