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Crabtree vs. Green:
tion of the said plaintiff, and being situated on Hutchinson's Island, in the County of Chatham and State of Georgia aforesaid ; and I award and find that the plaintiff is entitled to recover and receive the said parcels of land above described, from the said defendant, William Crabtree, and to have judgment therefor, * 2d. I award and determine; that the said defendant, Wm. Crabtree, is not entitled to avail himself of the Statute of Limitations in reference to such land, or any part thereof.
3d. I award and determine, that the said plaintiff is entitled to recover and receive from the said defendant, William Crabtree, the sum of two hundred and thirty-three dollars, for the mesne profits of the said land, so in the possession of the said William Crabtree up to the present time, and to have judgment therefor.
4th. I award and determine, that all the costs (not including lawyers' fees,) attendant on and growing out of the said ejectment suit, or of the reference to arbitrators, or of this award, shall be ascertained and assessed by the Clerk of the Superior „Court of Chatham County, and that the said costs shall be paid by the said defendant, William Crabtree, to the said plaintiff, who shall have judgment therefor. * 5th. I award, that the plaintiff shall have liberty to use the legal means, and to take all necessary steps to carry into effect this
In witness whereof, I have hereunto set my hand, this tenth day of June, in the year one thousand eight hundred and forty-eight. In duplicate.
At the next term of the Court, a motion was made to set aside this award, on the following grounds:
1st. Because the arbitrators and umpire decided the case without having seen the role of reference.
2d, Because Dr. John A. Wragg assumed as facts proved by the records, matters which do not exist, either in the record, the documentary evidence, or in the parol testimony in the case. • 3d. Because said arbitraťor avers in his award, that all parties acknowledge that the canal or creek, as it now exists, empties itself into the river a considerable distance west of the eastern boundary of the land of J. Peter Ward, when no such acknowledgment was ever made.
4th. Because he avers that the diagram ännexed to Campfield's Crabtree vs. Green. testimony, is acknowledged to be incorrect in many particulars, when no such acknowledgment has ever been made.
51h. Because the said Dr. John A. Wragg only decided the western boundary, leaving the question of the northern boundary unsettled.
6th. Because Dr. J. A. Wragg, the arbitrator selectod by plaintiff, exhibited his award and that made by R. R. Cuyler, Esq. to the attorney of the plaintiff, before they passed into the hands of the umpire, A. Champion, notice being thus afforde I to said attorney that the umpire was about to act in the premises, the same knowledge being withheld from-defendant's attorneys; the first ijtimation of any action on the part of the umpire received by defendaut's attorneys, was the information that he had, made his award.
7th. Because Dr. Wragg, the arbitrator of the plaintiff, has based his award or decision on principles of equity and justice, when legal questions were alone submitted to the arbitrators. *Sth. Because neither of the arbitralors have decided the question of costs, as they were required to do by the rule of reference, and because the umpire has decided the same, when he had no right to decide any questions, except those on which the arbitrators had differed. > 9th. Because Aaron Champion, the umpire, undertook to decide the matters in dispute between the parties, without first giving notice to William Crabtree or his attorneys, and without examining any of the witnesses of defendant.
10th. Because the award of A. Champion, the umpire, denies to the defendant the benefit of the Statute of Limitations, without assigning any reasons therefor, and without examining the witnesses of defendant to sustain said plea.
11th. Because the award of said umpire is void, as it directs no conveyance to be made of the land awarded to plaintiff, and the award itself being insufficient for such purpose,
12th. Because the said umpire, in awarding the fee of the fifty feet of land set down in the plat accompanying his award, has given to plaintiff a right not claimed, he only claiming the use there. of, for the purpose of a canal, as is manifest from the whole testimòny in the case,
13th. Because the said umpire has not decided the right of the
Crabtree vs. Green.
parties to the improvements made by defendant on the land awar ded to plaintiff.
14th. Because said award is uncertain, as it does not define the metes and bounds of that portion of the Log Basin awarded to plaintiff.
· 15th. Because said award, in relation to all the land it professes to give to plaintiff is uncertain, insufficient, contradietory and unintelligible, and in no case sets out the land awarded by metes and bounds.
16th. Because said umpire has not decided, according to the rule of reference, all the legal questions that arose on the trial of the case.
17th. Because in said award there are palpable errors and gross mistakes, both in law and in fact.
On the hearing before the Court below, the following affidavits were filed;
John-Doe, ex. dem. Thomas Green, vs. RICHARD Roe, i. e. Wu. CRABTREE, tenant in possession. Ejectment.--Award by Aaron Champion, Umpire.
Personally appeared William Crabtree, the defendant in the above case, who, being duly sworn, says, that he was never notified by said Aaron Champion of the time and place, when and where he would proceed to investigate the said cause. That he, the said Aaron Champion, made his award without giving this deponent any opportunity, either in person or by bis attorneys, to appear before him, during his investigation of said cause, or to have his witnesses examined.. Sworn to before me, this seven
WM. CRABTREE. teenth day of June, 1848. FRANCIS SORREL, J. I. c. c.c.
Before me, personally appeared, Aaron Champion, who, being duly sworn, deposeth and saith, that he is the same person who acted as umpire in the ejectment case of Green vs. Crabtree, and deponent further saith, that after the arbitrators had disagreed, and he had been informed of that fact, and the papers containing the different statements of the arbitrators, embodying the verbal evidence, and also the other papers, had been placed in his possesCrabtree vs. Green. sion, deponent called on Captain William Crabtree, the defendant in said action, and apprised him that the papers had been handed: to him, and the whole matter was now submitted to bim for his final umpirage, and asked the said William Crabtree if he desired deponent, as such umpire, to re-hear the witnesses; to which the said William Crabtree replied, that he did not desire it, that he was satisfied that deponent should proceed under the written statements of the arbitrators and the other papers submitted ; and that thereupon and afterwards, the said deponent proceeded to determine the said case, and to deliver his award. Sworn to before me, this 17th
A. CHAMPION. July, 1848.
- Levy HART, J. P.
The Court overruled the motion, and the following errors bave been assigned:
- Ist. Because His Honor decided, that he must confine his decision to the exceptions which touch the award of the umpire, without reference to the acts, irregularitios or errors of Dr. Wragg, one of the arbitrators, and therefore, declined to decide the 2d, 3d, 4th, 5th, 6th and 7th exceptions made to the award.
2d. Because His Honor decided, that under the rule of reference, the decision of the umpire is not restricted to the points passed on by the arbitrators, and upon that ground, overruled the 8th exception.
3d, Because His Honor overruled the 11th exception, and deeided the award good, although it directs no conveyance to be made by Crabtree to Green.
4th. Because His Honor decided it was unnecessary for the award to be under seal,
5th. Because His Honor overruled the 10th exception, and thereby sustained the award, which denied to Crabtree the benefit of the Statute of Limitations, without assigning any reasons therefor, and contrary to the law of the land:
6th. Because His Honor overruled the exeeption, that the umpire examined no witness of defendant, to sustain the plea of the Statute.
7th. Because His Honor overruled the 12th exception, and thereby sustained the award, giving the
fee of the land to Green. 8th. Because His Honor overruled the 14th and 15th excep
Crabtree ye. Green.
tions, and thereby deciiled the award to be sufficiently certain, as to metes and bounds.
9th. Because His Honor overruled the 16th exception, and thereby decided that the umpire, by his award, has settled all the matters in difference between the parties.
10th. Because His Honor overruled the 9th exception, not withstanding the affidavit of Wm. Crabtree.
Couen and Law, for plaintiff in error, cited the following authorities :
Russell on Arbitrators, 257, 258, 411, 412, 460, 462, 113, Due er vs. Boyd, 1 Serg. 4. Rawle, 209. 2 Ball f Beatty, 120. 1 American C. L: 458, 464. Kent rs. Elstol, 3 East. 18. 2 Vesty, Jr. 17. Cowforth vs. Geer, 2 Vernon, 705. Williams, ex'r, vs, Paschals Heirs, 3 Yeates, 568. Bond vs. Olden, 4 Ycates, 243. Kel. ły vs. John, 3 Wash. C. C. Rep. 45. Hunt rs. Hunt, 1 IVash. C. O. Rep. 58, et sey't. Falconer es. Montgomery, 4 Dall. 233, 271. Russell on Arbitrators, 230. Johnson vs. Lancaster, 5 Kelly, 45, et seq't. Watkins vs. Wolfolk, Ibid, 268. Doe, et, dem. Madkins & Long v8. Horner f: Roupell, 8 Adol. 8 Ellis, 235. Dodington vs. Hudson, 1 Bing. 382.
CHARLTON and WARD, for defendnat in error, cited the following authorities :
Watson on Awards, 59, Law Library, 100, marginal pagé. Jackson vs. Gager, 5 Cowen, 386, '7. Watson on Awards, 59. Law Library, marg. p. 128, 289. Payne vs. Massey, 9. J. B. Moore, 666. 17 Eng. Com. Law Rep. 129.“ Watson, marg. p. 284, '5. Kyd on Awards, 114, 115. Russell on Arbitrators, marg.po 631. 1 Peters' S. C. Rep. 228. Watson on Awards, 59, Law Library, marg. p. 134, 176 to 179, 202. Russell on Arbitration, marg. p. 258. Hall vs. Lawrence, 4 Term Rep. 589. - Tunno vs. Bird, 27 Eng. Com. Law Rep. 111. Sharp vs. Lipsey, 2 Bailey's Rep. 113. Russell on Arbitrators, marg. p.71."
By the Court.-NISBET, J. delivering the opinion.
Upon a motion to set aside the umpirage in this case, some sey