White Star Mining Co. v. Hultberg

77 N.E. 327, 220 Ill. 578

• Court: Illinois Supreme Court
• Decided: April 17, 1906
• Status: Published

Opinions

Mr. Justice Wilkin

delivered the opinion of the court:

This is a direct appeal from an order of the circuit court of Cook county dismissing the bill of appellant to set aside an award of arbitrators theretofore rendered between it and certain of the appellees, and decreeing the performance of the same award on the prior bill of Neis O.'Hultberg.

The following facts appear from the pleadings and evidence in the record: The Swedish Evangelical Mission Covenant of America was organized as a corporation not for pecuniary profit, under the laws of the State of Illinois, in 1885. .The purposes of its organization were, to carry on Christian mission work in the United States and foreign countries, spread the gospel and promote a Christian association and religious life between the church congregations and members thereof, and to do general Christian, charitable and educational work. In 1887 it placed one Alex Edward Carlson in charge of a missionary station at Unalaklik, in Alaska, which had been turned over to it by the Swedish Evangelical Mission Covenant of Sweden, and in 1893 it established an additional station at Chinik, in that territory, and placed in charge of it Neis O. Hultberg, one of the appellees. In the summer of 1897 Peter H. Anderson, another one of the appellees, arrived at Chinik, where he had been sent by the covenant at its expense to perform the duties of a missionary teacher. He had previously been educated by the covenant at one of its colleges, partly at his own expense and partly at the expense of the covenant. At the time of this assignment he was wholly without other means than clothing and personal effects, all of which had been furnished him by the covenant for the purpose of fitting him out for his journey and his work at said missionary station. From the time of his arrival at Chinik until August 31, 1898, when Hultberg, with his wife, started on a trip to the United States and Sweden, he (Anderson) and Hultberg co-operated together in carrying on the work of the covenant, Hultberg being in general charge and Anderson doing the work of' a teacher.. Neither of these men received any salary for his work, but the covenant supplied them with provisions of the value of about $1700 per year for themselves and about $300 worth for the native Eskimos, and in addition they received certain profits which were derived from reindeer kept at the station. During the spring of 1898 Hultberg made a number of prospecting trips in various directions from Chinik in search of gold, and he and Anderson located claims in their individual names on Melsing and Ophir creeks, one in the name of each on each of said creeks. Another expedition was made in July, 1898, to Anvil creek, in the Cape Nome mining and recording district, on which no claims were taken or located but arrangements were made for future explorations, and in September of that year thirteen claims were staked out by them in the names of various parties, one of which, known as “No. 9 Above,” being taken in the names of Gabriel and Constantine, two Eskimo boys, who were then under twenty-one years of age and had been connected with the covenant station for a number of years prior to that time. It was and is claimed on behalf of the covenant that said No. 9 Above was located and taken in the names of the boys Gabriel and Constantine for it. Upon the return of this expedition to Chinilc a question arose as to whether the claim had been established according to law and as to the right of the Eskimo boys to hold the same, and in order to remedy that possible defect another expedition was sent out the following October, and claim No. 9 Above, the boundaries of which were different from those of the first location, was taken in the name of a man by the name of Price. It was taken in his name, however, merely for the purpose of enabling Anderson to obtain title to it in his own name for the supposed benefit of the covenant, and Price subsequently conveyed the claim to Anderson for a stated consideration of $20, which amount, it is claimed, was never paid. Early in 1899 Anderson went upon the property and commenced the work of preparing for mining gold. In June of that year Hultberg returned to Alaska from his visit to the United States and Sweden, and shortly afterwards, as he testified, Anderson informed him, in substance, that claim No. 9 had been staked and located for the covenant and that it belonged to the covenant. The evidence also tends to show that Anderson made the same admission to other parties, and that the claim continued to be held in that way until it became manifest that it was very rich in gold, when Anderson asserted its exclusive ownership in himself, individually. Erom this claim and other interests Anderson has amassed a fortune amounting to about $440,000, all of which he has appropriated to his own exclusive use, except some $95,000 which he gave to the covenant, $500 to the Eskimo boys Gabriel and Constantine, and $15,000 paid to settle certain litigation in which the covenant was involved. It was claimed by appellees that at the time said property was taken possession of, Anderson was in the employ of the covenant; that the claim was staked out for the benefit of the covenant, and that he used the supplies which were furnished him by the covenant for the purpose of stocking the various expeditions which went out to establish those claims.

When Anderson began to use the property as his own, a controversy arose between him and the covenant as to its ownership, and on February 7, 1901, Anderson wrote a letter to the committee of the covenant in which he agreed to donate $25,000 to the covenant school, $4000 to the covenant for students of theology and $25,000 to found a hospital in Lake View, Cook county, this State, provided the covenant should not bring suit against him to regain claim No. 9. On August 16, 1901, the president and secretary of the covenant executed, in their names and on behalf of the covenant and under its seal, a release, which purported, in consideration of the sum of one dollar paid by Anderson to the covenant, to release and discharge him from all possible liabilities on claim No. 9, and subsequently the donations above mentioned were paid to the covenant and used by it in its work. The execution of this release was reported to the executive committee of the covenant subsequently to its next general conference, and the acceptance of the donations was by it approved.

In May, 1902,- there was organized under the laws of the State of California a corporation known as the White Star Mining Company of California, with a capital stock of ’500,000 shares, of which Anderson owned 499,997, and to this corporation he conveyed -claim No. 9 Above on Anvil creek, together with claim No. 2 Above on Anvil creek, and certain other mining claims which he had in the meantime acquired in Alaska. In January, 1903, he transferred the stock of the White Star Mining Company of California to the appellee Claes W. Johnson for a stated consideration of $100,000, and at the same time entered into a written contract with Johnson to the effect that this $100,000, which was in payment of not only claim No. g Above but other mining interests, should be paid for out of the income of the mines after deducting the operating expenses, including $5000 which was to be allowed to Johnson for his personal use and for managing expenses. This transfer also included the stock of Anderson in the White Star Mining Company. In May, 1903, Johnson organized under the laws of the State of Illinois the White Star Mining Company of Illinois, the appellant, with a capital stock of $25,000, and to this corporation Johnson caused the White Star Mining Company of California to convey claim No. 9 Above and other mining properties, and during the year 1903 the White Star Mining Company of Illinois operated claim No. 9 at a net profit of $75,000.

Notwithstanding the execution of the release to Anderson by the president and secretary of the covenant, the question of the ownership of the mine No. 9 Above and the right of the covenant to the proceeds of it still continued to be a matter of discussion among the members of the covenant and its missionaries in Alaska, the claim being that said release was without authority of law and void. A number of conferences and discussions took place between the covenant, Johnson and Anderson, which resulted in a transfer by the covenant to Hultberg of all rights of the covenant in the premises, and on June 17, 1903, a quit-claim deed was executed by it to Hultberg. On September 8, 1903, an assignment was also executed by the covenant to Hultberg of its claim against Anderson, Johnson and the White Star Mining Company on account of gold taken out of the mine prior to the conveyances. Hultberg made demands upon Johnson and the White Star Mining Company for possession of claim No. 9 Above and for an accounting for its proceeds, and on August 12, 1903, an agreement to submit all of said matters in controversy to arbitration was entered into, as follows:

“This agreement of special submission to arbitration, made and entered into this 12th day of August, A. D. 1903, at Nome, Alaska, by and between Neis O. Hultberg, of Campbell, California, acting for and on behalf of himself and as successor in title and representing the interest of the Swedish Evangelical Mission Covenant of America, Claes W. Johnson, of Chicago, Illinois, the White Star Mining Company, a" corporation organized and existing under the laws of the State of Illinois, and if they shall join herein as hereby provided for, then also the White Star Mining Company, a corporation organized and existing under the laws of the State of California, and Peter H. Anderson, of Chicago, Illinois:

“Witnesseth, that the said parties, or such of them as sign this agreement, mutually agree to submit, and do hereby submit, all their matters in difference, of every name and nature, pertaining to the title and the proceeds of that certain placer mine and mining claim known as and called ‘No. 9 Above,’ on Anvil creek, situate in the Cape Nome mining and recording district in the District of Alaska, to the award and decision of three arbitrators, or any two of them, to be selected as hereinafter provided, for them to hear and determine the same and make their award in writing on or before the 30th day of March next. * * *

“Whereas, controversies are now existing and pending between the said Neis O. Hultberg, as successor and representative, as aforesaid, on the one part, and Claes W. Johnson, and the White Star Mining Company of Illinois, and the White Star Mining Company of California, and the said Peter H. Anderson, in relation to the mining claim and mine above described, and the proceeds thereof; and whereas, the said White Star Mining Company of Illinois and the said Johnson are now in possession of, operating and claiming to own said placer mining claim and to be entitled to the proceeds thereof, and have been so in possession and claiming to own the same for some time past, the said White Star Mining Company, a corporation of Illinois, claiming to have obtained title thereto from the said White Star Mining Company of California; and whereas, the said Neis O. Hultberg claims and asserts that he is the lawful owner of said mining claim and the proceeds thereof, and did, on the nth day of August, 1903, cause to be served upon the White Star Mining Company of Illinois, of which the said Claes W. Johnson is president, a notice in writing of his claim of ownership, and of a demand for the possession of said mining claim and the proceeds thereof; and whereas, the said parties deem it wise and for the best interest of all concerned that the said claims and demands of the said Neis O. Hultberg and of the said other parties, respectively, shall be heard, determined and adjudicated upon by a submission of the said matters in controversy to the arbitrament of three arbitrators, to be selected as hereinafter stated, the decision of whom, or a majority of whom, upon said niatters, after the hearing of evidence produced by the parties, shall be binding and conclusive upon the parties hereto; and whereas, also, the said Peter PI. Anderson has heretofore claimed to own said mining claim and the proceeds thereof, and under said claims has had and received large amounts of gold and large sums of money as the income of said placer mine and mining claim; and whereas, the said White Star Mining Company of California has also for some period claimed to own and prior to April 1, 1903, been in possession of said mine and mining claim, and has received and appropriated to its own use proceeds, to-wit, gold and money, realized therefrom to a large amount; and whereas, said Hultberg claims and contends that he is entitled to the possession of said mine and to an accounting for the rents, issues and profits thereof against all of said parties who have been in possession thereof:

“Now, therefore, it is hereby agreed and understood by and between the parties hereto who shall execute this agreement, that the said claims and demands of the said Neis O. Hultberg, and also all contentions and defenses of the said other parties, shall be made and presented to the said three arbitrators to be selected as hereinafter specified, who shall sit, hear and determine upon such claims and demands and contentions of the respective parties in the city of Chicago, State of Illinois, at such place therein as said arbitrators may decide, and the award to be made by said arbitrators, or any two of them who may agree, shall in all things by the parties hereto who shall execute this agreement be well and faithfully kept and observed: Provided, however, that the said award be made in writing under the hands of the said arbitrators, or any two of them, and ready to be delivered to the said parties in difference who have executed this agreement, or such of them as shall desire same, on or before the 30th day of March, 1904.

“It is further agreed and understood that said arbitrators shall be the judges of the admissibility of evidence before them in reference to said matters in controversy, and shall be liberal, and not technical, in the admission of evidence, and shall administer, or cause to be administered, oaths to the witnesses who may testify before them, but their conclusions shall be based upon legal and competent evidence only. Evidence that may be relevant and have a bearing on said matters in controversy which shall be presented by way of oral testimony of witnesses that may appear before said arbitrators, or by way of depositions taken upon notice waived or served for such length of time as may be required by the arbitrators, they shall admit and receive, but only in the presence of the parties or their legal representatives, unless the parties or their legal representatives shall voluntarily absent themselves from the sessions, or any session, of said arbitrators. And the said arbitrators, or any two of them, shall to the best of their ability hear, determine and adjudicate upon all such matters in controversy upon broad principles of equity and justice, having due regard as well for the moral as the legal rights of said parties and the law of the land. The arbitrators shall also give to all parties hereto the full benefit and advantage of all rights under the laws of any State, or of the District of Alaska, which might have been availed of in any prosecution or defense in any court, and particularly shall full benefit and advantage be given to any defense which might have been made in any suit or legal proceedings which might or could have been instituted by said Hultberg or said covenant, whether consisting of matters of law or fact; and any such last mentioned defense which shall be sustained by evidence or authority of statutory or common law shall be deemed a sufficient defense by the abitrators, the same as it would have been if presented in any regularly constituted court of justice. In the event said arbitrators, or any two of them, shall find in favor of said Hultberg, they shall, as the evidence and the facts and the law may warrant, award damages or recovery of said land and premises, or both; and in the event that said arbitrators, or any two of them, shall find that said Hultberg is entitled to an accounting for the proceeds of said mine, as hereinbefore stated, they shall require such account and in their award state the result thereof. The said arbitrators, or any two of them, shall be the exclusive judges of the procedure to be adopted in the investigation before them, except as herein stated.

“It is undersood and agreed that the object of the parties hereto, in submitting this matter to arbitration, is, that there shall be a full, complete and just determination between said parties of all matters in controversy embraced herein, regardless of all technicalities, and that said adjudication shall be had upon the true merits of said controversy and according to law. * * * (Then follow provisions for the selection of the arbitrators and the manner in which they shall proceed to hear the case.)

“The parties hereto may appear by themselves and by attorney before the said arbitrators, and after the said arbitrators have closed the hearing of evidence and heard the arguments herein, they shall, after full consideration of the law and evidence, prepare their decision in writing within the time hereinabove stated, first, upon the claims and demands of said Hultberg, so far as the White Star Mining Company of Illinois and Claes W. Johnson are concerned; secondly, upon such claims against Peter H. Anderson and the White Star Mining Company of California, if the said Anderson and the White Star Mining Company of California shall submit to this arbitration as hereinbefore stated. Such decision shall be definite, full and specific, so that if it shall be in favor of said Hultberg it shall describe the property to which he is -found to be entitled, and shall specify the. amount, if any, which he shall be paid by any of the parties, the White Star Mining Company of Illinois, Claes W. Johnson, Peter H. Anderson and the White Star Mining Company of California, jointly or severally, as the case may be; and such decision, when made and carried out, as hereinbefore stated, shall be for the purpose of finally ending, compromising and absolutely determining all of said differences and controversies and demands whatsoever had, made, arising or accruing, or which at any time or times may be had by or between said parties, for or by reason or means of said mine, mining claim or the proceeds thereof, or any matter or thing relating thereto or resulting therefrom. And the said Neis O. Hultberg, and the said White Star Mining Company of Illinois, and the said Peter H. Anderson, and the said White Star Mining Company of California, if they shall join herein, hereby agree to abide by, carry out and perform any decision and determination arrived at by the said arbitrators or a majority of them, and all the parties executing this agreement, and who join herein, hereby appoint the said arbitrators, or such of them as may act hereunder, as their agents, respectively, for them and in their behalf to settle finally and conclusively all said claims and demands made by the said Neis O. Hultberg as hereinbefore set forth, and hereby agree to be bound by the acts of their agents in this behalf. * * * (It is then stipulated that each party shall deposit with the arbitrators $500 to defray the expenses of arbitration and for the payment of the costs thereof, etc.)

“The said White Star Mining Company of Illinois for itself, and the said Neis O. Hultberg for himself, and all parties hereto and who may join herein for himself, each for itself and himself, hereby irrevocably authorizes and empowers and appoints an}'- attorney at law in the State of Illinois its and his attorney, for it and for him to appear iii any court of record, in term time or vacation, and confess and consent to the entry of a judgment or decree upon and in accordance with the decision and determination of the said arbitrators, or any two of them, or such of them as may act. And the said White Star Mining Company of Illinois, and Neis O. Hultberg, and any other party that may join herein, hereby expressly waive and release any and all errors or defects that may intervene in any proceeding; and such judgment or decree shall also be effective, binding and conclusive upon any of said parties who may consent to join herein or participate in this arbitration, and all parties so joining herein shall be considered to have joined in the appointment of any such attorney and to consent to his appearance or confession of said judgment or decree.

“It is further expressly understood and agreed by and between the parties hereto, that if either of the parties shall neglect or refuse to appoint an arbitrator who shall participate in this arbitration, as herein provided, then the party so failing, neglecting or refusing shall pay to the other party the sum of $1000 as liquidated damages for so failing, neglecting or refusing. The said amount as damages is hereby fixed at said sum in view of the fact that any loss or damage to the other party is difficult, if not impossible, of exact ascertainment. The party failing, neglecting or refusing, as aforesaid, hereby promises to pay such sum to the party that may appear with an arbitrator, immediately upon such failure, neglect or refusal, and the same shall be recoverable in any action by such one of the said Neis O. Hultberg, or the said mining companies, Johnson and Anderson as may not so fail, neglect or refuse.

“It is further agreed and understood beween the said Claes W. Johnson and the White Star Mining Company of Illinois and the other parties hereto, that until the arbitration shall have been had as herein provided, or said Hultberg shall fail, neglect or refuse to appoint an arbitrator, or until this agreement shall have expired, the said Johnson and the said White Star Mining Company of Illinois shall not encumber or dispose of the said mine and mining property.

“It is further agreed and understood that said Johnson and the White Star Mining Company of Illinois shall at all events be entitled to have and receive from the output of said mine during the year of 1903 a sufficient amount of gold or moneys to pay and defray all their operating expenses of said mine and mining claim, including labor and material purchased therefor during said time, and the further sum of $9000 shall be had and received by the said Johnson out of said output for his personal services; but all the output of said mine or mining claim, and the gold extracted therefrom during the mining season of 1903, except as hereinbefore stated, shall, in the event that said Hultberg should prevail in his claims and demands against said White Star Mining Company of Illinois, and if the decision of the arbitrators in that behalf should be in favor of said Hultberg, be accounted for by said White Star Mining Company of Illinois and by the said Claes W. Johnson and turned over to the said Hultberg immediately after such decision; and all output of product of said mining claim from and after the date hereof, except deductions allowed as aforesaid, shall, in the event said Hultberg shall prevail and obtain a decision therefor in his favor, be held and considered as a trust fund or trust property held by said Johnson as the agent of and in trust for said Neis O. Hultberg, and be accounted for and turned over to the said Hultberg accordingly. * * *

“This agreement shall extend to and be binding and obligatory upon the heirs, executors or administrators of the parties hereto.

“In witness whereof the said parties who are to be bound by this agreement have hereunto set their hands and seals and have executed this agreement in triplicate.

Nels O. Hultberg, (Seal.)

Claes W. Johnson, (Seal.)

P. H. Anderson, (Seal.)

White Star Mining Company oe Illinois,

By Claes W. Johnson, its President.

[Seal of White White Star Mining Company

Star Mining Co.] oe California,

By -, its President.

“Signed, sealed and delivered in the presence of

Axel Chytraus,

N. Soderberg.”

David F. Lane of California and Abram M. Pence of Chicago were selected by the parties as two of the arbitrators, and they chose Hiram T. Gilbert, also of Chicago, as the third. On April 13, 1904, Lane and Gilbert made an award as follows, Pence refusing to join them:

“To all to whom these presents shall come or may concern, be it known and published that whereas, to us, Hiram T. Gilbert and David F. Lane, and also to A. M. Pence, as arbitrators, at Chicago, Illinois, were submitted by a certain arbitration agreement in writing, dated August 12, 1903, and signed and sealed by the parties thereto within the time therein specified, the matters in controversy mentioned in said agreement existing and pending between Neis O. Hultberg, of Campbell, California, acting for and on behalf of himself and as successor in title and representing the interest of the Swedish Evangelical Mission Covenant of America, Claes W. Johnson, of Chicago, Illinois, White Star Mining Company, a corporation existing under the laws of the State of Illinois, and Peter H. Anderson, of Chicago, Illinois, in relation to all their matters in difference, of every name and nature, pertaining to the title and the proceeds of that certain placer mine and mining claim known as and called ‘No. 9 Above, on Anvil creek,’ situated in the Cape Nome mining and recording district, in the District of Alaska, in and by which said arbitration agreement it was provided, among other things, that the award of the arbitrators under said agreement be made in writing under the hands of the said arbitrators under said agreement, or any two of them, and ready to be delivered to the parties in difference under said agreement, or such of them as should desire same, on or before the 30th day of March, 1904. * * *

“Now, therefore, we, the said arbitrators, Hiram T. Gilbert and David F. Dane, having, together with said A. M. Pence, 'been duly selected as such arbitrators under said agreement and within the time specified in said agreement, do declare and publish that we, the said Hiram T. Gilbert and said David F. Dane, and also the said A. M. Pence, as arbitrators as aforesaid, appointed a time and place for the hearing of the matters in controversy under said agreement at Chicago, Illinois; that we and the said A. M. Pence, as arbitrators as aforesaid, gave due notice of such time and place to the respective parties to said agreement, and that said arbitrators were attended by all of the said parties and their respective counsel at the said hearing and each and every adjournment thereof, and that before the taking of any testimony by the said arbitrators, and at the first hearing on the 20th day of February, 1904, the oath of said arbitrators was waived by all of the said parties to said agreement; and further, we, the said Hiram T. Gilbert and David F. Lane, two of the said arbitrators, we, together with the said A. M. Pence, having heard the evidence, both oral and documentary, of the respective parties, and having examined all the matters in controversy under said arbitration agreement, each and all of said arbitrators having been present at each and every hearing and having heard all the evidence adduced by the respective parties, and having heard the arguments of counsel for the respective parties and being fully advised in the premises, each and all of said arbitrators having joined in the deliberations upon the matters in issue under the said agreement and having proceeded in all respects in accordance with the terms of said agreement, do further hereby make and publish this our award in writing:

“First—With respect to the claims and demands of said Neis O. Hultberg, so far as the White Star Mining Company of Illinois and Claes W. Johnson are concerned, we decide that said Neis O. Hultberg is the owner of that certain placer mine and mining claim mentioned in said agreement, known as and called ‘No. 9 Above, on Anvil creek,’ situate in the Cape Nome mining and recording district, in the District of Alaska, and we award to him, said Neis O. Hultberg, the said placer mine and mining claim, and direct the said White Star Mining Company of Illinois to forthwith convey and deliver possession thereof to said Neis O. Hultberg; and we further decide that the output of said placer mine and mining claim, and the gold extracted therefrom during the mining season of 1903, after deducting therefrom a sufficient amount of gold or moneys to pay and defray all the expenses of said White Star Mining Company of Illinois and said Claes W. Johnson in operating said mine and mining claim, including labor and material purchased therefor during said time, and also after deducting therefrom the further sum of $9000, which said last mentioned sum is to be had and received by said Johnson out of said output for his personal services, which said output, after making the deductions aforesaid, is the sum of $26,000, belongs to said Neis O. Hultberg, and we award said sum to him, the same to be accounted for by said White Star Mining ’ Company of Illinois and by said Claes W. Johnson and turned over by them to said Neis O. Hultberg immediately.

“Second—With respect to the claims of said Neis O. Hultberg against said Peter H. Anderson, we decide that said Neis O. Hultberg is entitled to recover from said Peter H. Anderson the sum of $232,200, and we award said sum to said Neis O. Hultberg, to be paid to him immediately by said Peter H. Anderson.

“Third—We award to the said Neis O. Hultberg the sum of $250 to be paid by said White Star Mining Company of Illinois and Claes W. Johnson jointly, and the further sum of $250 to be paid by said Peter H. Anderson, as his statutory costs and expenditures incurred by him in and about said arbitration, the said sums, amounting in all to $500, being agreed upon as correct and just by the said parties, and all other costs and expenses of said arbitration having by the agreement of the parties been paid out of moneys furnished said arbitrators for that purpose by said White Star Mining Company of Illinois, Claes W. Johnson and Peter H. Anderson, the amount so paid and furnished by said White Star Mining Company of Illinois and said Johnson being $1436.25 and the amount so paid by said Peter H. Anderson being $3750.

“We make the foregoing award as a full and complete decision and determination of all the matters of difference between the said parties submitted to us by said agreement of special submission to arbitration.

“Witness our hands and seals this 13th day of April,

A. D. 1904.

Hiram T. Gilbert, [seal].

David F. Lane. [seal]”

On April 15, 1904, Hultberg filed a bill in the circuit court of Cook county for the purpose of having judgment entered upon the award, as provided by statute. The day following, the White Star Mining Company, Johnson and Anderson entered their appearance in that suit and moved the court to vacate, set aside and annul the award; and the White Star Mining Company filed its. bill in the superior court against Hultberg, Johnson, the Swedish Evangelical Mission Covenant of America and the Merchants’ Loan and Trust Company, praying' that the award above mentioned be set aside, invalidated and held for naught, and that the title of the complainant be established by the decree of said court as against the claim of Hultberg and the covenant; also asking for an injunction restraining the Merchants’ Loan and Trust Company from paying out a certain sum of money which had been disposed of by the award of the arbitrators. This last bill was subsequently amended, and by agreement of the parties the cause was transferred to the circuit court to be heard in connection with the bill filed for judgment on the award. Johnson and Anderson each filed answers and cross-bills attacking the award on substantially the same grounds alleged in the bill filed by the White Star Mining Company, which were, in substance, as follows:

(1) The submission agreement was special, and the arbitrators were bound to decide the controversy on legal and competent evidence only, and according to law, which they failed to do.

(2) At the date of the submission the claim for the proceeds of the mine prior to June 17, 1905, contended for, was held and controlled by the covenant, which had not signed and was not a party to the submission, and such claim was not acquired by Hultberg until September 8, 1903, nearly a month after the submission, and. the award including such proceeds is void.

(3) Anderson was deprived of such an accounting as under the contract and in fairness and justice he was entitled to, and for this reason the award is vitiated.

(4) The award is void and should be set aside because the arbitrators made a gross mistake, and were guilty of such misconduct as amounted, in law, to a fraud, in awarding against Anderson the sum of $80,000, being the proceeds of the mine in 1902, when it was the property of the White Star Mining Company of California.

(5) The arbitrators made a mistake of law in disregarding the settlement between the covenant and Anderson and the written release executed by the covenant to Anderson.

(6) The bill to enforce the award is a bill for the specific performance of a contract, and the relief thereunder should not be granted for the reason that the award is inequitable and unjust.

(7) There was a mistake made by the arbitrators as to the question of the existence of a trust; that Hultberg is estopped; and the award is in violation of the United States constitution, depriving the parties of their property without due process of law; also that the circuit court erred in disposing of the $6813.75 on deposit with the trust company.

The defendants Hultberg and the covenant insist, by their answer, first, that the arbitration agreement was valid and binding upon all the parties purporting to sign it; that the hearing before the arbitrators was in strict accordance with the submission agreement and the award was within its terms; that in the absence of actual fraud the court wilhnot disturb the award of the arbitrators.

• Issues being joined on the bills and cross-bills of the parties, the causes, as consolidated, were heard by the chancellor in open court, and a decree was entered dismissing the original and amended bill of the White Star Mining Company and the cross-bills of Claes W. Johnson and Peter H. Anderson, and granting the relief prayed in the bill of Hultberg. The decree found that Peter H. Anderson should forthwith pay to Hultberg the sum of $232,200, with interest thereon at the rate of five per cent per annum from April 13, 1904, and that in default of payment execution issue thereon, and that Hultberg be at liberty to apply to the court for such other and further orders as should be necessary to compel said payment; that the White Star Mining Company and Claes W. Johnson pay to Hultberg the sum of $23,-686.25, with interest thereon at the rate of five per cent from April 13, 1904, and that in default thereof execution issue, and that Hultberg have the privilege of applying to the court for such orders as should compel payment; that the Merchants’ Loan and Trust Company should pay to Hultberg the sum of $6813.75, and that in default of payment execution issue thereon; that the White Star Mining Company should deliver to Hultberg possession of claim No. 9 Above, and that in default of said delivery Hultberg should be permitted to apply to the court for such orders as would compel such delivery; that the White Star Mining Company execute and deliver to Hultberg a good and sufficient conveyance of claim No. 9 Above, conveying all of the title of the White Star Mining Company, and that in default of such conveyance Hultberg should be permitted to apply to the court for necessary orders. The court reserved jurisdiction for the purpose of determining the question of appointing a receiver and the fixing of a proper bond to be given by the White Star Mining Company. From this decree an appeal has been prosecuted to this court by the White Star Mining Company, and errors have been assigned both by Johnson and Anderson separately.

At a former term a motion was made by appellees Hultberg and the covenant to dismiss the appeal on the ground that a freehold is not involved, and this court is therefore without jurisdiction. In support of the motion it is insisted that the fee simple title to claim No. 9 Above, according to the allegations of the second amended bill, is still in the United States, and the appellant, instead of having a freehold, has simply the right to acquire one if it chooses.

Section 910 of the Revised Statutes of the United States provides that no possessory action between persons in any court of the United States for the recovery of a mining title or for damages to any such title shall be affected by the fact that the paramount title to the land in which such mine lies is in the United States, but each case shall be judged by the law of possession. In the case of Aspen Mining Co. v. Rucher, 28 Fed. Rep. 221, Mr. Justice Brewer, touching this question, said: “It is well to understand definitely what the title of these parties is. The averment of the bill is that they are owners and in possession. The answer, admitting the ownership, simply pleads that the patent has not issued and that the fee simple title remains in the government. The import of these averments is that the equitable title is in the parties, the legal title in the government. The property is called a ‘mining claim/ and it is alleged in the bill that it was discovered and located by certain parties in 1880, all of whose interests have become vested in the present litigants. The statutes of the United States provide that upon performance of certain conditions the discoverer of a mine becomes entitled to a patent. If all these conditions have been performed the full equitable title is vested in the discoverer, and all that the government retains is the naked legal title in trust for the equitable owner. If only partially performed he has an absolute right of possession and an inchoate title, which further performance will perfect and complete. Such a right, possessory in its nature, yet coupled, under existing laws, with further rights as to acquisition of title, is declared by the statutes and the decisions of the Supreme Court of Colorado to be a real estate title. Such a property passes to the heir, is subject to seizure and sale as real estate, must be conveyed by deed and is subject to partition.”

In Merritt v. Judd, 14 Cal. 61, the question was as to the nature of -the tenure by which mineral lands in that State were held. It was urged in argument that the occupant of a mining claim is not the owner of a freehold estate in the premises, and not being such owner, had, consequently, no right to the fixtures therein,- but that the Federal government was the owner of the soil. The court said: “From an early period of our State jurisprudence we have regarded these claims to public mineral lands as title. They are so, practically. * * * Our courts have given them the recognition of legal estates of freehold; and so, to all practical purposes, if we except some, doctrines of abandonment not, perhaps, applicable to said estates, unquestionably they are; and we think it would not be in harmony with this judicial system to deny to them the incidents of freehold estates in respect to this matter.” To the same effect is Hughes v. Devlin, 23 Cal. 501.

In Gwillin v. Donnellan, 115 U. S. 45, the court said: “The title to the vein depends upon the right to the occupancy or the ownership of its apex within the limits of the right to the occupation of the surface. This right may be acquired by a valid location and continued maintenance of a mining claim or by a patent from the United States for the land. * * * A valid and subsisting location of rhineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located.”

In Manuel v. Wulff, 152 U. S. 505, Chief Justice Fuller delivering the opinion said: “By section 2322 it is provided that when such qualified persons shall have made discovery of mineral lands and complied with the law they shall have the exclusive right to possession and enjoyment of the same. It has therefore been repeatedly held that mining claims are property in the fullest sense of the word, and may be sold, transferred, mortgaged and inherited without infringing the title of the United States, and that when a location is perfected it has the effect of a grant by the United States of the right of present and exclusive possession.”

Applying these authorities to the question at issue, admitting the title was in the United States, yet there had been a compliance with all of the requirements of law with reference to the acquisition of the claim, and the rights acquired thereunder could be maintained against all other parties. In the light of these facts a freehold- was involved and the appeal was properly perfected to this court. Decisions of this court cited in support of the motion are not in point.

It is, however, insisted that the statute of this State was not intended to cover freeholds located in other States or territories, and for this reason the suit could not be maintained. In the case of Alexander v. Tolleston Club, no Ill. 65, we said (p. 77) : “It is well settled that courts of equity may decree the specific performance of contracts respecting land situated beyond the jurisdiction of the State where the suit is brought. The ground of this jurisdiction, as said by Story, is, that courts of equity have authority to act upon the person; and although they cannot bind the land itself by their decree, yet they can bind the conscience of the party in regard to the land and compel him to perform his agreement according to conscience and good faith. * * * And in Massie v. Watts, 6 Cranch, 148, Chief Justice Marshal] delivering the opinion of the court, it is laid down ‘that in a case of fraud, of trust or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.’ ” To the same effect is the case of Craft v. Indiana, Decatur and Western Railway Co. 166 Ill. 580. The court in the case at bar had jurisdiction of the parties by personal service and could enforce its decree in personam, and therefore had jurisdiction of the subject matter.

There is no substantial merit in the motion made to strike the assignments of error of Johnson and Anderson from the record, and it will be overruled.

An attempt was made in the court below by the appellant to deny its signature to the agreement of submission, for the reason, as it claimed, that the execution of that submission was not authorized by the board of directors of the White Star Mining Company but was only signed by its president. We think the circuit court properly held that the signature of the president, with the seal of the corporation, made the agreement binding upon the company. The record shows that it participated in the selection of the arbitrators, and in all the proceedings before them up to the time of the final decision of the case, without any objection whatever. It would require a strong showing of want of power in the officer signing the articles of submission on its behalf, to justify a court in permitting the corporation to stand by, act upon that agreement throughout the entire arbitration proceedings, and then repudiate the agreement after the decision of the arbitrators was rendered against it.

On the merits of the case, that rVhich is entitled “Brief and argument for appellant,” consists of 256 pages. The first 145 pages consist of a commingled statement of facts, law and argument, one heading being, “Argument on the facts.” Following these 145 pages, beginning on page 146 is the title “Brief.” The preceding pages are in direct violation of rule 15 of this court. Counsel perhaps realized that fact, and sought to make the remaining portion conform to the rule by stating briefly the points and following the same by the argument. This, case well illustrates the wisdom of the foregoing rule as an aid to the court in reaching a conclusion as to the law and facts of the case. It would be impossible to follow the brief and argument as a whole. We shall consider only the latter part of it as above indicated, which we regard as sufficiently covering the case. Two of the points are as follows:

(1) “If the submission be general to hear and decide all questions without any directions or limitations in the articles of submission, the award is conclusive, and cannot be set aside unless it shall appear from the opinion of the arbitrators, or by their admission, that they intended and meant to decide according to law. In such a case a mistake in the law confers judisdiction upon the court to review and impeach and set aside such award.

(2) “If the submission be special, providing that the arbitrators must decide according to law and give to the parties the benefit of the law touching the matters submitted, then such question whether they shall have so decided is jurisdictional, and their mistake as to the law must be investigated and relief will be granted.”

The first of the foregoing propositions is not an accurate statement of the law. The rule is, that if an award is in conformity with the general submission and no fraud or mistake appears upon the face of the award, it will not be interfered with or set aside by the court for errors, either of law or fact, committed by the arbitrators. This court held in the case of Sherfy v. Graham, 72 Ill. 158, that arbitrators, “by the submission, become judges, by the choice of the parties, both of the law and the facts, and there is no appeal or review from or of any decision made by them within the scope of their powers, except for fraud, partiality or misconduct. ( Citing several prior decisions of the court.) Nor will a mistake of law or fact by the arbitrators be a ground for setting aside an award, but a mistake in the draft of the award may be reformed so as to conform to the one actually made by the arbitrators. (Pulliam v. Pensoneau, 33 Ill. 375.) Thus it will be seen that there are but few grounds upon which a finding may be set aside or reviewed.”

In Barchell v. Marsh, 17 How. 344, the Supreme Court of the United States held the following language: “Arbitrators are judges chosen by the parties to decide the matters submitted to them finally and without appeal. As a mode of settling disputes it should receive every encouragement from courts of equity. If the award is within the submission and contains the honest decision of the arbitrators after a full and fair hearing of the parties, a court of equity will not set it aside for error, either in law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement—not the end—of litigation. Tn order,’ says Lord Thurlow, (Knox v. Symmonds, 1 Ves. Jr. 369,) ‘to induce the court to interfere there must be something more than an error of judgment, such as corruption in the arbitrator or gross mistake, either apparent on the face of the award or to be made out by evidence ; but in case of mistake it must be made out to the satisfaction of the arbitrator, and that if it had not happened he should have made a different award. Courts should be careful to avoid a wrong use of the word ‘mistake,’ and by making it synonymous with mere error of judgment assume to themselves an arbitrary power over awards. The same result would follow if the court should treat the arbitrators as guilty of corrupt partiality merely because their award is not such an one as the chancellor would have given. We are all too prone, perhaps, to impute either weakness of intellect or corrupt motives to those who differ with us in opinion. * * * Evey presumption is in favor of the validity of an award. * * * If they [the arbitrators] have given their honest, incorrupt judgment on the subject matters submitted to them, after a full and fair hearing of the parties, they are bound by it, and a court of chancery has no right to annul their award because it thinks it could have made a better.”

Among the many cases sustaining the same proposition may be cited Huckstein & Co. v. Kaufman & Bros. 173 Pa. St. 199; Jones v. Boston Mills, 6 Pick. 155; Johnson v. Noble, 13 N. H. 286; Harris v. Social Manf. Co. 41 R. I. 133; Goodard v. King, 40 Minn. 464; Wood-working Co. v. Snyder, 119 N. Y. 475; Perkins v. Wing, 10 Johns. 147; Herrick v. Blair, 1 Johns. Eq. 101.

We do not understand there is any conflict in the decisions, either in this country or England, to the effect that courts of equity will not set aside an award for errors, either of law or fact, except for mistake, corruption or fraud on the part of the arbitrators. The award in this case is clearly within the terms of the submission and decides the questions which by that submission the arbitrators were required to decide. Nor have we been able to find any proof of misconduct or partiality on the part of the arbitrators, and certainly nothing of that kind appears upon the face of the award itself. Therefore, treating the submission as general and the award within the submission, no fraud or mistake of law or fact appearing upon the face of it, the foregoing decisions clearly sustain the decision of the circuit court in refusing to interfere with or set aside the award.

It is, howevér, earnestly insisted on behalf of the appellant that its case does not fall within the foregoing authorities, for the reason that the submission here was not general, but special. The second proposition, as shown above, is, that this submission is a special one, providing that the arbitrators must decide according to the law, etc., and therefore the question whether they shall have so decided is jurisdictional, and their mistakes as to the law must be investigated and relief will be granted. Upon the soundness of this position the appellant’s case must, in our opinion, stand or fall. A long list of authorities is referred to in support of the conclusion announced, but an examination of the authorities will show that they do not unqualifiedly sustain the proposition. Certainly the Illinois cases cited have no direct bearing upon the' question.

In the first place, just what is meant by a special submission is not made clear. This submission, on its face, seems to us a most general one. It is true that language is used in it to the effect that the decision of the arbitrators shall be upon competent evidence and according to law, but we are unable to see wherein the legal effect of the agreement, as a whole, would have been different if such language had been omitted. It is therein stipulated by the parties that the arbitrators shall be the judges of the competency of evidence; that they shall to the best of their ability hear, determine and adjudicate upon such matters in controversy on broad principles of equity and justice, having due regard as well for the moral as the legal rights of said parties and the law of the land; that the object of the parties is that there shall be a full, complete and just determination between them of all matters in controversy embraced in the agreement, regardless of all technicalities, and that such adjudication shall be had upon the broad merits of said controversy according to law; that the decision, when made and carried out as stated in the agreement, shall be for the purpose of finally ending, compromising and absolutely determining all of said differences and controversies and demands whatsoever had, made, arising or accruing, or which at any time or times might be had by or between said parties, for or by reason or means of said mine, mining claim or the proceeds thereof, in any manner or thing relating thereto or resulting therefrom; that the parties, and each of them, agree to abide by, carry out and perform any decision and determination arrived at by said arbitrators or a majority of them, and that all the parties executing the agreement thereby appoint the said arbitrators, or such of them as might act thereunder, as their agents, respectively, for them and in their behalf to settle finally and conclusively all of said claims and demands made by the said Neis O. Hultberg, as therein set forth, and agree to be bound by the acts of their said agents.

The parties undoubtedly intended that the arbitrators should decide in conformity with the law and equity of the case, and that is generally the intention of parties submitting matters in controversy to arbitration; but there is nothing in the article of submission in the present case to indicate that they did not intend that the arbitrators themselves should be the judges of the principles of law governing the rights of the parties. There is no provision made for a review by the courts, nor are the arbitrators required to refer any question to the courts for determination. Had the circuit court set aside the award, it must, as we think, have done so merely because it entertained a different view of the law from that adopted by the arbitrators, the result of which would have been to render this and all similar arbitration absolutely futile. The parties themselves, at the time they entered into the agreement to arbitrate all differences between them, certainly entertained radically different views of the law,—that is, they must have widely differed in their understanding as to the law governing the creation of trusts, the binding effect of the agreement on behalf of the covenant to release its claim to the property, and so as to all other matters of difference. It was to settle that dispute that the matters in controversy were referred to arbitration, and yet the position of appellant now is that the parties only intended to be bound by the decision of the arbitrators provided their decision sustained its, or his, contention as to what the law was. If that is so, then the controversy was no nearer a settlement after the award than before. Either party finding his views of the law not sustained by the award could go into court and have it set aside or have the court determine his legal rights. If such a position is tenable, then, indeed, as said by the Supreme Court in Barchell v. Marsh, supra, the award was the commencement, and not the end, of litigation. The law applicable to the facts of any given case cannot be stated with absolute certainty. Rules of law may be accepted as settled, but it is well known that in the application of those rules or legal'principles to different facts, courts and lawyers, as well as parties interested, may, and often do, differ very widely. The case was to be decided according to law, but the arbitrators, in the absence of an expressed intention to the contrary, were to be their own judges as to what the law was, otherwise the parties would have provided that the case should be subject to review by the courts or that the legal questions should be referred to some other tribunal for final determination. Had that been done the submission might properly be called a special submission. Moreover, we think the better reasoned cases sustain the view that even where the articles of submission clearly and unqualifiedly require the decision of the arbitrators to be according to law or in comformity with the principles of the law, the language is not to be construed as a limitation upon the power of the arbitrators, but as merely directory.

Bigelow v. Newell, 10 Pick. 348, was a proceeding to avoid an award made by arbitrators on a submission in which they were only authorized to decide according to the legal rights of the parties, the language being, “always having regard to the legal rights of the parties,” and Chief Justice Shaw rendering the opinion of the court, said: “A reference to the general effect and terms and obvious purpose and design of this agreement will show that the clause in question, ‘always having regard to the legal rights of the parties,’ was intended to prescribe a rule for the government of the referees as to the principles upon which they were called upon by the parties to decide, and not as a limitation of their authority. The latter would in a great measure have defeated the purposes of the reference.”

In Mickels v. Thayer, 14 Allen, 114, Chapman, J., speaking of the submission before the court, said: “The next clause is important: ‘The said referees are to determine all questions according to the rules of law and equity, the same as though the matter was to be tried in a court of law or equity.’ One of the principal questions made in the case is whether this clause is to be interpreted as a limitation of the power of the arbitrators or whether it is merely directory. If it is directory, it leaves them to be the ultimate judges as to how the matter would be tried in a court of law or equity, and thus makes their decision final and conclusive, as the parties agree it shall be. But if it is a limitation of the powers, then the award is not final or conclusive, but this court is the ultimate tribunal to decide how the principal questions ought to be settled. It is an objection to this view that the only power thus left to this court is of a destructive character in case of our disagreement with the arbitrators. We may destroy the award but have no power to correct it. The agreement is to be interpreted in the light of the settled principles of law. In Fairchild v. Adams, 11 Cush. 549, Chief Justice Shaw says: ‘It has long since been settled that awards are conclusive on all matters of fact submitted to the arbitrators.’ He also says that ‘in the State courts it has been a very regular course for many years to hold that where no error or mistake appears upon the face of the award the decision of the referees is conclusive in law.’ He enumerates the exceptions to this rule, as where there has been unfair conduct on the part of the referees; where they are deceived by one of the parties to the injury of the other; and when there is raised, on the face of the report itself, a question of law which is submitted by the referees to the judgment of the court. It had been previously settled that when unfairness or corruption on the part of the arbitrators was alleged, their conduct might be fully investigated on that point in a suit to enforce the award. (Strong v. Strong, 9 Cush. 568.) In commenting in Pair child v. Adams upon the case of Bigelow v. Newell, 10 Pick. 348, where the parties used, in their agreement of submission, the phrase ‘always having regard to the legal rights of the parties,’ and where the award was held to be valid though it was not in all respects conformable to law, the chief justice forcibly states the principle upon which awards stand: ‘The ultimate reason for maintaining any award is, indeed, that the parties have selected their own arbitrators and agreed to refer certain things to their determination as their attorneys. And it is idle to say that they have a right to do that, and that when they have done it the decision of the arbitrators, fairly made, is not final.’ The decision in Bigelow v. Nezvell, that the clause ‘always having regard to the legal rights of the parties’ is not a limitation of the authority of referees, is applicable to the clause in question in this case. Evidence was admitted de bene esse as to .all the proceedings of the arbitrators and the evidence upon which they made their award. There is nothing in it to show that they did not hear the parties fully and fairly or that they acted under the influence of improper motives, nor is such misconduct imputed to them. Gross errors and mistakes in their conclusions of fact and of law are alleged, and that is all. But it is not alleged that any of these mistakes or errors are apparent upon the face of the award. As to the matters of fact, the learned counsel of the defendants have argued to us that from the evidence which was before them they ought to have decided the facts differently. But as we have no right to look into the evidence for the purpose of correcting their errors of judgment, in the absence of fraud, the argument can avail nothing.” The foregoing language is clearly applicable to the case at bar and we regard the reasoning unanswerable.

In In re Curtiss, 64 Conn. 504, the submission provided that the arbitrators “shall proceed upon the principles of equity in hearing the matters in dispute and make their award, it being the desire of both parties that the matters in dispute between them shall be equitably settled and adjusted, so each may have all that is equitably due to him from the other.” Andrews, C. J., rendering the opinion of the court, said: “Counsel for the appellant, in their brief, speak of this, designation of the authority given to the arbitrators as a limitation. We do not so read it. To us it seems rather a liberal and highly creditable grant of power. In hearing the matter committed to them, and in making their award, the arbitrators are commanded to act upon the principles of equity, to the end that each of the parties may have from the other all that he is equitably entitled to.”

Cases are to be found holding that when the parties have clearly indicated their intention that the award shall be in conformity with the principles of law, and proceed upon the assumption that the arbitrators know the law and are only to inquire into the facts and apply the rules of law to those facts in their decision, and it is shown by the award itself, to a court of competent jurisdiction, that the arbitrators decided contrary to law, the award will be set aside, the reason being, that the arbitrators have mistaken the law which they were presumed to understand, and the decision is not within the scope of their authority as determined by the submission, and is for that reason void. But when the parties have expressly or by reasonable implication submitted the questions of law as well as the questions of fact arising out of the matter in controversy, the decision of the arbitrators on both subjects is final. It is upon the principle of res judicata, on the ground that the matter has been judged by a tribunal which the parties have agreed to make final and a tribunal of last resort for that controversy, and therefore it would be as contrary to principle for a court of law or equity to re-judge the same question as for the inferior court to rejudge the decision of the superior court, or for one court to overrule the judgment of another where the law has not given jurisdiction or a revising power acting directly upon the judgment alleged to be erroneous. (Opinion by Chief Justice Shaw in Boston Water Co. v. Gray, 6 Metc. 131.)

The authorities also hold that where it appears from an award that the arbitrators base their decision upon certain rules of law or upon a finding of certain facts, and it is clearly apparent that they misapprehended the law or the facts, a court of equity will set the award aside or reform it upon the ground of mistake. But in such cases the facts must appear on the face of the award itself. In Harris v. Social Manf. Co. 41 R. I. 133, Bullock, J., used this language : “Again, it is said the award is founded upon a ‘plain mistake in law.’ The rule is, that when parties, in express terms or by plain implication, submit both the law and the facts of a controversy, the decision of the arbitrators is final and conclusive and the award becomes in the nature of a judgment of a court of the last resort. There is an exception to this rule when a plain mistake in the law appears on the face of the award. In such a case the arbitrators undertake to decide according to law and the award shows they have not so determined, and so a plain mistake in fact where the mistake appears upon the face of the award. But such mistake should not only thus appear, but be a mistake so affecting the principle upon which the award is made, and be so plain and material, that if the arbitrators had been apprised of it before making the award they would have awarded differently. Mere error of judgment is no ground for setting aside an award; neither that the arbitrators have drawn, apparently, wrong conclusions from the facts or the evidence.” Cockburn, C. J., in Hodgkinson v. Fernie, 3 C. B. (N. S.) 189, on the same subject, says: “But the modern cases which have been cited certainly go to the length of deciding that unless there be something upon the face of an award to show that the arbitrator has proceeded upon grounds which are not sustainable in point of law, the court will not entertain an objection to it.”

In Jocelyn v. Donnel, Pick. (Tenn.) 274, (14 Am. Dec. 153,) Haywood, J., said: “An award good upon the face of it cannot be impeached but upon objections which go to the misbehavior of arbitrators. If the reception of illegal evidence appear upon the award it may be set aside, or if a mistake of fact appear upon the face or by confession of the referee it shall be re-committed; but the court cannot inquire, by extrinsic testimony, into the justice of the award, for that would be to try the matters in dispute de novo. If the arbitrators, upon their award, have meant to go by the rules of law and have mistaken the same, the award may, perhaps, be set aside for such mistake, though even this is doubtful. But where no such intent appears in the face, the most obvious deviation from the rules of law will not vitiate the award. Arbitrators are to decide according to their own opinions of equity and conscience, without being tied down to the observance of precedents, either of law or equity, or of any other positive rules.”

By reference to the award set out above it will appear that it does not purport to be based upon any stated rules of law or particular finding of facts.

Counsel for the appellant, however, seem to hold, that in determining whether the arbitrators mistook or misunderstood the law we may take into consideration the written separate statement of the arbitrator Hiram T. Gilbert. The authorities, so far as we have been able to ascertain, hold the contrary view, even where the arbitrators declare that such statements or opinions are to be taken as a part of the award. In Smith v. Boston and Maine Railroad Co. 16 Gray, 521, the arbitrators, after signing the award, attached a memorandum signed by them, to the effect that “a statement of the facts and principles upon which the foregoing award was made is at the request of the said Smith hereto annexed, signed by the said arbitrators and to be taken as part of said award,” and the court said: “The only possible ground for raising any question as to the conclusiveness of this award is that founded upon the supplemental paper accompanying the award, signed by the arbitrators and in these words: * * * The further inquiry is whether this instrument signed by the arbitrators brings the case within the class of cases in which the courts have revised the doings of the arbitrators, and held the award invalid if found erroneous in its decisions upon matters of law arising in the case. One of the familiar cases where such supervision is exercised is where the arbitrator, by his award, refers the questions of law to the decision of the court, making his award in the alternative, as the court may pronounce the law. This is very intelligible, and adapted to all cases where the arbitrator does not purpose to have his award final and where the award is returnable to the courts of law. That is not the present case, however. Another case stated in the authorities upon this subject, and that upon which this award is to be set aside, if at all, is this: ‘Where it is manifest, upon the award, that the arbitrator intended to decide according to law but has mistaken the law.’ This ground has been supposed to open awards where the report of the arbitrators has presented, on its face, the full ground of the making the award for supervision,—and many cases may be found of its recognition. This proposition assumes that the error is manifest on the award itself, and, as it seems to us, it must be taken with the qualification that the award so clearly indicates the purpose of the arbitrator to decide by the strict rule of law, that it justifies the judicial mind in supposing that the arbitrator would have made a different award had he known that the judicial tribunal held a different view of the questions of law arising in the case from those entertained by himself.” .And the court then proceeds to hold, in a well considered opinion, that said statement could not be properly considered as a part of the award for the purpose of impeaching it. The opinion of the arbitrators which binds the parties is that which they have expressed by their award. Judgments of courts do not depend upon the opinions rendered in the courts, neither can the validity of awards be made to depend upon the soundness of the opinions of the arbitrators not shown by the awards.

Our conclusion is that there is no theory of the law upon which a court of equity can take jurisdiction of this case to review and set aside the decision of the arbitrators, and that all questions urged for our decision which have been passed upon by the arbitrators, as shown by their award, are res judicata here.

We have attentively considered the other questions raised in the argument and urged as grounds of reversal of the decree below, but find them without sufficient merit to justify an extension of this opinion by commenting upon them. We think the chancellor who heard the cause in the court below decided it correctly, and the decree will be affirmed.

Decree affirmed.