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ARBITRATION AND AWARD.

§ 69. Submission to arbitration. A submission to arbitration may be by parol, with mutual promises to perform the award; or by deed or by rule of court;(a) or by any other mode pointed out by statute. In the first case, the remedy may be by an action of assumpsit, upon the promise to perform the award; in the second, it may be by debt for the penalty of the arbitration bond, or by covenant, upon the agreement or indenture of submission; in the third case, it may be by attachment, or by execution upon the judgment entered up pursuant to the rule of court, or to the statute ; and in any case it may be by an action of debt upon the award. An award duly made and performed may also be pleaded in bar of any subsequent action for the same cause." (6)

1 In the simplest form of arbitration, namely, a verbal submission to a single arbi. trator, the declaration is as follows : “For that on there were divers controversies between the plaintiff and the said D, concerning their mutual accounts, debts, and dealings, and thereupon they then, at , by their mutual agreement, appointed one E to hear and determine for them all the said controversies, and mutually promised each other to stand to, abide by, and perform the award of the said Ethereupon. And the said E afterwards, on there heard the plaintiff and the said D, and adjudged upon the premises, and awarded that the said D should pay to the plaintiff a balance of -- on demand, and publish [and notified the said parties of) the same. Yet,” &c.

The following form is proper, where the agreement is in writing without scal, and the submission is to three persons, with power in any two to make an award : "For that whereas on there were divers controversies between the plaintiff and the said

(a) The power of a court of justice, with tling the amount of damage, or the time of the consent of the parties, to appoint arbi- paying it, or the like, will be sustained. trators and refer a case pending before it, Wood v. Humphrey, 114 Mass. 185; Cobb is incident to all judicial administration v. N. E. Insurance Co., 6 Gray (Mass.), where the right exists to ascertain the 192; Trott v. City Insurance Co., 1 Cliff. facts as well as to pronounce the law. C. Ct. 439 ; Scott v. Avery, 5 H. of L. Newcomb v. Wood, 97 U. S. 581. The Cas. 811. If a person agrees to pay ansnbmission and the award may both be by other for an article if it accomplishes a parol. The law requires no particular form certain purpose, and a third party is to to establish a valid submission. When it make the test, his decision is in the nature is by parol, the fact must be established to of an award. Robbins v. Clark, 129 Mass. the satisfaction of the jury by a prepon- 145. derance of the evidence. Gayo. Waltman, (6) The tendency of modern jurispru89 Pa. St. 453.

dence is to give force, conclusiveness, and Any agreement in a contract to submit effect to all awards, where there is no corany questions arising under the contract ruption or misconduct on the part of refto arbitration in such a way as to entirely erees, and where no deception has been oust the courts of jurisdiction will not be practised upon them. By Shaw, C. J., in supported at law or in equity, but those Fairchild v. Adams, 11 Cush. 550; Strong which are only preliminary or auxiliary v. Strong, 9 Id. 560; Kendrick v. Tarbell, thereto, such as respect the mode of set. 26 Vt. 416; Ebert v. Ebert, 5 Md. 353.

§ 70. Form of action. The action of debt on the award itself is sometimes preferable to any other form of action, inasmuch as, if judgment goes by default, it is final in the first instance, the sum to be recovered being ascertained through the medium of the award; whereas in debt on the bond, breaches must be suggested and a hearing had pursuant to statutes; and in assumpsit, and in covenant, the judgment by default is but interlocutory. But this is only where the award is for a single sum of money ; for if it is to do any other thing, the remedy should be sought in some other mode. Where the submission is by deed, with a penalty, the best form of action is debt for the penalty ; for, by declaring on the award, the plaintiff takes upon himself the burden of proving a mutual submission; but, by declaring on the bond, he transfers the burden to the defendant, on whom it will then lie to discharge himself of the penalty, by showing a performance of the conditions.2

$ 71. Authority of arbitrator. In proving an award, it must first appear that the arbitrators had sufficient authority to make it.3 D concerning their mutual accounts, debts, and dealings, and thereupon they then, by their mutual agreement in writing, submitted and referred said controversies (and all other mutual demands between them) to the final award and determination of A, B, and C, and in and by said writing further agreed (here set out any other material parts of the agreement] that the award of the said A, B, and C, or any two of them, being duly made in the premises, [in writing, and ready to be delivered to the said parties or either of them on or before (or) and duly notified to the parties, as the case may have been), should be binding and final; and the plaintiff and the said D then and there mutually promised each other to stand to, abide by, and perform the award so made. And the plaintiff avers, that the said A, B, and C afterwards heard the plaintiff and the said D upon all the matters referred to them as aforesaid, and thereupon, on — the said (A and B, two of said] referees (the said C refusing to con. cur therein) made and published their award (in writing) of and concerning the premises (and then and there duly notified the said parties of the same), and did thereby award and finally determine that there remained a balance due from the said D to the plaintiff of to be paid to the plaintiff (on demand), (&c.). Yet,” &c.

The account in covenant contains averments similar to that in assumpsit.
The count in debt on an award is as follows : “For that whereas the said D on

was indebted to the plaintiff in the sum of , upon and by virtue of an award made by one E, on a submission before that time made by the plaintiff and the said D to the award and determination of the said E, concerning certain matters in difference then depending between the plaintiff and the said D, and upon which said reference the said E awarded that the said D should pay to the plaintiff the sum of money aforesaid, upon request ; whereby, and by reason of the non-payment whereof, an action has accrued to the plaintiff, to demand and have of and from the said D the sum aforesaid. Yet the said D has not paid the same, nor any part thereof. The damage," &c. An allegation of mutual promises to abide the award would vitiate this declaration. Sutcliffe v. Brooke, 9 Jur. 1112 ; 14 M. & W. 855.

1 Steph. N. P. 180. In those of the United States, in which the damages, upon default, are made up forthwith by the court, or by a jury impanelled on the spot, without a writ of inquiry, this mode of remedy does not seem to possess any practical advantage over others.

2 Ferrer v. Oven, 7 B. & C. 427, per Bayley, J. 3 Antram v. Chase, 15 East, 209. An attorney has no sufficient authority to refer

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If the agreement of submission was in writing, it must be produced, and its execution by all the parties to the submission must be proved.' (a) Therefore, where four persons, being copartners, agreed to refer all matters in difference between them, or any two of them, to certain arbitrators, who made an award in which they found several sums due to and from the partnership, and also divers private balances due among the partners from one to another; in an action between two of them upon the award to recover one of these private balances, it was held necessary to prove the execution of the deed of submission by them all; the execution of each being presumed to have been made upon the

dition that all were to be bound equally with himself.? the submission was by rule of court, an office copy of the rule will be sufficient proof of the judge's order. But if the agreement of submission is attested by witnesses, and its execution is denied, the rule or order by which the agreement was made a rule of court is not the proper evidence of the signature of the agreement, but it must be proved by the attesting witnesses.*

$ 72. Submission. If the submission was by parol, it is material to prove not only that both parties promised to abide by the award, but that the promises were concurrent and mutual; for otherwise each promise is but nudum pactum. (6)

$ 73. Umpire. If the award was made by an umpire, his appointment must also be proved. The recital of his authority in the award signed by himself and the arbitrators is not sufficient. He cannot be selected by the arbitrators by lot, without on behalf of an infant plaintiff

. Biddell v. Dowse, 6 B. & C. 255. Nor has one partper authority to bind the firm. Stead v. Salt, 3 Bing. 101. Proof of the submission has been held necessary even after the lapse of forty years. Burghardt v. Turner, 12 Pick. 534.

i Ferrer v. Oven, 7 B. & C. 427.
2 Antram v. Chase, 15 East, 209. See also Brazier v. Jones, 8 B. & C. 124.
3 Still v. Halford, 4 Campb. 17 ; Gisborne v. Hart, 5 M. & W. 50.

Berney v. Read, 9 Jur. 620 ; 7 Ad. & £I. N. s. 79. 5 Keep v. Goodrich, 12 Johns. 397 ; Livingstone v. Rogers, 1 Caines, 583; Kingston v. Phelps, Peake's Cas. 227. An arbitrator is a competent witness to prove the matters submitted to arbitration, and the award made thereon. Allen v. Miles, 4 Harring. 234. And see Graham v. Graham, 9 Barr, 254.

6 Still v. Halford, 4 Campb. 18. Nor is such recital necessary. Semble, Rison 7. Berry, 4 Rand. 275.

(a) The submission and award must be building is not such a question involving in writing in all cases where a contract in an interest in land as need be in writing relation to the subject matter is required under the statute of frauds. Peabody v. to be in writing, but an oral submission Rice, 113 Mass. 31. and award on the question of how much (6) Somerville v. Dickerman, 127 Mass. rent is due for the past occupation of a 272.

consent of the parties. His appointment will be good, though made before the arbitrators enter on the business referred to them; and they may well join with him in making the award. (a) And if the arbitrators appoint an umpire without authority, yet, if the parties appear and are heard before him without objection, this is a ratification of his appointment.*

$ 74. Execution of the award. The next point in the order of evidence is the execution of the award ; which must be proved, as in other cases, by the subscribing witness, if there be any, and if not, then by evidence of the handwriting of the arbitrators. If the award does not pursue the submission, it is inadmissible. If, therefore, the submission be to several, without any authority in the majority to decide, and the award is not signed by all, it is bad.® (6) And though a majority have power to decide, yet, in an award by a majority only, it must appear that all the arbitrators heard the parties, as well those who did not as those who did concur in the decision. (c) It will be presumed that all matters,

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1 Young v. Miller, 3 B. & C. 407; Wells v. Cooke, 2 B. & A. 218; Harris v. Mitchell, 2 Vern. 485 ; In re Cassell, 9 B. & C. 624 (overruling Neale v. Ledger, 16 East, 51); Ford v. Jones, 3 B. & Ad. 248. But if the parties agree to a selection by lot, it will be good. In re Tunno, 5 B. & Ad. 488.

2 Roe d. Wood v. Doe, 2 T. R. 644; Bates v. Cooke, 9 B. & C. 407; McKinstry v. Solomons, 2 Johns. 57; Van Cortlandt v. Underhill, 17 Johns. 405.

Soulsby v. Hodgson, 3 Burr. 1474; s. c. 1 W. Bl. 463; Beck v. Sargent, 4 Taunt. 232.

4 Matson v. Tower, Ry. & M. 17; Norton v. Savage, 1 Fairf. 456. 5 Ante, vol. I, SS 569-581.

6 Towne v. Jaquith, 6 Mass. 46; Baltimore Turnp. Case, 4 Binn. 481; Crofoot v. Allen, 2 Wend. 494.

? Short v. Pratt, 6 Mass. 496; Walker v. Melcher, 14 Mass. 148. But upon a rehearing, if one of the arbitrators refuses to attend, the others are competent to reaffirm the former award, Peterson v. Loring, 1 Greenl. 64; though not to revise the merits of the case, Cumberland v. North Yarmouth, 4 Greenl. 459.

(a) “An umpire is a person whom two in fact, in the same situation as a sole arbitrators, appointed and duly authorized arbitrator, and he is bound to hear and by parties, select to decide the matter in determine the case, in like manner as if it controversy, concerning which the arbitra- had been originally submitted to his detertors are unable to agree. His province is mination." Bigelow, C. J., Haven v. to determine the issue submitted to the Winnisimmet Co., 11 Allen (Mass.), 384. arbitrators on which they have failed to (6) Quimby v. Melvin, 28 N. H. 250. agree, and to make an award thereon, (c) Maynard v. Frederick, 7 Cush. which is his sole award. Neither of the (Mass.) 247. In Bulson v. Lohnes, 29 original arbitrators is required to join in N. Y. 291, where the submission was to the award, in order to make it valid and three arbitrators, with a provision that the binding on the parties. In the absence of award should be in writing, signed by the any agreement or assent by the parties to three, "or any two of them," and ready for the controversy, dispensing with a full delivery by a certain day fixed, Johnson, J., hearing by the umpire, it is his duty to says :

There can be no doubt that, at hear the whole case, and to make a dis- common law, before the Revised Statutes, tinct and independent award thereon, as under such a submission, two arbitrators the result of his judgment. He stands, might lawfully meet, and hear the proofs

included within the terms of the submission, were laid before the arbitrators, and by them considered ;(a) but this presumption is not conclusive, evidence being admissible to prove that a particular matter of claim was not in fact laid before them, nor considered in their award.1

§ 75. Notice. If the submission required that notice of the award should be given to the parties, this notice, as it must in that case have been averred in the declaration, is the next point to be proved; but if it was not required by the submission, both the averment and the proof are superfluous. It is essential, however, to allege, and therefore to prove, that the award was published ; 3 and an award is published whenever the arbitrator gives notice that it may be held on payment of his charges. If the agreement is that the award shall be ready to be delivered to the parties by a certain day, this is satisfied by proof of the delivery of a copy of the award, if it be accepted without objection on that account;5 (6) and if it be only read to the losing party, who thereupon promises to pay the sum awarded, this is sufficient proof of the delivery of the award, or rather is evidence of a waiver of his right to the original or a copy, even though it was afterwards demanded and refused.

§ 76. Demand. It is not necessary to allege, nor, of course, to prove, a demand of payment; except where the obligation is

1 Martin v. Thornton, 4 Esp. 180; Ravee v. Farmer, 4 T. R. 146; Webster v. Lee, 5 Mass. 334; Hodges v. Hodges, 9 Mass. 320; Sunith v. Whiting, 11 Mass. 445 (Rand s ed.), and cases cited in note (a); Bixby v. Whitney, 5 Greenl. 192.

2 Juxon v. Thornhill, Cro. Car. 132; Child v. Horden, 2 Bulstr. 144; 2 Saund. 62 a, n. (4), by Williams.

3 Kingsley v. Bill, 9 Mass. 198; Thompson v. Mitchell, 35 Me. 281.

• McArthur v. Campbell, 5 B. & Ad. 518; Musselbrook v. Dunkin, 9 Bing. 605. See also Munroe v. Allaire, 2 Cai. 320.

5 Sellick v. Adams, 15 Johns. 197; Low v. Nolte, 16 ml. 475. In strictness, to constitute the proper service of an award, so as to authorize an attachment for not performing it, a copy must not only be delivered, but the original must also, at the same time, be shown to the party. Loyd v. Harris, 8 M. G. & Sc. 63.

6 Perkins v. Wing, 10 Johns. 143.

and allegations of the parties, where the Watson on Arbitration, 115; Kyd on third had notice and refused to attend Awards, 106, 107; Green v. Miller, 6 and take part in the procerdings; and that Johns. 39; Crofoot v. Allen, 2 Wend. an award made by the two who heard the 495.) It was held that, by the latter inatters submitted, under such circum- clause of the submission, the entire au. stances, was a valid and binding award. thority was disjoined, so as to make it a This was settled in England, at an early submission to the lesser number to hear, day, and upon full deliberation. (Good- as well as to determine." man o. Sayres, 2 Jac. & Walk. 261; Dell. (a) Tallman v. Tallman, 5 Cush. (Mass.) ing v. Matchett, Willis, 215; 8. c. Barnes, 325; Clement v. Comstock, 2 Mich. 359. 57; Sallows o. Girling, Cro. Jac. 278; (6) Gidley v. Gidley, 65 N. Y. 169.

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VOL. II.

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