Davy's Executors v. Faw
11 U.S. 171

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U.S. Supreme Court

Davy's Executors v. Faw, 11 U.S. 7 Cranch 171 171 (1810)

Davy's Executors v. Faw

11 U.S. (7 Cranch) 171

ERROR TO THE CIRCUIT COURT

OF THE DISTRICT OF COLUMBIA

Syllabus

An award will not be set aside in equity on account of an omission by the arbitrators to act upon part of the matters submitted unless that omission shall have injured the complainant.

That judges chosen by the parties themselves, as well as those 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 of being 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 ascribed to him on account of difference of opinion with respect to the decision he has made.

When the price of land, and not the question of title, is submitted, the submission and award need not be by deed.

This case seems to be sufficiently stated in the following opinion, delivered by MR. CHIEF JUSTICE MARSHALL on 9 March, all the judges being present.

This is an appeal from a decree of the Circuit Court for the County of Alexandria, sitting in chancery, by which that court set aside an award made between the parties, and directed an account.

Page 11 U. S. 172

The bill impeaches the award because

1. The arbiters exceeded their power.

2. They made no award with respect to a part of the matter submitted to them.

3. They were partial, and proceeded to make their award without hearing the party against whom it was made.

The arbitration bond binds the parties to submit to the award, order a arbitrament of Francis Peyton, Theophilus Harris, and Thomas Herbert, or any two of them, respecting a controversy of several accounts and contracts existing between them.

A judgment at law has been obtained for the amount of the award, for relief against which and against the award itself this suit was instituted.

By the plaintiffs in error it is contended that excess of power in arbiters is a defense at law, and is therefore not examinable in this Court.

That the injured party may avail himself of this defense in a court of law where the excess of power is apparent on the face of the award is not controverted. But in this case it is not shown by the award itself, and the defendant insists that he was not at liberty in a court of law to avail himself of evidence dehors the award, and in support of this opinion the case of Wills v. MacCarmick, 2 Wilson 149, has been much relied upon. Without deciding that question, the Court will proceed to inquire whether the defendant in error has succeeded in proving that in this case the arbiters have in fact exceeded their power.

It appears that Abraham Faw sold to David Davy a lot of ground, the purchase money for which was payable in four years in four equal annual payments. Davy conveyed to Faw, about the same time, a lot which he had purchased from Elisha C. Dick, and which he held on the condition of making certain improvements. Davy becoming insolvent, it was agreed that his contract

Page 11 U. S. 173

with Faw should be annulled, that the bonds he had given Faw for the purchase of the lot should be returned to him, and that he should surrender the bond for a title which Faw had executed. It had been stipulated that in the event of his failing to pay the purchase money and of the contract's being avoided, the money actually paid by Davy to Faw should be considered as rent so far as rent was allowed. There had been some other dealings between the parties, and there had been a small piece of ground rented to Davy on which he had put some inconsiderable improvements.

In this state of things, they agreed to submit their affairs to arbitration, and the bond was executed which has been stated. The arbiters awarded that Faw should pay Davy

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