American Central Ins. Co. v. Landau. thus given to the referees to fix the price, was an authority which the Messrs. Pope might revoke at law; and, as they have revoked it, the power of the arbitrators is completely destroyed at law. The plaintiffs then apply to this court to restrain the commissioners from taking possession of the wharf and pulling down the buildings upon it; but neither in the bill nor in the affidavit in support of the motion is any sufficient reason stated for revoking the authority of the arbitrators. The affidavit alleges, not that the plaintiff's had just grounds, but, merely, that they considered that they had just grounds for being dissatisfied with the conduct of the arbitrators; and, in my opinion, that mode of allegation is not sufficient to induce this court to interfere." Then, after referring to Harcourt v. Ramsbottom, he says: "I observe that, in Morse v. Merest, Sir John Leach, vice-chancellor, states that in equity a defendant is not permitted to set up a legal defence which grows out of his own misconduct; so, varying the terms of the proposition, I say that a plaintiff is not at liberty to ask the aid of a court of equity in respect of an act done by him against good faith. And as, in this case, there is nothing whatever to show that the power which the plaintiff's had given to the arbitrators was revoked upon any just or reasonable grounds, I am bound to conclude that the revocation was a wanton and capricious exercise of authority on their parts, and consequently the motion must be refused." I think the circumstances of the case show that it is highly inequitable for Landau to repudiate this award. There is no authority for the position that both appraisers must attend before the umpire after the disagreement. Not only the Doying Case, but many others hold the contrary. Carpenter v. Wood, 1 Metc. 409; Crofoot v. Allen, 2 Wend. 494; Maynard v. Frederick, 7 Cush. 247. See Morse Arb. 154, 156. At p. 156 he says: "Russell lays down the same rule as constituting the law in England. 'Under such a submission,' he says, using the very language of the court in the cited case of Dalling v. Matchett, 'it will be sufficient for any two of the arbitrators to act jointly, though the third from obstinacy, or the desire of a party or business, or any other cause, absent himself from the meetings, provided he have full notice and opportunity of being present at them if he please, and be not kept away by any practice of the other American Central Ins. Co. v. Landau. arbitrators or of the parties. Otherwise it would be in the power of one of the parties to trick the other and entirely to defeat him of the benefit of the reference.' This latter remark, it has been said in a Massachusetts case, 'would apply more strongly where one of the referees should withdraw after the hearing before all of them.' After a submission has once been entered into, it is not in the power of one of the arbitrators to annul or avoid the agreement by withdrawing from the trust." And see statement of the rule, with the authorities collected, in the opinion of the court of appeals of New York, in Bulson v. Lohnes, 29 N. Y. 291 (at p. 293). After the decision of Crofoot v. Allen, a statute rendered it necessary that all the arbitrators should be present at the hearing. But it is further urged by counsel for Landau that the conduct of Atherton in withdrawing from the appraisement was not in accordance with his wish, nor done in his interest, and that the result of the withdrawal was that he lost the benefit of Atherton's presence at the appraisal and his influence upon the other appraiser and umpire. I do not think the evidence in the case warrants the conclusion that Mr. Atherton's withdrawal was against the consent of Landau and not done in his interest. But granting the truth of Landau's contention in that respect, it seems to me that his remedy for this deprivation was quite clear. As soon as Atherton formally withdrew and resigned, which was on the afternoon of October 5th, the day of the second meeting between the two appraisers, Landau should have at once appointed another appraiser to act in his place, and demanded of the insurance companies that such nominee should appear in his behalf before the other appraiser and the umpire; or, it may be, that he would have the right. to ask that the new appraiser so appointed by him should first attempt to agree with the other appraiser, Winchester, before the intervention of the umpire. The propriety of this course seems to me to spring from the character of the contract in the policies of insurance. I am unable to accede to the proposition that the rights of either party to have the appraisal proceed and the loss ascertained in the mode specified in the contract could be affected or destroyed by the refusal to act at so late a day of either of the appraisers so appointed. American Central Ins. Co. v. Landau. It is quite plain that Mr. Landau was not at any time acting. unadvisedly, for, as already stated, it appears that when Atherton. and Winchester appeared at his office on the morning of October 5th he anticipated a disagreement and probably also the withdrawal of Atherton and the intervention of the umpire, for he asked Winchester why he, Winchester, was not willing to have as an umpire some good man in Paterson instead of going to New England for one; and he had ample time between the 5th, when Atherton withdrew, and the 10th of October, when Winchester and Manning appeared, to consider the situation and to offer to appoint another appraiser in the place of Atherton. If he had made such offer to the insurance companies and it had been refused, a different question would be presented. In making this suggestion I have not overlooked the consideration that such a proceeding might be abused by a party seeking to make trouble. I do not intend to suggest that the appointment of a new appraiser would oust the jurisdiction of the umpire and result in any retrogression. I confine it strictly to giving the party, whose appraiser has deserted him after the umpire is appointed, the benefit of having a representative present when the appraisal is actually being made, with opportunity to influence the result. The objection taken by the answer to the competency and impartiality of Messrs. Winchester and Manning was substantially abandoned at the hearing. Their examination on the stand was a complete vindication. Winchester was bred a machinist, and carried on the business of manufacturing and selling machinery for years. He had acted as appraiser of fire losses to machinery in many instances, sometimes acting alone, and sometimes being chosen as appraiser by the insurance companies and sometimes by the sufferers from the fire loss. He was not especially skilled in silk machinery, but had seen it and posted himself by visiting a large factory of that kind of machinery in Stonington, Connecticut. It is to be remarked that the machinery covered by these policies was simply a throwing plant, that is, a plant which takes raw silk after it is wound from the cocoon and reeled into hanks, and doubles and twists it into silk threads of varying size and strength, according to American Central Ins. Co. v. Landau. the needs of the dyer and weaver. It is not even a spinning plant, in the proper sense of the term, because it does not elongate the fibre by drawing it out, as is done in the case of wool and cotton, but it simply reels and twists it. The words "throw" and "throwster" mean "twist" and "twister," and a throwing plant is merely a twisting plant. Samples of parts of the machinery were offered in evidence on the question of the amount of damage, and elaborate descriptions given of the machines. I shall not attempt a description, but will content myself with saying that at the request of the parties I visited the silk-throwing plant of Mr. Singleton, a witness in the cause, at Dover, New Jersey, and was somewhat surprised to find the machinery quite a simple affair. The parts of the machinery which carry the power from the engine to the parts which come in contact with the silk consists of the ordinary gearing, namely, shafting, pulleys, belts and cogwheels, which are found in all textile machinery. The parts with which the silk comes in contact were principally spools or bobbins, with traverse motion-guides to distribute the threads evenly while being wound on the spools. The throwing or twisting consists of unwinding the silk from one bobbin or spool and winding it on to another, while both are revolving, and thereby giving it a twist. The doubling or trebling, as the case may be, is accomplished by combining the threads from two or three spools into one cable, twisting that by the same rotary motion, and winding it on to a spool or bobbin. Then it is wound off the bobbin to a reel and put in the shape of a hank or skein. It was suggested that no one but a manufacturer of throwing machinery, or a practical throwster, could determine the amount of injury done by smoke and water to these machines, or, in other words, could determine the amount of expense in labor, &c., necessary to restore them to their former condition. I am unable to adopt that view and am entirely satisfied that Mr. Winchester, and especially Mr. Manning, who was familiar with the more delicate and intricate machinery used in spinning and twisting cotton, were both entirely competent to make such an estimate and appraisement. There remains now the single objection that the award is so American Central Ins. Co. v. Landau. far below the actual loss as to show improper conduct on the part of the appraiser and umpire. Upon this part of the case an immense amount of evidence was given on each side by expert silk machinery manufacturers and silk throwsters. I gave close attention to their evidence as it was being given; I have since read it with care, and the clear weight of the evidence is that the award in this case was sufficiently liberal to Mr. Landau. This disposes of the most important question presented by the pleadings. But they raise other issues, namely, first, whether there was any sufficient reason for coming into this court. This was placed in the bill mainly on the ground that, by the interlacing and overlapping of the policies, it was impracticable to assert the award at law. This interlacing and overlapping is denied by the answer. Then, in the second place, the cross-bill prays that if the award be not sustained by this court, and the court should be of the opinion that the case is a proper one to be taken from a jury, this court will ascertain the damages. In view of the possibility of another court differing with me in my judgment as to the validity of the award, I feel it my duty to go into these several questions. First, as to the propriety of withdrawing the case from the law courts if the award be valid. I find that, upon close examination, there is not so much variation in the several descriptions of property leading to overlapping and interlacing as my reading of them in considering the case on demurrer led me to suppose; and if that were the only difficulty in the way of establishing at law the defence of the award, I might hesitate about continuing the restraint in that regard. But all the other considerations which influenced me in the former decision remain in full force, with some additions, which I will mention. First, it appears that the problem of adjusting the loss between the several insurers is rendered difficult by the fact that one or two of the policies are what are called blanket policies, covering the machinery in the several buildings, and underwriting it for a round sum; while the others are what are called specific policies, and while covering the same machinery, limit their loss to a fixed sum on each separate parcel of machinery as found in the different rooms. This situation, according to the expert in |