Commentaries on the Laws of England in four Books by Sir William Blackstone, 15th Edition, 1809.

II. ARBITRATION is where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators; who are to decide the controversy: and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator or imparx,) to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justicey. But the right of real property cannot thus pass by a mere awardz: which subtilty in point of form (for it is now reduced to nothing else) had its rise from feudal principles; for, if this had been permitted, the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release of land; and it will be a breach of the arbitration-bond to refuse compliance. For, though originally the submission to arbitration used to be by word, or by deed, yet both of these being revocable in their nature, it

is now become the practice to enter into mutual bonds, with condition to stand to the award or arbitration of the arbitrators or umpire therein nameda. And experience having shewn the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost imposible to be adjusted on a trial at law; the legislature has now established the use of them, as well in controversies where causes are depending, as in those where no action is brought: enacting, by statute 9 & 10 W. III. c. 15. 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 upon 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 aoth to the court, within one term after the award is made (9). And, in consequence of this statute, it

is now become a considerable part of the business of the superior courts, to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of contempt, as is awarded for disobedience to those rules and orders which are issued by the courts themselves.

xWhart. Angl. Sacr. i. 772. Nicols. Scot. Hist. libr. ch. 1. prope finem.
yBrownl. 55. 1 Freem. 410.
z1 Roll. Abr. 242. 1 Lord Raym. 115.
aAppend. No. III. § 6.
9A motion to set aside an award under a submission by an obligation, must be made before the last day of the next term after the award is made. 9 & 10 W. III. c. 15. s. 2. 2 T. R. 781. But this does not extend to an award made in pursuance of an order of nisi prius. Str. 301. If a motion be made to set aside an award under the statute, because it has been procured by corruption or undue means, or for any matter extrinsic the award, it must be made before the end of the next term; but an application for an attachment for not performing an award, may be resisted at any time for defects appearing on the face of the award itself; for such an award, after that time, might be pleaded in bar to any action brought upon it. Pedley v. Goddard, 7 T. R. 78. But it cannot be set aside for such defects after the end of the next term. 1 East. 276.
Submissions to arbitration were entered into by a rule of the court at the common law when a cause was depending, and the statute of king William 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.
A submission to an award cannot be made a rule of court, where an indictment as for an assault 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
Where a cause is referred by an order of nisi prius, and it is agreed that the costs shall abide the event of the award, this signifies the legal event; and if the arbitrator awards such damages for a tresspass or an assault as would not, if given in a verdict, carry costs to the plaintiff, he cannot recover them under this reference, the award in such instances being not equivalent to the certificate of a judge. 3 T. R. 138. But arbitrators may award costs at their discretion, unless there is an express provision in the rule, that the costs shall abide the event of the award. 2 T. R. 644. If it is awarded that one of the parties shall pay the costs of the action, the costs of the arbitration are not included. H. Bl. Rep. 223.
When arbitrators have the power of electing an umpire, they may chuse him and call in his assistance as soon as they begin to take the subject into consideration. And this is the more convenient practice, as it secures a decision upon a single investigation of the controversy. 2 T. R. 644. 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 before, or referred to, the arbitrators. 4 T. R. 146.
The court will not grant an attachment against a member of parliament for non-payment of money according to an award. 7 T. R. 448. If an arbitrator award that an administrator, who has submitted to the award, shall pay a certain sum, he is precluded afterwards from objecting that he has no assets to satisfy the demand. 7 T. R. 453.
Courts of equity exercise a jurisdiction in setting aside awards, particularly if a discovery or an account be prayed: but an arbitrator cannot be made a party, if it is agreed by the submission bond that no bill in equity shall be filed against him. 2 Atk. 395. Where it was one of the articles of co-partnership that all differences should be referred to arbitration, it was decided, that a court of equity could entertain no jurisdiction of the subject until the parties had referred their disputes to the consideration of arbitrators. 2 Bro. 336. But it has since been determined that an agreement or covenant to refer all differences to arbitration, and not to file any bill in equity, or bring any action at law, cannot take away the jurisdiction of any court in Westminster Hall. But an action might be brought for the breach of this covenant. 2 Ves. jun. 129. And where a submission to an award is made a rule of court, and it is part of the rule that the parties shall file no bill in equity, it is in the discretion of the court of law, whether they will enforce that part of the rule by attachment or not. Ib. 451.
The same has also been decided by the court of King’s Bench. 8 T. R. 139.
When a verdict is taken pro forma at the trial for a certain sum, the plaintiff is entitled to enter up judgment for the amount of the sum awarded, without applying to the court for leave. 1 East. 401. 3 B. & P. 244.
An award to pay money, in consequence of such an illegal transaction as would have been a bar to its recovery in an action, will be so far set aside. 3 B. & P. 371.
An award will be set aside if it is contrary to law. 3 East. 18. Unless it was clearly agreed by the parties, that the judgment of the arbitrator upon the question of law should be conclusive. 9 Ves. jun. 364.
Arbitrations being unattended by the inevitable delay and expence of public litigation, are of such infinite importance to the community, that it is rather surprizing that the legislature has not yet given to arbitrators a power of compelling the attendance of witnesses, or of administering an oath to them. For until they possess this authority, like courts of justice, however wise and righteous their awards may be, it cannot be expected that they can give the same satisfaction to those who are interested in the event of the controversy.

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