MISSION; AWARD.
At common law it was either in pais,—that is, by simple agreement•of the parties,—or by the intervention of a court of law or equity. The latter was called arbitration by rule of court. 3 Blackstone, Comm. 16.
Besides arbitration at common law, there exists arbitration, in England as well as the United States, under various statutes, to which reference is made for local peculiarities.
Most of them are founded on the 9 & 10 Will. III.
c. 15, and 3 & 4 Will. IV. eh. 42, 49, by whioh it is allowed to refer a matter in dispute, not than in court, to arbitrators, and agree that the submission be made a rule of court. This agreement, being proved on the oath of one of the witnesses thereto, is enforced as if it had been made at first under a rule of court. 3 Blackstone, Comm. 18 ; Kyd, Aw. 22. Particular reference may be made to the sta tutes of Pennsylvania, in which state the legislation on the subject of arbitration has been extensive and peouliar.
2. Any matter may be determined by ar bitration which the parties may adjust by agreement, or which may be the subject of a suit at law. Crimes, however, and perhaps actions (qui tam) on penal statutes by common informers, cannot he made the subject of ad justment and composition by arbitration.
See SUBMISSION.
Any person who is capable of making a valid and binding•contract with regard to the subject may, in general, he a party to a refer ence or arbitration. Every one is so far, and only so far, bound by the award as he would be by an agreement of the same kind made directly by him. For example, the sub mission of a minor is not void, but voidable. See SunmosioN.
3. At common law it is entirely voluntary, and depends upon the agreement of the parties, to waive the right of trial in court by a In Pennsylvania, however, there exist com pulsory arbitrations. Either party in a civil suit or action, or his attorney, may enter at the prothonotary's office a rule of reference, wherein he shall declare his determination to have arbitrators chosen on a day certain, to be mentioned therein, not exceeding thirty days, for the trial of all matters in variance in the suit between the parties. A copy of this rule is served on the opposite party.
On the day appointed, they meet at the prothonotary's and endeavour to agree upon arbitrators. If they cannot, the prothonotary makes out a list, on which are inscribed the names of a number of citizens, and the par ties alternately strike, each, one of them from the list, beginning with the plaintiff, until only the number agreed upon, or fixed by the prothonotary, are left, who are to be the ar bitrators. A time of meeting is then agreed
upon, or appointed by the prothonotary if the parties cannot agree; at which time the ar bitrators, having been sworn or affirmed justly and equitably to try all matters in variance submitted to them, proceed to hear and decide the case. Their award is filed in the 4fice of the prothonotary, and has the effect of a judg ment, subject, however, to appeal, which may be entered at any time within twenty days from the filing of such award. Act of 16th June, 1836 ; Pamphl. p. 715.
This is somewhat similar to the arbitrations of the Romans. There the prmtur selected, from a list of citizens made for the purpose, one or more per sons, who were authorized to decide all suits sub mitted to them and which had been brought before him. The authority which the praetor gave them conferred on them a publio character, and their judgments were without appeal. Toullier, Drat Civ. Fr. liv. 3, t. 3, c. 4, n. 820.
4. In England, also, by the Common Law Procedure Act [1854], it is provided that if it appear, at any time after the issuing of the writ, to the satisfaction of the court, or judge, upon the application of either party, that the matter in dispute consists wholly, or in part, of matters of mere account, which cannot be conveniently tried in the ordinary way, it shall then be lawful for such court or judge to decide such matter summarily, or to order that such matter, either wholly or in part, be referred to an arbitrator ap pointed by the parties, or to an officer of the court, upon such terms, as to costs, as shall be reasonable ; and the decision or order of such court or judge, or the award or certifi cate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred. 17 & 18 Viet. 0. 125, N 3, 4.
5. The arbitrator so appointed may refer questions of law to the decision of the court, or send issues of fact to a jury. The deci sion of the court in such cases, as well as the finding of the jury, are to be binding upon him. See, generally, ARBITRATOR; Simms