Opinion
(June Term, 1830.)
1. An award may be corrected for error in law, where it appears on its face that the arbitrators intended to decide according to law, but have made a mistake.
2. Interest is not of course to be compounded in favor of a ward against the executors of his guardian, but simple interest only is to be computed from the death of the latter, unless compound interest was received.
3. Ordinarily, a guardian is to be charged with compound interest, but he may be exempted from it by proving that, after suitable exertions, he was unable to realize it.
4. No decree can be made against one on whom process has not been served, unless he has entered an appearance.
From BERTIE. The plaintiff in his bill alleged that David (383) Ryan, his father, had died in 1802, having made a will whereby he bequeathed the whole of his personal estate to the plaintiff and another son, and appointed his wife, Mary B. Ryan, executrix; that the executrix never in any way managed the said estate, but confided the whole thereof to her brother, John Beasley, the testator of the defendants, who had also procured himself to be appointed guardian of the plaintiff; that Beasley had never accounted for the assets of David Ryan which had come to his hands, neither had he in any way settled his accounts as guardian of the plaintiff, nor made any returns, so as to enable the plaintiff to charge him with the receipt of any precise sum. The prayer of the bill was for an account of David Ryan's personal estate, and also of the plaintiff's estate received by the defendant's testator as guardian.
Gaston for plaintiff.
Hogg for Pettigrew.
Badger for other defendants.
Process issued upon this bill, and was served on all the defendants but Pettigrew, who never entered his appearance.
No answers were filed by any of the defendants, but by an agreement, signed by the plaintiff and all the defendants, except Pettigrew, the matters in difference between the parties were referred to arbitration.
On the Fall Circuit of 1829 the arbitrators returned their award, accompanied by an account of the funds with which the defendant's testator was chargeable, from which it appeared that they had ascertained the sum in the hands of the latter, due the plaintiff, on 1 January, 1815, to be $2,236.05, upon which they had allowed the plaintiff compound interest up to 1 January, 1829, amounting in the whole to $5,055.36.
Upon the coming in of this award, before DANIEL, J., it was objected to the award by the defendant's counsel that the award should be set aside as to that part thereof wherein the defendants were charged in the report made by the said arbitrators, and filed in the cause, with compound interest from 1 January, 1815, to 1 January, 1829, and (384) the said report being examined by the court, and it appearing to the court that the defendants were charged with compound interest from the said 1 January, 1815, to the said 1 January, 1829 (John Beasley, the guardian of complainant, having died about 1 January, 1815), and it appearing to the court that the arbitrator did so charge the defendants with compound interest, and it appearing further to the Court that the arbitrators undertook to decide according to principles of law, and they mistook the law in so charging the defendants with compound interest: It is ordered and decreed that the award be set aside as to that part thereof, the court being of opinion that the defendants are chargeable with simple interest only from the death of the guardian. And now a computation being made by consent at this term, charging the defendants with simple interest only from 1 January, 1815, whereby it appears that the sum of $3,761.58 was due complainant on 1 January, 1829, according to the award, and according to that method of computation, of which sum $2,044.34 is principal, and it is ordered and decreed that the award in all other matters and things be confirmed.
Whereupon, it is ordered and decreed by the court that the complainant, David L. Ryan, do recover of the defendants James Iredell, Clement H. Blount, and Ebenezer Pettigrew, executors of John Beasley, the said sum of $3,761.50, with interest, etc.
From this decree, so far as it directed the award to be set aside as to the compound interest charged the defendants, the plaintiff appealed.
If in fact it did (385) appear upon the award, where alone the Court can look to find it, that the arbitrators decided according to law, and mistook the law, the error may be corrected, for thereby the award is not varied from what the arbitrators intended, but it is made to be what they designed it should be. But no such intent appears upon the award or otherwise, as we can perceive. The court must have come to that conclusion by conjecture, or by evidence aliunde; neither of which sources will do. It must plainly appear upon the award, otherwise it is taken that the arbitrators intended to be governed by their own rules or notions of right. Both the law and the facts are referred to them. And where there is no fraud or mistake, the latter to be ascertained as before stated, the award is conclusive. It is in their judgment as to both that the parties confide. It is quite possible, nay, it is probable, that the arbitrators intended to be governed by the law on the subject of interest. And if they did, the compounding of the interest against the defendants as a matter of course was an error; for although they represented him who had been guardian, and who as such prima facie was chargeable with compound interest, the compounding of the interest as a matter of course should cease with his guardianship. When I say compounding interest ceases as a matter of course, I mean to say that his executors are not to be charged with compound interest unless it is shown that they had made it. Neither do I mean to say that a guardian is in all cases to be charged with it. Ordinarily he is; but he may be exempted from it by showing that he has been unable to make it, after using his best exertions to do so. Why these arbitrators charged the defendants with compound interest, we know not. It might have been by mistake. It might be because the ward's property produced it in their hands. We cannot, therefore, even say that this award has not met the actual justice of the case according to our own notions. Much less can (386) we say it did not according to the notions of the arbitrators, who are judges of the parties' own choosing. The decree must, therefore, be reversed, and decree according to the award, except so far as it is awarded against Mr. Pettigrew. Against him there can be no decree, nor can he be otherwise affected by the decree than the decree against his coexecutors affects the assets of the estate. Of course, it affects the assets in his hands. Nor does the award affect the other executors personally. The decree must, therefore, be against the assets in their hands. The question of assets is left entirely open.
PER CURIAM. Decree of the court below reversed, and decree for plaintiff for the sum of $5,055.36, with interest, etc., to be levied of the assets in the hands of the defendants. Cited: Wood v. Brownrigg, 14 N.C. 431; Mitchell v. Robards, 17 N.C. 479; Pierce v. Perkins, ibid., 251; Leach v. Harris, 69 N.C. 537; Lusk v. Clayton, 70 N.C. 188; Wyatt v. R. R., 110 N.C. 247; Herndon v. Ins. Co., ibid., 287.