Cleary v. Coor, 2 N.C. 258, 1 Hayw. 258 (1795)

Sept. 1795 · North Carolina Superior Court

2 N.C. 258, 1 Hayw. 258

NEWBERN,

SEPTEMBER TERM, 1795.

Cleary v. Coor and Hawks.

An entry "referred to A, B & C,” means a general reference of the cause, .nd not merely to audit ,.nd s¡ate the accounts. The award of arbitrators ought not to be set aside, unless in case where their decision is plainly and grossly against law ; not where the point decided might be doubtful.

This was a suit in Equity, to which the Defendant pleaded; and afterwards then1 was ati entry in these, words, “ Referred to A, (i & C.” Upon this th‘* re-fortes met, and returned an award — exceptions were, fif'd on the part of the Plaiuiiff: and at the last term anile to shew cause, why the award should not be confirmed was eon red on the record. And now at this term, Davie for the Plaintiff, insisted the referees were not appointed to act as arbitrators, but to state the account ; and that they had mistaken their powers. Per curiam, if the Intent had been to refer to them to audit and state the accounts, it would have been so mentioned, especially as there was a Master whose business it was to make such statement: neither would the court have ordered an ar-count to be taken, before the plea* wc-c argued or put to issue, and tried. Indeed by the last en ry, this seems to haw* been considered as an award by the counsel on both sides, who have mentioned it as an award. Davis then insisted, that this award ought to be sét asid bring against, law ; for ihai the arbitrators iiad allowed Coor a considerable sum for Ids service» as an administrator (this was admitted by Coor, now present in court, th at is to say, h“ admired they allowed ion per cent, in ’Ir- year 1779. upon the value of the goods in 1776,-which came to «hour an half per cent- or ,<m shillings on the real vahic) and he cited BL Hep 363. 3 Mk 494.

The court took time to consider, and having had before them, 1 Atk 64. Jacob, Verbo Arbitrators. 2 Brown 701. 1 Brown 271. 1 Stra. 301. Salk. 71, pl. 4—83. pl. 1, they next, morning decided, that the -award of arbitrators ought not t" be set aside, unless in cases where their deei-ion is plainly and grossly ugains- law —not where the point decided might he doubtful. In the present case, although no such allowance ought to he made by the strict rules of law, that is a point not universally known arid dear; but the contrary is practised in almost all the County Courts in this State, hat is to say. the County Courts generally make such allowances Let the award be confirmed.

Note. — Vide Jones v. Frazier, 1 Hawks 379.