Friday, March 9. 1. Although, upon a de vidence, the testimony ad Harrison against Brock. THIS was an action of assumpsit in the County Court of murrer to e- Amherst, by Josiah Harrison against Joseph Brock, for the carriage of tobacco and other produce by the plaintiff, a sides ought waterman, for the defendant, at his special instance and request. The declaration was filed in May, 1799; a comif it be parel mon order against the defendant, for want of appearance, duced on both regularly to be stated, yet, and contradic. tory, the par- confirmed, and a writ of inquiry awarded, at June Rules, ty tendering the demurrer 1799, but afterwards set aside at May Quarterly Court, cannot, after testimony, other party to this, in effect, exhibiting his 1800, on the motion of the defendant, who pleaded “arcompel the bitrament and award;" (in those words only;) to which the join in de plaintiff replied generally, and the cause was continued at murrer; for the defendant's costs. At the ensuing November term, the would be to defendant pleaded non assumpsit," in addition to his former murrant to plea," and issue being joined, a Jury was empannelled, but bility on his could not agree. In August, 1801, and May, 1802, verown witnesses, or at least to dicts were successively had for the plaintiff, but new trials carry their awarded. enable the de confer credi credibility to be adjudged by an impro At August term, 1802, a fourth Jury having been per tribunal; sworn, the defendant demurred to the plaintiff's evidence, the Jury, and not the Court, stating in his demurrer, "that on the trial of this cause it being exclusively judges was proved that, some time about the 3d of August, 1798, of credibility. the defendant was indebted to the plaintiff in the sum of 2. An award 371. 8s. 3d. for the carriage of tobacco and other produce; made pendente lite, cannot that on the day aforesaid, the plaintiff made application for be given in evidence up- payment thereof to a certain William Stevens, who was facon the plea of non assumpsit. tor and storekeeper for the defendant, who was a mer3. The plea chant. Payment in money was refused; but Stevens told of arbitra- the plaintiff that he had a promissory note executed to the award" (in so said Stevens by a certain Samuel Holt, for the sum of 49% many words) ment and is a mere nul lity, and no evidence should be received to support it, notwithstanding the plaintiff replied generally. 4. A judgment ought not to be reversed on the ground that the Court, at the instance of the party against whom it was rendered, admitted improper evidence, or erroneously compel ted the other party to join in a demurrer to evidence." Os. 3d, dated 11th May, 1798, and payable sixty days after date, with interest from the date if not punctually paid, and proposed trading the same to the plaintiff. Harrison agreed to take the whole of said note in payment; this was refused by Stevens; but it was at length agreed that Harrison should take the said note in payment, and execute his notes to Stevens for the difference between the said note of Holt and his claim against the defendant. Harrison accordingly executed two notes bearing the same date aforesaid, to the said Stevens in his own right, and not as agent, for 5. 19s. each. The note on Holt was then delivered to the plaintiff, and an entry was made by Thomas Woodroof, another agent and storekeeper for the defendant, in the books of the said defendant, by which Harrison was charged to the said Stevens for the amount of Harrison's claim against the defendant, and Stevens was credited for the same, and the said Harrison's account was balanced, which said entry was read to the plaintiff by the said Woodroof, who asked the plaintiff if he agreed to it, and he replied he did. These facts were proved by Thomas Woodroof alone, who also said that, at the time of the trade aforesaid, the note executed by Holt was not due, and that he the said witness was present, and heard the whole of the conversation relative to the said trade. Some short time afterwards Harrison presented the note to Holt for payment, which was not made. He immediately returned to Stevens, and wished him to take back the said note, which Stevens refused, alleging it was a fair trade. Holt was believed by many to be insolvent at the time of the trade aforesaid, and it was proved that Stevens himself believed him to be so, but at the time of the trade told Harrison he expected he would get the money upon application. It was also proved by a certain William Shelton that, some short time after the trade aforesaid, he was at the store of the defendant, when a dispute arose between the plaintiff and the said Stegens; that, on hearing them, he found that they differed as to facts; that he called upon the said Woodroof above mentioned to MARCH, 1810. Harrison V. Brock. 1810. Harrison V. Brock. MARCH, know if he was present, and heard the contract as to the note aforesaid; he then said he was not present the whole of the time, but was present when the entry aforesaid was made. Shelton also deposed that, previous to the trade aforesaid, he had told the said Stevens that Holt was insolvent. It was further proved that, some time afterwards, Harrison, the plaintiff, applied to the said Stevens, and told him that, if he would not take back the said note on Holt, he must assign it to him, WHICH HE POSITIVELY REFUSED. It was also said by the said Shelton, who had been long in the mercantile line, that it is not usual for merchants to call their customers to their day-books after making entries, and read the entries over, and ask them if they agree to the same. It was also proved by the said Shelton, that the said Stevens was to receive a liberal interest for all sums lent the defendant. It was also proved that the defendant had no personal agency, and no knowledge of the trade of the note aforesaid." The demurrer farther stated, "it was proven by the defendant, that the matters in controversy in this suit were submitted to the determination of John Wyatt, William Ware, and Reuben Norvell, or any two of them, by an agreement entered into in the following words and figures, to wit: Whereas a dispute hath arisen and is now depending between Josiah Harrison, of the County of Amherst, of the one part, and Joseph Brock, of Orange County, of the other part, respecting the payment of a bond by William Stevens, as agent for the said Joseph Brock, which bond was payable from Samuel Holt to said William Stevens; now, for the ending and deciding thereof, hereby it is mutually agreed by and between the said parties, that all matters in difference between them shall be referred and submitted to the arbitrament, final end and determination of John Wyatt, William Ware, and Reuben Norvell, or any two of them, arbitrators indifferently elected by said parties, so as the said arbitrators, or any two of them, do make and publish their award in writing ready to be delivered to the said parties, 1810. V. Brock. or either of them, who may desire the same, on or before MARCH, August Court next ensuing. And it is hereby mutually agreed by and between the parties aforesaid, that this sub- Harrison mission shall be made a rule of the County Court of Amherst. In witness whereof, the parties to these presents have hereunto set their hands this 28th day of June, 1799. Josiah Harrison, (seal.) William Stevens, for Joseph Brock, (seal.) That two of the said referees did proceed to make up an award in the following words and figures, to wit: "We, the subscribers, mutually chosen by the parties to decide and determine a certain matter in dispute, between Josiah Harrison, of the Connty of Amherst, of one part, and Joseph Brock, of the County of Orange, of the other part, respecting a bond due from Samuel Holt to William Stevens, and which said bond was by the said Stevens given in payment of a debt due from the said Brock to the said Harrison, after maturely considering the testimony adduced, are of opinion, and do hereby award, that the said bond was received in payment, and ought to go (without recourse) to the extinguishment of the said debt. Given under our hands this 30th day of June, 1799. John Wyatt, Reuben Norvell;" which was duly delivered to the parties. The said award was made in the presence of both parties, both parties agreeing to the trial, and after hearing the testimony offered by each. It was proven by one of the arbitrators that, at the time of making up the award aforesaid, the plaintiff and the said Stevens, who was agent for the defendant, differed in their statement of facts; the plaintiff alleging, that there were certain facts known to the said. Stevens, which he could not deny if upon his oath. The arbitrators had then made up their opinion upon the subject, as expressed in the award aforesaid, but had not actually signed the award; but, to satisfy the plaintiff, examined the said Stevens on oath, previously observing to the plaintiff, that nothing that Stevens should say in favour of Brock should have any effect, but that, if he said any thing in favour of Harrison, it should be attended to. It was 1810 Harrison V. Brock. MARCH, proven further by one of the arbitrators, that no impression was made on their minds by the examination of the said Stevens, but that they made up their award on the other testimony adduced by the parties; and that the principal cause which induced them to render the award aforesaid was, that evidence was produced to them to shew that Harrison preferred the debt on Holt to his debt from the defendant, inasmuch as he, the said Harrison, believed that the circumstances of Holt were better than those of Brock. It was proved that the attorney, who appeared for the plaintiff before the arbitrators, objected to the examination of the said Stevens as being illegal, but they did proceed to examine him merely to satisfy the plaintiff himself." 1 he plaintiff objected to joining in this demurrer, alleging, "there was a contradiction and clashing of evidence, and that the weight of said evidence and circumstantial proof ought to be determined by the Jury; which objection was overruled by the Court, and the plaintiff compelled to join in the demurrer, because it appeared to the Court that the facts adduced in evidence were fully and fairly stated in the demurrer;" whereupon the plaintiff filed a bill of exceptions. The Jury found a verdict for the plaintiff for 517 5s. 6d. damages, subject to the opinion of the Court upon the demurrer. At March Court, 1803, (the demurrer being argued,) the Court gave judgment for the plaintiff; but, upon a writ of supersedeas, this judgment was reversed by the District Court holden at Charlottesville; the reason assigned being, "that the award made between the parties should have been considered as final and conclusive;" and thereupon the plaintiff appealed to this Court. Munford, for the appellant. The County Court ought not to have ruled the plaintiff to join in demurrer; the evidence offered by him being parol and circumstantial, and testimony to contradict it being adduced by the defendant, instead of admitting its truth as he ought to have |