State, use of Hickley, vs. Stewart and Gross.-1842.

Lloyd, Esq., as stated the subject matter of the award filed in this case and the character of the items of which it was composed, was admissible; and also that part of said deposition of John J. Lloyd which show the claim of the plaintiff and the denial of the defendant, that said claim was within the submission, is also admissible for the purpose of showing that the arbitrators had in their award decided on a matter already, before the reference finally adjudicated, and not within the submission; to which opinions of the court and to each and every of them, and to their reception of the affidavit of D. Stewart and J. J. Lloyd for the purpose aforesaid, the counsel of plaintiff excepted.

The paper marked A, referred to in the aforegoing exceptions, is as follows, to wit:

DR. William Hickley, in account current with John Gross,

Baltimore.

Amount. Interest. 1829, Oct. 20-To cash paid att'y. Stewart $200 00

"cash lent you,

60 00 100 00

70 20

Nov. 14-To cash paid officers' fees, &c. 15 84

State, use of Hickley, vs. Stewart and Gross.-1842.

Sept. 21-To 1 pannel for tomb stone, 100 00
"4 tomb stones at $20,

Interest 2 years and 4

80 00

1832, Augt. 31-To cash lent,

Interest 4 months,
To cash lent,

Interest 1 months,

9 37

3 07

87 50

6 09

To amount of interest to date,

231 83

$1,993 94

Amount of interest on $2,607 for 3

3 years and 3 months, paid to Shorb, 247 66

CR.

$2,241 60

1829, Oct. 20-By cash, Cathedral money, $3,447 00

Interest for 3 years and

3 mos. at 6 per cent. 672 17 673 17

State, use of Hickley, vs. Stewart and Gross.-1842.

And thereupon, after the evidence had been offered, which is stated or referred to in the aforegoing bill of exceptions, and upon the hearing and consideration by the court here, of the said evidence, and of the exceptions taken on behalf of the defendants to the award filed in this cause, it is considered by the court here, that the award aforesaid, be and the same is hereby set aside, and held entirely as void, and of no force or effect. The plaintiff appealed to this court.

The cause was argued before BUCHANAN, C. J., STEPHEN and SPENCE, J.

By MCMAHON, for the appellant

The 1st exception taken in this cause relates to the admissibility of the depositions of David Stewart and John J. Lloyd. And the appellants will contend, that the court below erred in receiving said testimony, and especially in receiving it for the purposes stated in said objections, or any of them.

The 2nd exception relates to the decision of the court below, setting aside the award, which decision, the appellants will maintain, was erroneous, and in support of their allegation of error, will contend for the following propositions:

1st. That the reference in this case gave the referees the power of deciding upon all claims or demands involved in, or within the scope of the action referred, and all matters in controversy between the parties, and especially upon the propriety and justice of the allowance claimed and given in the accounts of said John Gross, as administrator of Sebastian Hickley, (as settled in the orphans court,) for the alleged payment of the debt due to Shorb by said Hickley.

2nd. That the extent and effect of said reference could not be in any degree qualified or restricted, nor the right of the referees to decide upon the justice of the said allowance for Shorb's debt, as a matter in fact in controversy between the parties, in any respect affected by the mere undivulged impressions or belief of Gross, or his counsel, as to the extent of the reference, even if the evidence of the same were admissible.

State, use of Hickley, vs. Stewart and Gross.-1842.

3rd. The decree of this court was not final and conclusive, so as forever to debar the appellant in this case from controverting the right of said Gross to the said allowance made him for Shorb's debt, in his accounts, as settled in the orphans court; and that either, upon the trial of the action on the bond in Baltimore county court, or of the matters referred before the referees, it was competent to said appellant, notwithstanding said decree, to controvert Gross' right to said allowance.

4th. That whether said decree was or was not final, the said appellant might, at the trial of the action on said bond, have objected, that the same was not final, and was entitled to have that question tried and decided; that the question, as to the effect of said decree, was open to contest, and was in fact, a matter in dispute; and that the said action, and all matters in controversy having been referred, the decision of the referees upon the effect and conclusiveness of said decree, was final and conclusive, (and above all, in a case where the referees were attorneys or legal arbitrators,) and that the court below had no right to review or correct their decision, on that or any other ques tion that arose in the trial before the referees, even if erroneous, there being nothing on the face of the award disclosing any such error.

5th. That even if the arbitrators exceeded their authority in disallowing the allowance for Shorb's debt, the court below erred in setting aside the whole award.

By J. JOHNSON and G. M. GILL, for the appellees, who moved to dismiss the appeal, and maintained the converse of the appellant's propositions.

Upon the motion to dismiss the appeal, they insisted

1st. That at the time when the appeal was prayed and taken, there was no final judgment of Baltimore county court, and that the judgment appealed from was interlocutory, and not final.

2nd. That it was in the power of Baltimore county court to re-instate the said cause, and direct the same to be tried as

Mason and Leef vs. Franklin Fire Ins. Co.-1842.

other causes are tried in Baltimore county court, and it does not appear whether the same was so re-instated or not; the appeal having been taken from the judgment of that court, setting aside the award.

BY THE COURT

Let the judgment of the county court be reversed, and judgment be entered upon the award for the appellants.

JUDGMENT REVERSED.

MASON AND LEEF vs. The FRANKLIN Fire Insurance COMPANY. December, 1842.

A policy of insurance against fire, upon a vessel, building in the port of Baltimore, and for a specified period, is not controled in its operation by proof of usage in other ports of the Union. Such usage could not be considered as entering into the views of the parties in the present contract.

In a valued policy against fire, "on a new barque now being built,” it was the design of the parties to cover the vessel in the process of construction, and indemnity was agreed to be furnished for her loss by fire, whatever might be her progress towards completion, when the fire occurred. The policy, in the absence of proof of usage, did not attach upon articles made for the vessel, delivered in the ship yard where she was constructing, in a condition, and intended to be fitted and attached to her, if she had been, or as soon as she might be ready to receive them.

APPEAL from Baltimore County Court.

This was an action of COVENANT, brought by the appellants against the appellees, on the 27th April, 1841.

The plaintiffs declared upon the policy mentioned in the bill of exceptions, and the defendant pleaded they had not broken their covenant, with leave to both parties to give any matter in evidence which might be given under any other plea. Errors of pleading were waived.

At the trial of the cause, the plaintiffs, in order to support the issue on their part, gave in evidence the policy of insurance declared on, of the Franklin Fire Insurance Company of Philadelphia.