Levy v. Ross

The following are the grounds and reasons assigned by the defendant’s counsel in support of their motion for a new trial.

1. The verdict is contrary to law, because the award was for the compromise of a felony.

2. The verdict is contrary to evidence, because the evidence clearly established the object of the award to be the compromise of a felony.

3. The verdict is contrary to the charge of the court in matter of law.

In this case it was proven at the trial, by the testimony of the arbitrators, that Levy had menaced Ross with a prosecution for a capital felony, and that the submission to arbitration was founded upon an understanding, that the award was to adjust all matters which related to the subject of that intended prosecution. It is true that the arbitrators, who were called and admitted as witnesses, did not “ in totidem verbis” say, that the submission to arbitration was founded upon the compromise of felony ; but it was clearly established, that the prosecution was abandoned in consequence of the agreement to refer the controversy to arbitrators. I have doubts as to the admissibility of an arbitrator as a witness, except it be to prove facts which were admitted by the parties to the submission, in their examination before the arbitrators. On this point the English authorities advance some doctrineg which are not easily understood; but 1 shall not decide on *293that point now ; it may be investigated when the arbitrators are again presented as witnesses. Upon the whole of the evidence, as it was offered at the trial, I adhere to the opinion which I expressed then, that this award was bottomed upon the composition of felony, and therefore an action is not maintainable.

Rule absolute.