The time for making the award may be enlarged, if there be a clause to that effect in the agreement of submission, or if all the parties consent to it, but not otherwise. There are no means of com pelling the attendance of witnesses, nor has the arbitrator the power of adminis tering an oath; but the witnesses and —4f they have agreed to be examined— the parties are sworn either before a judge, or, in the country, before a com missioner. They may, however, be ex amined without having being sworn, if no objection is made to it at the time.
The courts cannot enforce performance of the award by attachment; the only remedy is an action on the award itself, or rather, on the agreement of submission. The defendant may insist on any objection apparent on the award itself, but where there is any other ground for setting it aside, his only remedy is by a bill in equity.
Thus where the reference is by agree ment, many inconveniences occur, parti cularly from the deficiency of the remedies: but the statute 9 & 10 Will. III. c. 15, enables parties to put such references on the same footing as those which are made where a cause is depend ing. The statute enacts that all mer chants and others, who desire to end any controversy, suit, or quarrel (for which there is no other remedy but by personal action or suit in equity), may agree that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king's courts of record, and may insert sach agreement in their submission, or promise, or condition of the arbitration bond; which agreement being proved on oath by one of the witnesses thereto, the court shall make a rule that sach submis sion and award shall be conclusive ; and after such rule made, the parties disobey ing the award shall be liable to be punished as for a contempt of the court; unless such award shall be set aside for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court, within one term after the award is made. The provisions of the new statute 3 & 4 Will. IV. c. 42, apply as well to arbitrations made in pursuance of such agreements of submission, as to those made by order of court ; and the law is the same in both cases, except in some few points of practice.
Previously to the 3 & 4 Will. IV. c. 42, the authority of the arbitrator was revocable by either party at any time be fore the award was made; but by that statute it is declared that the authority of an arbitrator cannot be revoked by any of the parties, without the leave of the court or a judge : but it is still determined by the death of any of the parties, unless a clause to obviate this is inserted in the submission ; and if one of the parties is a single woman, her marriage will have the same effect.
The settlement of disputes by arbitra tion was usual among the Athenians. Aristotle, in giving an instance of a me taphor that is appropriate without being obvious, quotes a passage from Archytas, in which he compares an arbitrator to an altar, as being a refuge for the injured. He also (Rhetor. i. 13) contrasts arbitra tion with legal proceedings, and adds that the arbitrator regards equity, but the dis cast ( judge in the courts) regards the law (Aristotle, Rhetor. iii. 11.) There were at Athens two modes of proceeding which passed by the name of arbitration —the Greek word for which is dicta (alarm). In one of these the arbitrators (31cornrcd) appear to have constituted what in modern jurisprudence would be called a Court of Reconcilement. A certain number of persons, of a specified age, were chosen by each tribe, and pro bably for one year only, as official referees, and from among these the arbitrators to decide upon each particular case were afterwards also chosen (Petit, Leges p. 345; Heraldus, Animadversions, p. 370), and were then bound to act, under the pain of infamy. They sat in public, and their judgments were sub scribed by the proper authorities, though it does not appear who those authorities were. (Petit, p. 346.) An appeal lay from their decision to the ordinary courts ; and sometimes the arbitrator re ferred the cause to their judgment at once, without pronouncing any sentence of his own. (Heraldus, Animadversiones, p. 372). The jurisdiction of the arbi trators was confined to Athenian citizens, and they took no cognizance of suits in which the sum in dispute was less than ten drachmae, such smaller actions being disposed of in a summary manner, by a special tribunal. The litigant parties paid the expenses of the arbitration. (Boeekh, Public (Econ. of Athens, i. 316, English Trans.) When their year of office expired, the arbitrators were liable to be called to account for their conduct, and if found guilty of corruption or misconduct, were punished with infamy (erri,ula).