Evans v. Clapp. been to deprive them of information to which they were entitled, by shutting them off from the only source of it, in the breast of the umpire. He alone could tell what subjects he included under the general terms of his award. But this having been ascertained the defendants were not at liberty to go farther, and to ask the umpire what were the elements which entered into his consideration in determining the quantum of compensation. Within the limits of the reference, the amount to be awarded was entirely within the discretion and judgment of the umpire." And, in concurring with the Lord Chancellor in the result, Lord CAIRNS said: "It appears to me that, upon every point which may be considered to be a matter of fact with reference to the making of the award, the evidence of the arbitrator or umpire was properly admissible. He was properly asked what had been the course which the argument before him had taken - what claims were made and what claims were admitted; so that we might be put in possession of the history of the litigation before the umpire up to the time when he proceeded to make his award. But there it appears to me the right of asking questions of the umpire ceased. The award is a document which must speak for itself, and the evidence of the umpire is not admissible to explain or to aid, much less to attempt to contradict (if any such attempt should be made) what is to be found on the face of the written instrument." Two cases have come under our notice which bear directly on the question presented in this case. In Zeigler v. Zeigler, 2 S. & R. 286, the plaintiff brought an action to recover compensation for repairing a saw-mill on the premises of the defendant. The defendant pleaded an award of arbitrators, and a judgment thereon in a former suit between the same parties. At the trial, the defendant offered the record of the former suit, which was an action of covenant founded on an agreement by the plaintiff to sell the defendant a tract of land on which the saw-mill was erected. It was referred to arbitrators, who awarded in general terms that the plaintiff should give to the defendant a deed of the premises. The record and the award were admitted in evidence, and the arbitrators were allowed to testify that the dispute relative to the claim for repairing the saw-mill had been decided by them, the plaintiff having brought it forward and demanded compensation. The plaintiff had acquiesced in the award, and the court held that he was bound by it, and that when a party brings forward a claim, VOL. XXV-8 Evans v. Clapp. and, in the usual course of proceedings, such claim is not entered on the record, it becomes necessary to prove it by parol evidence, which was the best that the nature of the case admitted, and that the law of evidence adapts itself to the nature of the case. In Buck v. Spofford, 35 Me. 526, the award directed the conveyance of certain land, and the referees were allowed to testify that, before them, the plaintiff claimed a right to three-sixteenths of a township, and that they decided that he was entitled to but threetwentieths. on Suppose, in the case at bar, after the rendition of the award and the settlement of the parties according to its terms, the rubber company had brought trover, or, if the boots and shoes had been in existence, replevin for them against the firm or this defendant, in whose possession they were. The face of the award discloses no decision on the question of title, which had been already decided. It would clearly have been competent for the referee to testify, the production of the award, that the question of title to these boots and shoes was in dispute before him, that he had decided that the boots and shoes or a portion of them belonged to the firm, that his decision on that question entered into his award, and that he allowed the value of a certain portion of them as a credit to the account of the company. In other words, the referee may testify to the proceedings before him, and that the question sought to be tried in the new suit was settled and determined by arbitration. Nor can there be any doubt that the result of the award is also binding on the plaintiffs and defendant. It not only concluded the rights of the firm, as against the rubber company, but as between themselves and in view of the contract of dissolution. The award did not change the title to the property; it merely ascertained it. Thorpe v. Eyre, 1 A. & E. 926. If an award is made against a firm, and it is paid by one partner, upon the question of contribution by the others, the amount of the award is conclusive. They cannot dispute that the amount paid was not really due from the firm. The question before the referee was, to whom the boots and shoes belonged; if to the company, his award would have been larger; as he found they belonged to the firm, the award was smaller by deducting their value. As, by the articles of dissolution, these boots and shoes, found to belong to the firm, passed to the defendant, to be paid for by him, he can Evans v. Clapp. not be permitted to try the question of title again, when, by a failure of evidence, the parties may not be able to establish the fact. If he can succeed in throwing out the finding of the referee, upon which the rights of the firm against the rubber company, and the title in these particular boots and shoes, was established, he may get them without paying for them. And, while the plaintiffs have suffered in the award by having to credit these shoes to the account of the firm against the company, they may suffer in this case, unless they can show by the award that they did in fact belong to the company. This would be a most inequitable result, and would prevent the plaintiffs from arriving at a just settlement of their respective interests under the articles of dissolution. This conclusion renders it unnecessary to consider whether the master should have reported the evidence in regard to the amount of goods on hand on October 1, 1872. And no reason is shown why the claim for reconsigned and recharged goods should not have been allowed. We therefore decide that the award was competent, and that it was also competent to show that the question whether the firm or the company owned the rubber goods was in controversy before the referee, and that he decided that a certain number of them belonged to the firm. How far the further evidence given by the referee was competent, it is unnecessary to inquire, as the master finds by other evidence the value per pair of the boots and shoes, and as to the recharged and reconsigned goods. The plaintiffs are entitled to a decree that the defendant shall pay to them, in their respective proportions for the 9,977 pairs of boots and shoes, at $1.58 per pair, and for the recharged and reconsigned goods. Decree accordingly. Goodrich v. Hulbert. GOODRICH V. HULBERT. (123 Mass. 190.) Arbitrator -Disqualification. The award of an arbitrator will not be set aside because he had formerly been counsel in another action for the party in whose favor he makes award, although this fact was not known to the unsuccessful party or his counsel, in the absence of evidence of intentional concealment of the fact.* A CTION on contract, referred by agreement, in 1876, to Henry W. Paine, who made an award in favor of plaintiff. Defendants moved to set aside the award, because the referee was not disinterested. It appeared that some ten years before, an action of libel had been brought against the plaintiff Goodrich, and that the referee, Mr. Paine, had been associated as senior counsel with Mr. Merwin, Goodrich's attorney in action. The trial excited much personal feeling. The case was settled by agreement in 1871, and since that time Mr. Paine had never acted as counsel for Goodrich nor had any personal relations with him. The defendants in this case and their counsel were ignorant of those facts when they assented to Mr. Paine's appointment as referee, and until after the award was made, and if they had known them, would not have assented to his appointment. Before making the agreement for the reference, defendants' counsel asked Mr. Merwin, Goodrich's counsel in this case, whether Mr. Paine was connected or interested with Goodrich as counsel or otherwise, and was informed that he was not, from which he inferred that Mr. Paine had never acted as counsel for Goodrich, and so stated to defendants, who consented to the reference on that understanding. Goodrich was a material witness on this trial on his own behalf. It was not contended that Mr. Merwin intended to mislead or conceal, or that the referee was chargeable with improper conduct, or was conscious of any bias or prejudice in the case. The court below refused to set aside the award, and defendants alleged exceptions. M. Wilcox, for defendants. H. L. Dawes, for plaintiff, was not called upon. * See ante, p. 40, and note, p. 46. Baker v. Willis. GRAY, C. J. The only ground assigned for the defendants' motion to set aside the award was bias and interest of the arbitrator, by reason of his having acted as counsel for the plaintiff in a former action, which was not disclosed or known to the defendants or their counsel until after the award was made. It was not contended that the fact was intentionally concealed, it did not appear that the plaintiff or his counsel knew or suspected that the defendants were ignorant of it, and their actual ignorance of the fact is immaterial. The decision of the judge, overruling the motion, is not subject to revision by the full court as to matters of fact. To hold, as matter of law, that a member of the bar is disqualified to act as an arbitrator, merely because he has formerly been of counsel for one of the parties, would be an imputation upon the uprightness and good faith of the profession. The twenty-ninth article of the Declaration of Rights, declaring "the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit, if interpreted as contended by the learned counsel for the defendants, would prevent a judge from sitting in every case to which a former client of his in any other case was a party. Exceptions overruled. BAKER V. WILLIS. (123 Mass. 194.) Exemption of trade tools from execution. A debtor, who is both a musician and a tinner, and who supports himself by playing the cornet and working at his trade, is entitled to exemption from attachment on his cornet, if the value of the same and his tinner's tools is less than $100. (See note, p. 63.) TORT ORT for the conversion of a cornet, attached by defendant, as deputy sheriff. Action tried in the District Court of Southern Berkshire. The plaintiff was a tinner by trade and also a musician, had followed both occupations fifteen years, earned $15 a week at his trade, and $5 a night when he played the cornet, and he played whenever he had an opportunity. His tinner's tools |