When this subject was first started, I was rather inclined to be in opinion with my brother Hall, that arbitration notes, as they are styled, are not in themselves void, but merely voida* ble; that when a suit is commenced upon such note, the defendant under the general issue must first shew that the note declared upon is of this nature, and then may be let in to impeach the submission, the conduct of the parties and of the arbitrators, the award— every circumstance relative to the transaction; But. if this doctrine has been done away by repeated decisions, as stated by the Chief Justice, I should think it my duty to acquiesce in such decisions, although none such ever came to my knowledge, and such decisions must.have been made before I had the honour of a seat on this bench.
Witnesses were now sworn, who established the facts substantially, as stated by the leading counsel for the plaintiff.
The Chief Judge, in his charge to the Jury, ob* served, that the note was prima facie evidence of a legal demand by plaintiff against the defendant; that there were two points made in the defence:
Israel Smith and Darius Chipman, for plaintiffFirst. That it was an arbitration note, and as such not recoverable by law.
Secondly. That if recoverable as an arbitration note, yet there were circumstances attending the arbitration which inhibited the plaintiff from recovering.
If they were convinced this was an arbitration note, they must find a verdict for the defendant; for it had been decided before and since he came upon the bench, that such notes are in themselves void, there being no legal consideration in them.
As to the second point, he believed the Jurors would have no occasion to malee it the subject of their inquiry. If, however, they inclined to consider it, they had heard the evidence, and might apply it to the cause.
Verdict for defendant.