Shult v. Travis , 1 Sneed 140 ( 1802 )

It seems to the court that the first, second, and sixth errors, ■assigned do not exist, and that the fourth, fifth, and seventh are not material. So that it only remains to decide on the third, as: deserving of more particular attention, it is as follows: copies of the award on which this judgment is founded were not delivered to the parties. From the act concerning awards, several things are required of arbitrators either expressly or by implication, which neither that act nor the general principles of law require to be stated in an award such as issuing subpenas for witnesses on application of either of the parties, giving notice to the parties or their agents of the time and place of meeting to hear their allegations and testimony, delivering copies of the award to each of the parties, etc. And yet the omission of any of them may be sufficient cause of objection to making the award the judgment of .the court to which it is returned. From these considerations the inference is rational, that when an award is returned to the court 'then is the proper time to make such objections; and that on an ■appeal or writ of error to reverse the judgment of the court entered up thereon, an objection of the kind can be of no avail unless it appears from a bill of exceptions that the objection was well founded, and unjustly overruled by the court below. This inference is further evinced by that clause in the act which prohibits an award from being validated unless it shall be made to appear to the court below that it was obtained by corruption, evident •partiality, or any other undue means. And to these considerations might be added, that matters of fact can not be contested in a court of revision, in any case which is not expressly permitted by law, therefore it seems proper to presume that on an appeal from a writ of error on a judgment founded on an award, that all the proceedings of the arbitrators were satisfactory to the parties; or that any objections thereto which might have been made had been waived by them, where the contrary does not appear from the record. Provided, however, it appears from the award that ■the arbitrators were sworn as the law requires, to give them jurisdiction of the cause; and that the parties or their agent's had notice of the time and place, or were present when the award was made, to give them an opportunity of knowing when it would be returned to court. Therefore, it is considered by the court, that the judgment aforesaid be affirmed, that the defendant may proceed to have the' benefit of the same in the court below, and recover of the plaintiff ten per centum damages on the amount thereof, together with his costs in this behalf expended, which is ordered to be certified to the said court.