Venice, Leghorn, Genoa, Pisa, Hamburgh, and many other maritime cities, have their underwriters, and pretty considerable insurances are sometimes made there; but those I have before mentioned are the principal places where large sums are underwrote for, with the greatest security.

Chanc.

Rep. 279.

OF ARBITRATORS, ARBITRAMENTS, ARBITRATION BONDS, AND

AWARDS.

An arbitrator is an extraordinary private judge, between party and party, chosen by their mutual consent, to determine controversies between them.

And he is so called either from arbitrium, free will, as some derive it; or because he has an arbitrary power, as is supposed by others; for if arbitrators observe the submission, and keep within due bounds, their sentences are definitive, from which there lies no appeal.

The power of arbitrators is to be regulated by the contracts between the parties, as to what concerns the differences which they are to determine, and whatever they decree beyond that is of no effect.

The award of arbitrators is definitive, and, being chosen by the parties, they are not tied to such formalities of law as judges in other cases are, and yet they have as great power as other judges to determine the matters in variance; but their determination must be certain, and it is to be according to the express condition of the bond, by which the parties submit themselves to their judgment.

After a definitive sentence is given, the functions of arbitrators cease, and they have not power to retract or alter it.

No matters wherein the public is concerned, or besides those of a private nature, which regard property between person and person, can be submitted to the decision of arbitrators. The differences arising between merchants, relating to their commerce, and between parties, in relation to their partnerships, and also accounts of guardianships, and other administrations, are proper subjects for arbitration. Therefore all articles of partnership should contain a clause, by which the partners bind themselves to submit to arbitrators in the disputes that may arise between them. And if the same was done in the contract, and policies of assurance, it might prevent many suits at law.

It has been a custom to choose two, one by each of the contending parties, with a liberty for them to choose an umpire in case of disagreement; but as this method has on many occasions exposed the arbitrators to some disgusts, from those whose differences they were labouring to reconcile, it has been a practice for some time past to nominate three in the bond, by which means their different opinions remain secret, and conse quently unknown to the concerned, who are too apt ungenerously to reflect on a determination, which will naturally differ from the opinion at least of one of the parties, and excite in an uncandid manner a censure, where at least their thanks are due.

The Chancery will not give relief against the award of the arbitrators, except it be 1 Vern. 24. for corruption, &c. and where their award is not strictly binding by the rules of law, the Court of Equity can decree a performance.

that

Where submission to an award is made a rule of court, and it is part of the rule es shall file no bill in equity, it is in the discretion of the court of law ill enforce that part of the rule by attachment or not. 2 Ves. Jun. 451.

6. 52.

When the arbitrators make an award upon one day, they cannot make another be- 26 Hen. tween the parties on any other day; nor can they do it part at one time and part at 39 Hen. another, although the times are within the submission.

6. 12.

Though the arbitrators may agree upon a thing one day, and on another thing at 47 Edw.3. another time, and at last make an award of the whole.

21.

Entr. Eng.

Arbitrators are to award what is equal between the parties, and not on one side only, 2 Mod. and the performance of it must be lawful and possible; and the award must be final. 262. If the arbitrators make an award of money to be paid to a stranger, &c. unless the Inst. 201. parties have benefit by it, it will be void.

1 Rol. Abr.

242.

190.

1 Salk. 71.

If an award be made between A. of the one part, and B. of the other part, whereby 2 Saund. it is awarded that A. shall pay 10l. to B. and 51. to a stranger, and that B. shall give A. 2 Lill. 169. a general release, the award as to the 51. is void, but good for the residue. See 2 Saund. 293; and see the case of Addison v. Gray, 2 Wils. 293. And a party is not to be made a judge in his own cause by award. For it is a general rule in equity, that when it appears that any one of the arbitrators Kyd on was any way interested in the matters in controversy referred to them, the award is to be 42. set aside.

Awards,

Where a thing is to be done on payment of money, a tender of the money is as much Mod. Cas. as an actual payment.

33.

Action of debt may be brought for money adjudged to be paid by arbitrators, de- Brownl. claring on the award; and also action of debt upon the bond, for not performing the 55.

award.

When there is but one arbitrator, which happens where the matter is referred to 8 Rep. 98. two, or they cannot agree, but leave it to be determined by a third person, it is called an umpirage.

170.

But the arbitrators are to refuse, and declare they will make no award before the Lil. Abr. umpire shall proceed; though an umpire's award shall be good, where the arbitrators make a void award, which is no award.

See

1 Saund.

the cases

It is said an umpirage cannot be made till the arbitrators' time is out, and if any other 129, and power be given to the umpire, it is not good; for two persons cannot have a several there cited. jurisdiction at one time.

1 Mod. Rep. 15,

1 Saund.

But this seems to be contradicted by the practice afore-mentioned, of nominating and see three arbitrators in the bond, except the distinction consists in sounds only, as neither of the three is termed an umpire; and where arbitrators have the power of electing an umpire they may choose him and call in his assistance as soon as they begin to take the subject into consideration; and this is convenient practice, as it secures a decision upon a single investigation of the controversy. Roe on demise of Wood v. Doe: 2 T. R. 644.

An arbitration is generally an effect of moderation in the contending parties, who think it more safe to refer the matter in dispute to the determination of friends, than to venture a trial at law, more especially as the one is costly, and the other transacted gratis; and although there is no particular obligation to oblige parties in England to refer their differences to arbitrators, as is the custom in France, yet our statutes recommend these references to the subjects, and more particularly to merchants and traders, as an useful expedient to end their disputes with the greater ease and expedition.

The civilians make a difference between arbiter and arbitrator; an arbiter being tied to proceed and judge according to law, mingled with equity; but an arbitrator is wholly Cowel. at his own discretion, without solemnity of process, or course of judgment, to hear and determine the controversy referred to him, so as it be juxtà arbitrium boni viri.

Arbitrators should give their award without entering into particulars, or assigning their reasons for it, as this might expose them to a chancery suit from a dissatisfied

2 Saund. 190.

S Rep. 98.

Hard. 44.

Jenk.

Cent. 129.

Dany. Abr. 513.

1 Roll.

party, and it should be in writing, and within the time limited by the arbitration bonds.

There should be appointed by the award some reciprocal act, to be done by each party to the other, which the law requireth to be quid pro quo, although it be never so small, and reciprocal acquittances should be directed, either general or particular ones, according as the nature of the decision shall require.

The arbitrators are not to award any thing, whereby any matter already determined by a decree in chancery, or a judgment at common law, or any sentence judicially given in the cause, be infringed or meddled with; for sentences of judicial courts of record are always of a higher nature than arbitrators' awards, and justly challenge both obedience and respect; though civilians themselves do frequently call merchants in to their assistance, when the matter in dispute is relative to trade, and sometimes recommend the decision of a mercantile point to a trader, after they have long and curiously debated it, without bringing it to a conclusion.

Arbitrament (in Latin arbitrium) is the sentence or determination, pronounced by arbitrators, and published when they have heard all parties, and this is either general, of actions, demands, quarrels, &c. or special, of some certain matters in controversy: it may be also absolute or conditional.

To every arbitrament, five things are incident, viz. First, matter of controversy. Secondly, submission. Thirdly, parties to the submission. Fourthly, arbitrators. And, fifthly, giving up the arbitrament.

Arbitrators cannot refer arbitraments to others, if the submission be not so; but an arbitrament that one shall release to another, by advice of a certain person, is good, because it is a reference only for the execution of it.

Submissions to arbitraments are usually by bond, and the parties who bind them9 Rep. 78. selves, are obliged to take notice of the award, at their peril; but things relating to a freeAbr. 244, hold, debts due on bond, or on certain contract, criminal offences, &c. are not arbitrable. For ending suits by arbitrament, the following act is the only one made in any late reign, viz.

342.

9 and 10 Will. 3.

1.

After the 11th of May, 1698, all merchants and traders, and others desiring to end c. 15, sect, any controversy, suit, or quarrel, for which there is no other remedy, but by a personal action or suit in equity, by arbitrament, may agree, that their submission of the suit to the award, or umpirage, of any person or persons, shall be made a rule of any of his Majesty's Courts of Record, which the parties shall choose, and may insert such their agreement in their submission, or the condition of the bond of promise; and upon producing an affidavit of such agreement, and upon reading and filing such affidavit in the court so chosen, the same may be entered of record in such court, and a rule of court shall be thereupon made that the parties shall submit to, and finally be concluded by such arbitration or umpirage: and in case of disobedience thereto, the party neglecting, or refusing, shall be subject to all the penalties of contemning a rule of court, and process shall issue accordingly, which shall not be stopped or delayed by any order, &c. of any other court, either of law or equity, unless it appear on oath, that the arbitrators or umpire misbehaved themselves, and that such award was corruptly or unduly procured.

Any arbitration or umpirage, procured by corruption or undue means, shall be void, and set aside by any court of law or equity, so as such corruption or undue practice be complained of, in the court where the rule is made for such arbitration, before the last day of the next term, after such arbitration made and published to the parties; but this does not extend to an award made in pursuance of an order of Nisi Prius. Stra. 301. In consequence of this statute, it is now become a considerable part of the business of the superior courts, to set aside such awards as are partially or illegally made; or to

enforce their execution when legal, by the same process of contempt, as is awarded for disobedience to such rules and orders as are issued by the courts themselves.

Submissions to arbitration were entered into by a rule of court at the common law when a cause was depending, and the above statute was intended to give the same efficacy to awards where no suit or action was instituted. 2 Burr, 701. A verbal agreement to abide by an award cannot be made a rule of court. 7 T. R. 1. Nor can a submission to an award be made a rule of court where an indictment has been preferred for the subject referred. 8 T. R. 520. An agreement to enlarge the time of making an award must contain a consent to make it a rule of court, otherwise no attachment will be granted for non-performance. 8 T. R. 57.

An Arbitration Bond.

Know all men by these presents, that I, A. B. of the parish, &c. in the county, &c. merchant, am held and firmly obliged to C. D. of, &c. in the county aforesaid, Esq. in pounds of good and lawful money of Great Britain, to be paid to the said C. D. or his certain attorney, his executors, administrators, or assigns, to which payment, well and truly to be made, I oblige myself, my heirs, executors, and administrators, firmly by these presents, sealed with my seal, dated at on the day of

in the twenty-fourth year of the reign of our Sovereign Lord King George II. and in the year of our Lord God one thousand seven hundred and fifty-one.

The condition of this obligation is such, that if the above bound A. B. his heirs, executors, and administrators, for his and their parts, and behalfs, do in all things well and truly stand to, obey, abide by, perform, fulfil, and keep the award, order, arbitrament, final end, and determination of E. F. and G. H. arbitrators indifferently named, elected, and chosen, as well on the part and behalf of the above bounden A. B. as of the above-named C. D. to arbitrate, award, order, judge, and determine, of and concerning all, and all manner of action and actions, cause and causes of actions, suits, bills, bonds, specialties, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, at any time or times, heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by or between the said parties, so as the said award be made, and given up in writing, under their hands and seals, ready to be delivered to the said parties on or before the next ensuing the date above-mentioned: but if the said arbitrators do not make such their award of, and concerning the premises by the time aforesaid, that then if the said A. B. his heirs, executors, and administrators, for his and their part and behalf, do in all things well and truly stand to, obey, abide by, perform, fulfil, and keep the award, order, arbitrament, umpirage, final end, and determination of J. K. umpire, indifferently chosen between the said parties, of, and concerning the premises, so as the said umpirage do make his award or umpire of and concerning the premises, and deliver the same in writing under his hand and seal, to the said parties, on or before the

next ensuing the date above-said, then this obligation to be void, or other

wise to be, and remain in full force and virtue. Signed, sealed, and delivered,

in the presence of

L. M.

N. O.

A. B..

Note, if there is no umpire, the latter part must be omitted, viz. from, "but if the said arbitrators," &c.

Though I have before observed, it is now customary to choose three arbitra tors, and have them nominated in the bonds.

Spelm.

1 Dany.

The aforesaid bond must be mutual between the parties, and the following clause may be added at the end of the condition, as the agreement mentioned in the preceding act of Parliament, viz.

And the above-mentioned A. B. doth agree and desire, that this his submission to the award above-mentioned, be made a rule of his Majesty's Court of King's Bench, or any other Court of Record, pursuant to the act of Parliament for this purpose provided, and the like for the other party submitted to such award.

AWARD is the judgment and arbitration of one or more persons, at the request of two parties who are at variance, for ending the matter in dispute, without public authority; and may be called an award, because it is imposed on both parties to be observed by them dictum, quod ad custodiendum, seu observandum, partibus imponitur.

An award may be by word or in writing, but it is usually given in the latter, and Abr. 515. must be exactly according to the submission. If an award be according to the submission by bond, though it is void in law, if it be not observed, the obligation will be forfeited.

Cro. Eliz. 861.

10 Rep. 31.

2 Saund.

293.

Danv. 548.

Dyer, 243.

Where arbitrators award a thing against law, it is void; if more is awarded than submitted, the award will be void; but when an award seems to extend to more than in the submission, the words de et super pramissis, restrain it to the thing submitted.

An award may be void in some part, and good in another part, if it makes an end of all the differences submitted; and if an award be good in part, and void in part, the good shall be performed.

An award without a deed of submission will be good, in bar of a trespass.

But the delivery of the award in writing, under hand and seal, &c. must be pleaded 2 Mod. 77, and be exactly replied to by the plaintiff, in action of debt on an award, or it will be ill

78. 269.

10 Rep.
131.
Dyer, 270.

Plowd. 189.

7 H. 4. 31.

Dyer, 183.

Godb.

on demurrer.

The submission to an award may be by bond, covenant, or by an assumpsit or promise; or without all this, by a bare agreement, to refer the matter to such a person or persons.

A husband may submit to an award, for himself and his wife, for her goods and chattels, to bind her; but an infant may not make any submission to an award, or any other for him, for it will be void.

If several persons do a wrong to a man, and one of these, and he to whom the wrong is done, submit to an award; the other persons, who were no parties to the submission, may take advantage of it, to extinguish the wrong.

And where the award of recompence for a wrong done is performed, that wrong is altogether determined; also the award of a personal chattel doth alter the property of it, and give it to the party to whom awarded, that he may have detinue for it.

Dyer, 216. A submission is of all actions and demands, &c. though there be but one cause or 2010: 146 matter between them; an award may be made for this: and where two things are subSee 2T. R. mitted, and the award but one, it is good, if the arbitrators have no further notice of 4 T. R.146. the other; though if it be of three things, or some particulars with a general clause of all other matters, in that case they must make the award for the things particularly named, without any other notice given.

644.

8 Rep. 79.

If the submission be by divers persons, and the arbitrators award between some of Hob. 49. them only, this is good, but if a submission is of certain things in special, with a proviso in the condition, that the award be made of the premises, &c. by such a day, there the award must be made of all, or it will be void.

Plowd. 306.

An award of all actions real, when the submission is of actions personal, is not

10 Rep. good.

132.

Dyer, 216.

Yet if the submission be of things personal, and the award is, that one of the parties shall do an act real, in satisfaction of a personal injury, &c. or a submission be of one