Page:United States Reports, Volume 1.djvu/325

314 

1788.

exceptions were filed, and argued on the 12th of July, by J.B. M‘Kean, Lewis, and Ingerʃoll for the Defendant ; and Sergeant and Coulthurʃt  for the Plaintiff:

1ft, That the Referrees heard the Plaintiff's witneffes ex parte.

2d,That they heard the Plaintiff ex parte, without giving notice to the Defendant.

3d,That they have allowed intereft upon an unfettled account.

4th, That they refufed to allow a fet off.

5th, That the Defendant has difcovered new and material teftimony fince the report.

6th That the Referrees allowed a charge for Premium and Commiffions in making an Infurance for the Defendant, without requiring the Plaintiff to produce the policy, or having any other proof that the Infurance was effected, than a letter from the Plaintiff himfelf to his Partner in Philadelphia, in which he fays he has done it.

As the  in delivering the opinion of the Court, adverted to thofe exceptions which were groundlefs, or immaterial, and ftated thofe particularly on which their decifion was formed, I fhall avoid recapitulating the arguments of counfel, and only fubjoin the authorities on both fides.

M‘KEAN, Chieƒ Juʃtice.– There are four fpecies of Awards: firʃt, thofe made by mutal confent, in purfuance of arbitration Bonds entered into our of Court ; ʃecondly, thofe which are made in a caufe depending in a Court of Law or Equity, upon the confent of the parties to refer the matter in variance (which are awards at common law) thirdly, thofe which are made under a rule of Court, by virtue of the ftatute of 9 and 10 W. 3. c. 15. which was calculated to remedy the delay and circuity of action attendant upon Awards made merely in purfuance of arbitration Bonds, without the intervention of a controuling power,to compel the acquiefcence of the parties.– Thefe are the only Awards in ufe at this day in England ; but the Legiflature of Pennʃylvania, in the year 1705, introduced another fpecies here, which are fourthly, thofe awards, or reports, that are made in purfuance of the act of Affembly fetting forth, that ‘‘ where the Plaintiff and Defendant confent to a rule

‘‘ of Court for refering the adjuftment of their accounts to certain

‘‘ report, of fuch Referees, being made according to the fubmiffion

‘‘ of the parties, and approved by the Court, and entered upon the re-

‘‘ cord, or roll, fhall have the fame effect, and be as available in

‘‘ law as a verdict by twelve men.’’ 1 State Laws 48. 4 ''Ann. c.'' 36.

This act differs effentially from the ftatute of W. 3. in many refpects, but particularly, that to render a report, or award, valid and effectual, the former requires, that it be approved by the Court; but no fuch provifion is made by the latter, and, therefore, awards under rules of Court, are conclufive in England, unlefs fome  tion,