Whereas complaint hath been duly made unto us, by A. M. of in the district aforesaid, carpenter, that A. P., now being an apprentice to him the said A. M. hath been guilty of several misdemeanors, miscarriages and ill behavior, or is refractory and disobedient (as the case may be) to him the said A. M. his master; these are to command you to bring the said apprentice before us at on the

of

day of

, at the hour in the morning of the said day, to answer to the said complaint, and to be dealt with according to law; and you are to give notice to the said master, that he appear before time and place, to make good the said complaint. as you will answer the contrary at your peril. hands and seals this

day of

in

us at the same Hereof fail not, Given under our the year

Married

women, &c. may not.

ARBITRATION.

Arbitration is where the parties submit their matter of controversy to the judgement of two or more arbitrators, and if they do not agree, it is usual to add that another person be called in as umpire, to whose sole judgment it is then referred.

1st. WHO MAY SUBMIT TO ARBITRATION.

2nd. WHAT MAY BE SUBmitted.

3d. SEVERAL VARIOUS MODES OF SUBMISSION.

4th. REVOCATION.

5th. POWER AND DUTIES OF THE ARBITRAtor.
6th. UMPIRE.

7th. THE AWARD.

8th. FORMS.

1st. Who may submit to Arbitration.

Persons who cannot contract, cannot submit to arbitration. Therefore married women, and persons compelled by threats and imprisonment, cannot submit; Burns' Justice, 136. The husband may submit the chattels he has in right of his wife; for he may dispose of them-he may also submit to arbitration chattels, which the wife has, as executrix or administratrix.-Ibid. If an infant submit to arbitration, he may execute or avoid it at his election.-Ibid. An executor or adminis. trator may submit matters to arbitration, and the award will be binding on the estates they represent.-Swicard vs. Adm's of Swicard. 2 M. Con., 218.

2nd. What may be submitted.

certain and

All matters of controversy, either of fact or of right, to things and actions personal and uncertain, may be submitted to arbitration. Mat- Matters ters certain may also be submitted in connection with matters uncer- uncertain. tain. Causes, criminal, are not determinable by arbitration, because Criminal the perpetrator of crimes should be made known and punished for the causes not. common good; and the State, in such cases, is a party for whom the other parties cannot undertake. But if the injured party proceeds, by way of action, as he may in assaults and batteries, libels and the like, the damages may be submitted to arbitration. Matters relating Except personal to the contract or dissolution of marriage, cannot be submitted to damage. arbitration. But the damages a person may have sustained by a promise of marriage, or any thing relating to a marriage portion, may be submitted; Burns' Justice, 137-38. Whether a dispute Realty. concerning a freehold, may be submitted to arbitration, by parol, is undetermined, but it may be submitted by deed. Leatherwood vs. Woodruff, 2 Brev. R., 380.

3d. Various modes of submission.

A submission by words is good, and the party in whose favor the By words. award is made, has a remedy to enforce the performance of it. Yet it is not expedient that any submission should be by parol, because either party may, by words, revoke it at any time before the award is made.

Submission may also be made by covenant, but this method is not By covenant often practised.

Court.

Submission, by rule of Court, is made in pursuance of the statute By rule of 9 and 10 Wil. c. 15, which is as follows: "It shall be lawful for all merchants and traders, and others, desiring to end any controversy, suit or quarrel (for which there is no other remedy but by personal action, or suit in equity) by arbitration, to agree that their submission to the award, or umpirage, be made a rule of any of his Majesty's courts of record which the parties shall choose, and to insert such agreement in their submission, or the condition of the bond, or promise, whereby they submit themselves; which agreement being so made, and inserted in their submission, or promise, or condition of their respective bonds, shall or may, on producing an affidavit thereof, made by the witnesses thereunto, or any of them, in the Court. of which the same is agreed to be made a rule, and reading and filing the said affidavit in Court, be entered of record in such Court; and a rule shall thereupon be made by the said Court, that the parties shall

By Bond.

submit to, and finally be concluded by such arbitration, or umpirage: and in case of disobedience to such arbitration or umpirage, the party neglecting or refusing to perform the same, or any part thereof, shall be subject to all the penalties of contemning a rule of Court; and the Court on motion shall issue process accordingly; which process shall not be stopped or delayed in its execution, by any order of any other Court of Law or Equity, unless it shall be made appear, on oath, to such Court, that the arbitrators or umpire misbehaved themselves, and that such award was procured by corruption or other undue means.

And this is allowed to be the most expeditious way; and the method is to get a counsel to move in any of the Courts to have it made a rule, which, in such case, is never denied: and then the party is liable to the same penalties that he would be for disobeying any other rule of Court. Compl. Abr., 6, 47.

Although this statute of William is not made of force in this State, yet the proceedings of the Courts in cases of awards, have hitherto been conducted agreeable to this statute, until January term, 1787, when the following rule was made by the Court.

Upon the return of an award, or umpirage, a one day rule shall be served upon the party, or his attorney, against whom the award or umpirage shall be made, to show cause why the award or umpirage should not be confirmed; and if the award or umpirage should be confirmed by the Court, then judgement shall be thereon entered, and execution issued against the body or goods of the party, in the same manner as if a judgement had been obtained by verdict of a jury; by which the proceedings pointed out by the Act of Parliament, upon the return of the award, is hereby altered; as, instead of an attachment, the process is by judgement and execution against the body or goods of the party. 40th Rule.

The agreement to a reference must be expressed with great caution and accuracy; for if it is agreed to refer all matters in difference between the parties in the cause, the arbitrators are not confined to the subject of the cause alone, as they are when it is agreed to refer all matters in difference in the cause between the parties. 2 T. R., 645.

Yet after an award under a reference in the first case, either party may maintain an action for a right or demand subsisting at the time of the reference, but not disputed or referred to the arbitrators. 4 T. R., 146.

The best and most usual mode of submission is by bond, in which case, each party must give the other a bond, both of which must con

tain exactly the same words, only changing the names. And the penalty of the bond should exceed the amount in dispute, or the value of the thing submitted, so as to cover the award and damages for refusal to comply. Burns, J., 140.

4th Revocation.

A submission by words may be revoked at pleasure, and the party revoking forfeits nothing; but it will be necessary for him to give notice of the revocation, though it need not be in writing, and such By notice. notice must be to the arbitrators themselves. Burns, 141.

Arbitrators

A submission by deed may be revoked by deed, and notice of revocation before award made, but the arbitrators are right in afterwards proceeding to award, because the party continuing in submission is entitled to his action for damages on non-performance of the covenant to proceed to stand by the award. So, if bound in a penalty, the penalty is not cases. avoided by the revocation. King vs. Joseph, 5 Taunt, 452.

in some

Under the Rule of Court, there is no provision for a case of revo- Under Rule. cation, but the probabilities are, that in such case, the Court would proceed to judgment on the award, unless for good cause shewn to the contrary.

The death of either party, at any time before the award, determines By death. the power of the arbitrators. 2 Tidd, p. 877.

If a woman submit a matter to arbitration, and marries before By marriage. award made, it will be a revocation, and if another be concerned with her, it will be a revocation as to that person also. Burns' Justice, 141.

5th. Power and Duties of Arbitrators.

As to evidence, arbitrators have no power to administer an oath, Not adminand a person cannot be indicted for perjury on an oath taken before ister oath. them; State vs. McCroskey, 3 Mc. 308. They may examine the May examparties as witnesses, unless this is expressly guarded against by the inte submission; Askew vs. Kennedy, 1 Bail., 46. If they examine the parties, they may also examine a witness, who is interested. Lloyd vs. Archbowle, 2 Taunt, 324.

parties.

Must hear

witnesses.

matters

All the witnesses of a party must be heard, or it will be good ground for setting aside the award. Bedingson vs. Southall, 4 Price, 232. all the As to matters referred, the power of the arbitrator is confined to confined to the matters submitted, and if the submission be by deed or bond, the referred. terms thereof cannot be extended by parol; Sessions vs. Barfield, 2 Bay, 94. But with respect to matters submitted, they may go farther than the Court to do complete justice, and therefore may relieve May relieve against a harsh right. Knox vs. Symonds, 1 Ves., Jun., 367.

in harsh
case.

1

Award
Interest.

Also compound.

One party

absent.

By the parties.

So they may put the law out of the question and award the payment of a conscientious demand, though it be not binding in law. Delor vs. Barnes, 1 Taunt, 48.

An arbitrator may award interest, though on a matter not bearing interest in law. In re Bodger 2 B. & A. 691.

So also, he may allow compound interest on a contract for it, either expressed or to be inferred from the nature of the dealings between the parties. Morgan vs. Master, 2 Ves., Jr.; 15.

An arbitrator may award costs without any express authority for that purpose; Roe & Wood vs. Doe, 2 T. R, 644. If one of the parties will not attend, he may proceed ex parte without giving him notice. Harcourt vs. Ramsbottom, 1 J. and W., 512.

6th. Of the Umpire, his Power and Duties.

An umpire is either chosen by two persons disputing, or by the arbitrators, according to the terms of the submission. Where the umpire is chosen by the parties, it is usual to name him at the same time that the arbitrators are chosen. But when by the terms of the By arbitra. submission the arbitrators have power to choose, it may be done either before they enter upon the matter referred, or at any time before award; Peck vs. Wakely, and Wilson, 2 McCord, 279. The umpire must be by actual choice of arbitrators, and choosing by lot between two persons named, is not good.

tors.

Not by lot.

May decide on report.

Rules of.

The umpire is governed by the same rules of evidence, and has the same power over the subject matter as has been set forth in treating of the power and duties of arbitrators, with this exception, that he may proceed to determine the matter referred, upon the report of the arbitrators, and without re-examining the witnesses, unless he is directed to do so by the terms of the submission, or it is required of him by one of the parties before he makes his award. Sharp vs. Lipsey, 2 Bail., 113.

7th. Of the award, how it may be made, and for what.

The award should be in writing, and its requisites are, that it be, 1st. According to the very terms of the submission, in respect to the persons and things submitted. 2ndly. It ought to be equal and not on one side only, for it must appoint either party to give or do something beneficial or advantageous. 3dly. The performance must be legal and possible. 4thly. There must be a means, by law, to attain to the thing awarded, and this is chiefly meant where the submission is without bond. 5thly. It ought to be certain and final, and make an end of all controversies submitted, or if it is good only in