it is incapable of being enforced. not in general necessary to set it aside, for | tering an oath; but the witnesses and -if they have agreed to be examined— the parties are sworn either before a judge, or, in the country, before a commissioner. They may, however, be examined without having being sworn, if no objection is made to it at the time. When the award has been made and delivered, if one of the parties refuses to comply with it, the other may bring_an action against him on the award. But the most prompt and efficient remedy is to apply to the court for an attachment, grounded on the contempt of court which he has been guilty of by disobeying the order of reference. In opposing this application, the other party may insist on any objection apparent on the award itself; but if there were any other objections affecting its validity, and he has neglected to apply to the court to set it aside within the time fixed by them for that purpose, it is too late for him to avail himself of them. When, in the original action, a verdict has been given for the plaintiff subject to a reference, if the defendant does not abide by and perform the award, the plaintiff may, by leave of the court, enter a judgment and sue out execution for the whole damages mentioned in the verdict. 2. Where no action has been commenced, the parties may refer their differences to arbitration by mutual agreement. Every person capable of making a disposition of his property may be party to such an agreement: no peculiar form is necessary for its validity. Whether the submission be verbal or in writing, it is in the power of either of the parties to revoke it, and thus put an end to the authority of the arbitrator at any time before the award is made. In order to prevent this, it is usual for the parties to make it a part of their agreement, that they will abide by and perform the award; and if after this either of them should, without sufficient reason, revoke his submission, or otherwise prevent the arbitrator from proceeding with the arbitration, he will be liable to an action for the breach of his agreement. 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 compelling the attendance of witnesses, nor has the arbitrator the power of adminis 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 agreement, many inconveniences occur, particularly 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 depending. The statute enacts that all merchants 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 such 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 such submission and award shall be conclusive; and after such rule made, the parties disobeying 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 before 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 arbitration was usual among the Athenians. Aristotle, in giving an instance of a metaphor 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 arbitration with legal proceedings, and adds that the arbitrator regards equity, but the discast (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 diæta (Siara). In one of these the arbitrators (SiaiTnTal) 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 probably 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 Atticæ, p. 345; Heraldus, Animadversiones, p. 370), and were then bound to act, under the pain of infamy. They sat in public, and their judgments were subscribed 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 referred the cause to their judgment at once, without pronouncing any sentence of his own. (Heraldus, Animadversiones, p. 372). The jurisdiction of the arbitrators was confined to Athenian citizens, and they took no cognizance of suits in which the sum in dispute was less than ten drachmæ, such smaller actions being disposed of in a summary manner, by a special tribunal. The litigant parties paid the expenses of the arbitration. (Boeckh, 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 (druía). In the other mode of proceeding, which was strictly in accordance with the definition which we have given of arbitration, the parties were at liberty to refer their differences to whomsoever they chose. The submission was generally made by a written agreement, which frequently contained an engagement by third persons to become sureties for its performance. (Demosthenes, Speech against Apaturius, chap. 4.) There lay no appeal from the award of the arbitrator to any other tribunal, unless probably such a right of appeal was reserved in the agreement. (See the law quoted by Demosthenes against Meidas, chap. 26.) The Roman law upon this subject is much better understood, and is of infinitely greater importance. Its influence has extended over the whole of Europe, and even in our own country it is evident that references made by virtue of a mutual agreement apparently the first species of arbitration known in our law -are mainly founded upon the doctrines contained in the Digest, iv. tit. 8. The only mode of referring a matter to arbitration in the Roman law was by an agreement called compromissum, which contained the names of the arbitrators (hence called arbitri compromissarii), the matters intended to be referred, and an undertaking by both parties to abide by the award, or in default thereof to pay to the other a certain sum of money as a penalty. The rule which forbids matters of public interest to be submitted to the judgment of a private referee, was not confined in its operation to criminal prosecutions and penal actions, but extended to preclude arbitrators as well from entertaining any question affecting the civil condition (status) of any individual,—his freedom, for instance,-as from deciding on the validity of any contract which it was attempted to set aside on the ground of its having been obtained by fraud or force. The persons named as arbitrators were not bound to undertake the office, but having once done so, they might, by an application to the prætor, be compelled to go through with it. Their authority was terminated by the death of either of the parties, unless his heirs were included in the submission; by the expiration of the time limited for the decision; by either party having broken the agreement, and so incurred the penalty; or by his becoming insolvent, and his property, in consequence of a cessio bonorum, being vested in his creditors. Their authority also ceased by what we should call an implied revocation, if the subject matter of the reference perished, or if the parties settled the dispute in some other way, referred it to other arbitrators, or proceeded with an action respecting it. Besides the cases in which his authority was thus at an end, an arbitrator could not be compelled to proceed with the reference if he could allege any sufficient excuse, as for instance, that the submission was void, that there had arisen a deadly enmity between him and one of the parties, or that he had been prevented by ill-health, or by an appointment to some public office. The extent of the arbitrator's authority depended upon the terms of the submission, which might be either special or general. The submission usually appointed a certain day for the making of the award, but power was generally given to the arbitrators to enlarge the time if necessary, and they could not give their award on an earlier day without the consent of the parties. On the day originally appointed, or on that subsequently fixed by the arbitrators, they formally pronounced their award, and (unless it had been agreed otherwise) the parties were required to be present, and if one of them failed to appear, the award was not binding, but the party who had thus prevented the arbitration being completed incurred the penalty specified in the submission. If there were several arbitrators, all were bound to attend, and the opinion of the majority prevailed; and if they were equally divided, it is said that they might of their own authority appoint an umpire, and in case of their refusing, the prætor had the power of compelling them to do so. When their award was pronounced, their authority expired, and they could neither retract nor alter their decision. The award when made had not the authority of the sentence of a court of justice, nor was there any direct method of enforcing the performance of it; but as the parties had bound themselves to abide by the arbitrator's decision, if either of them refused to perform it, or in any other way committed a breach of his engagement, he was liable to an action; and however unsatisfactory the award might appear, there was no appeal to any other court. If, indeed, the arbitrators had been guilty of corruption, fraud, or misconduct, or if they had not adhered to their authority, their award was not binding: there was, however, no direct method of setting it aside; but if an action was brought to enforce the award, such misconduct might be insisted on as an answer to it. (Heineccius, Elem. Jur. Civ. pars i. § 531-543; Voetius, Commentarius ad Pandect. vol. i. pp. 290-300.) The Roman law was, with some slight modifications, adopted in France (Domat, Civil Law, part i. book i. tit. 14; and Public Law, book ii. tit. 7; Pothier, Traité de Procedure Civile, part ii. chap. iv. art. 2), and notwithstanding the changes which have been introduced from time to time, it still forms the groundwork of the system. There are at present three kinds of arbitration; the first is voluntary arbitration, which is founded, as in the Roman law, upon an agreement of the parties. The mode of proceeding in this case is treated of at considerable length, and with minute attention to details, in the Code de Procédure Civile, art. 1003-1028. The ordinary courts exercise a much greater control over the proceedings in references than they do in England, but they have never had the power which the magistrates had at Rome-of compelling a person who had once undertaken the office of arbitrator to proceed with it; nevertheless, if he fail to do so, without a sufficient excuse, he is liable to an action for the damages occasioned by his neglect of duty. In order to understand clearly the peculiarities of the French system, it will be necessary to bear in mind that the proceedings before the brought under the consideration of a court in any of these ways, any final judgment which the court may have pronounced may be brought before the Court of Cassation, and there quashed if erroneous in point of law. The second kind, which is called "com arbitrators are much more nearly on the same footing with the regular administration of justice than is the case with us, and that many of the details are merely adopted from the practice of the ordinary courts: for instance, there is a system of local judicature established in France, and as the judge is resident in the neigh-pulsory arbitration," is where the parties bourhood of the suitors, it has been found necessary, in order to guard against partiality or the suspicion of partiality, to allow either party to refuse or challenge a judge, as in England they would challenge a juryman; and in the same manner an arbitrator may be challenged, but this can only be in respect of some objection which has arisen since his appointment, for the very act of appointing him is an implied waiver of any objections which might have existed up to that time; but if there is no ground for challenge, the arbitrator's authority cannot be revoked without the consent of both parties. are by law required to submit to a reference, and are precluded from having recourse to any other mode of litigation. The ancient laws of France introduced this species of arbitration very extensively for the settlement of disputes respecting either mercantile transactions or family arrangements; but by the law now in force, it is admitted in one case only, that of differences between partners. Over such differences the ordinary courts have no jurisdiction in the first instance, even with the consent of the parties; but the commercial courts control the proceedings. Thus the arbitrators may An arbitrator's decision or award is either be appointed by the deed of partconsidered as a judgment, and all the nership or afterwards nominated by the formalities required for the validity of a partners; but if, when a dispute has judgment must therefore be observed; arisen, one of the partners refuses to but execution of it cannot be enforced nominate an arbitrator or nominates an until it has received the proper sanction: improper person, the commercial court, this sanction is conferred by a warrant upon application made by the other partof execution granted by the president ner, will appoint one for him. The of the tribunal within the jurisdiction of authority of the person so appointed will which the cause of the action arose: the be superseded, if before he enters upon granting of this warrant is called the his functions an arbitrator is duly nomihomologation of the award. If the arbi-nated by the partner in delay: and when trator has not strictly pursued his authority, the warrant of execution may be superseded, and the award declared null by an application to the tribunal from which the warrant issued. Besides this, the same modes of obtaining relief may be resorted to in the case of an award, as in that of any other judgment. If any misconduct or irregularity has occurred, the award may be set aside by what is I called a requête civile; and even where nothing can be alleged against the formal correctness of the proceedings, if one of the parties be dissatisfied with the judgment, he is at liberty (unless the right has been expressly renounced) to appeal to a superior court: when this happens, the whole case is re-opened before the tribunal of appeal, and the merits investigated anew; and when an award is the firm consists of several partners, upon an application being made by any one of them, the court, after taking into consideration how far their respective interests are identical and how far they are conflicting, will regulate accordingly the number of arbitrators to be appointed by each. The sentence of the arbitrators, howsoever appointed, is decided by the majority of votes. The authority of the arbitrators in this case partakes more of the judicial character than it does in voluntary arbitration; they are considered as substituted for the ordinary commercial tribunal; their sentence is registered among the records of the court; and they stand upon the same footing with the court in the power of sentencing the parties to imprisonment; and unless the right has been renounced by the parties, there is an appeal from their decision. (Code de Commerce, art. 51-64.) Besides the compulsory arbitration in matters of partnership, the parties who enter into any engagement are at liberty to stipulate that all differences arising between them shall be submitted to arbitration. This stipulation is compulsory, and the court will, if requisite, appoint an arbitrator ex officio for the party who should refuse to do so; but it is not exclusive, so as to take away the jurisdiction of the ordinary tribunals; it may be rescinded by the consent of the parties, or waived by their acts. The third kind of arbitration is distinguished by the appellation of the persons to whom the reference is made; they are not called, as in the other cases, arbitres, but aimables compositeurs, or in the old law, arbitrateurs. The peculiar characteristics of this amicable composition are, that the referees are not, as in other cases, bound to adhere rigorously to the rules of law, but are authorized to decide according to the real merits of the case; that their decision is final, and without appeal to any other tribunal. In case of irregularity or misconduct, the award may be set aside by the judgment of a court, but this judgment cannot be further questioned in the Court of Cessation. This modification of the general law may be introduced into all arbitrations, whether voluntary or compulsory. (Pardessus, Cours de Droit Commercial, § 1386-1419.) In Denmark and its dependencies, Courts of Arbitration or Conciliation were established about the year 1795, and are said to have been attended with extremely beneficial effects. In Copenhagen the court is composed of one of the judges of the higher courts of judicature, one of the magistrates of the city, and one of the representatives of the commonalty. In other towns, the chief magistrate proposes five or six of the more respectable citizens for arbitrators, of whom the commonalty of the town elect two. In the country, the bailiffs or sheriffs are the arbitrators, and generally act as such personally; but in extensive districts they have authority to appoint deputies. All matters of civil litigation Courts of mutual agreement are con- N |