Shephard v. Watrous

Per curiam, delivered by

Thompson, J.

The present application for a new trial is made on three grounds. 1st. The want of consideration for the note on which the action is brought. 2d. That it was obtained by oppression and undue advantage. 3d. That the judge at the circuit excluded testimony which ought to have been admitted.

The want of consideration cannot be objected against the pote. There was an. agreement between the parties to submit to arbitration, a matter in controversy between them. Kyd on Awards, 7. 1 Ld. Ray, 248.* Though this agreement was by parol, there can be no doubt but it was a good submission, and binding on the parties. We are to intend that a counter note was given, as no objection on that ground was made at the trial, and the agreement to submit was fully shewn. The note in question may be considered as the award of the arbitrators. It was conditional when made and put into their hands, to become consummated by their decision of the matter submitted ; and by such decision, it has become absolute for the payment of the money awarded to the plaintiff. The consideration, if any was necessary for the submission, was the discharge of the defendant from the arrest.

The second objection is equally untenable. Nothing is shewn in the case, that looks like oppression, or undue advantage. It is true, the defendant was under an arrest; but that of itself could not have been enough to avoid his acts, even had there been a final settlement, which, however, was not the case. There was only an agreement to submit the matter upon which he was arrested, to arbitration; the merits of which controversy, he had the right of contesting before the arbitrators.

With respect to the third point, we think the testimony properly overruled. The evidence offered was respecting the original cause of action, which had been submitted to, and determined by the arbitrators, with a view to open the whole merits of the controversy. This was certainly inadmissible. There is no rule better settled, or more consonant to good sense, than that which precludes parties from litigating on the original subjects of dispute, which have been fairly and legally submitted to judges of their own choosing, and an award made pursuant to such submission. Kyd 242. 1 Esp. Rep. 378.* There are, however, exceptions to this rule, as where there have been some corrupt practices, or improper conduct on the part of the arbitrators. Nothing of that being presented in this case, we think the award final and conclusive. The opinion of the court therefore is, that the defendant take nothing by his motion, and that the plaintiff have judgment.

* Freeman v. Bernard.

* Bailey v. Lechmere.