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.1 (b) 1 In the simplest form of arbitration, namely, a verbal submission to a single arbitrator, 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 E thereupon. 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 seal, 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 the consent of the parties, to appoint arbitrators and refer a case pending before it, is incident to all judicial administration where the right exists to ascertain the facts as well as to pronounce the law. Newcomb v. Wood, 97 U. S. 581. The submission and the award may both be by parol. The law requires no particular form to establish a valid submission. When it is by parol, the fact must be established to the satisfaction of the jury by a preponderance of the evidence. Gay v. Waltman, 89 Pa. St. 453. Any agreement in a contract to submit any questions arising under the contract to arbitration in such a way as to entirely oust the courts of jurisdiction will not be supported at law or in equity, but those which are only preliminary or auxiliary thereto, such as respect the mode of set tling the amount of damage, or the time of paying it, or the like, will be sustained. Wood v. Humphrey, 114 Mass. 185; Cobb v. N. E. Insurance Co., 6 Gray (Mass.), 192; Trott v. City Insurance Co., 1 Cliff. C. Ct. 439; Scott v. Avery, 5 H. of L. Cas. 811. If a person agrees to pay another for an article if it accomplishes a certain purpose, and a third party is to make the test, his decision is in the nature of an award. Robbins v. Clark, 129 Mass. 145. (b) The tendency of modern jurisprudence is to give force, conclusiveness, and effect to all awards, where there is no corruption or misconduct on the part of referees, and where no deception has been practised upon them. By Shaw, C. J., in Fairchild v. Adams, 11 Cush. 550; Strong v. Strong, 9 Id. 560; Kendrick v. Tarbell, 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.1 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 concur therein] made and published their award [in writing] of and concerning the premi ses [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 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.1 (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 condition that all were to be bound equally with himself. If the submission was by rule of court, an office copy of the rule will be sufficient proof of the judge's order.3 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.5 (b) § 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. ner authority to bind the firm. Stead v. Salt, 3 Bing. 101. has been held necessary even after the lapse of forty years. Pick. 534. 1 Ferrer v. Oven, 7 B. & C. 427. 2 Autram v. Chase, 15 East, 209. See also Brazier v. Jones, 8 B. & C. 124. Still v. Halford, 4 Campb. 17; Gisborne v. Hart, 5 M. & W. 50. Berney v. Read, 9 Jur. 620; 7 Ad. & El. 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 v. Berry, 4 Rand. 275. (a) The submission and award must be in writing in all cases where a contract in relation to the subject-matter is required to be in writing, but an oral submission and award on the question of how much rent is due for the past occupation of a building is not such a question involving an interest in land as need be in writing under the statute of frauds. Peabody v. Rice, 113 Mass. 31. (b) Somerville v. Dickerman, 127 Mass. 272. consent of the parties.1 His appointment will be good, though made before the arbitrators enter on the business referred to them; 2 and they may well join with him in making the award.3 (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.4 § 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.5 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. (b) 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, 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. 8 Soulsby v. Hodgson, 3 Burr. 1474; s. c. 1 W. Bl. 463; Beck v. Sargent, 4 Taunt. 232. Matson v. Tower, Ry. & M. 17; Norton v. Savage, 1 Fairf. 456. 5 Ante, vol. i, §§ 569-581. 6 Towne v. Jaquith, 6 Mass. 46; Baltimore Turnp. Case, 4 Binn. 481; Crofoot v. Allen, 2 Wend. 494. 7 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 arbitrators, appointed and duly authorized by parties, select to decide the matter in controversy, concerning which the arbitrators are unable to agree. His province is to determine the issue submitted to the arbitrators on which they have failed to agree, and to make an award thereon, which is his sole award. Neither of the original arbitrators is required to join in the award, in order to make it valid and binding on the parties. In the absence of any agreement or assent by the parties to the controversy, dispensing with a full hearing by the umpire, it is his duty to hear the whole case, and to make a distinct and independent award thereon, as the result of his judgment. He stands, in fact, in the same situation as a sole (c) Maynard v. Frederick, 7 Cush. (Mass.) 247. In Bulson v. Lohnes, 29 N. Y. 291, where the submission was to three arbitrators, with a provision that the award should be in writing, signed by the three, "or any two of them," and ready for delivery by a certain day fixed, Johnson, J., says: "There can be no doubt that, at common law, before the Revised Statutes, under such a submission, two arbitrators 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 If § 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; and an award is published whenever the arbitrator gives notice that it may be held on payment of his charges. 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; (b) 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.6 § 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; Smith 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 Ill. 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 third had notice and refused to attend and take part in the proceedings; and that an award made by the two who heard the inatters submitted, under such circumstances, was a valid and binding award. This was settled in England, at an early day, and upon full deliberation. (Goodman v. Sayres, 2 Jac. & Walk. 261; Delling v. Matchett, Willis, 215; s. c. Barnes, 57; Sallows v. Girling, Cro. Jac. 278; Watson on Arbitration, 115; Kyd on Awards, 106, 107; Green v. Miller, 6 Johns. 39; Crofoot v. Allen, 2 Wend. 495.) It was held that, by the latter clause of the submission, the entire authority was disjoined, so as to make it a submission to the lesser number to hear, as well as to determine.' (a) Tallman v. Tallman, 5 Cush. (Mass.) 325; Clement v. Comstock, 2 Mich. 359. (b) Gidley v. Gidley, 65 N. Y. 169. |