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Swift, Zephaniah, A System of the Laws of the State of Connecticut, Volume II, at p. 7-10 (1796)

Swift, Zephaniah, A System of the Laws of the State of Connecticut, Volume II, at p. 7-10 (1796)
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7. Arbitration is an amicable and neighbourly mode of ſettling perſonal controverſies, between individuals, by ſubmiſſion to certain perſons called arbitrators, and elected by the parties themſelves. It may with propriety be denominated a court created, conſtituted, and appointed by the parties, and the judges derive all their power and authority from the inſtructions which are given them. This mode of adjuſting diſputes among mankind is ſo fair, liberal and friendly, that it is highly favoured by the law, and as the parties elect their own judges, courts are exceeding cautions about ſettling aſide their awards. Arbitrators are ſo called from their poſſeſſing an arbitrary power, for while they keep within the limits of their inſtructions, their determinations are definitive, and ſubject to no appeal: nor can their ſentences be reviewed or reconſidered by any court of law or equity. They are not tied down to the ſame ſtrictneſs, formality and preciſion as courts of law. While they have greater latitude in the mode of proceeding than courts of law, they have ampler powers to do compleat and perfect juſtice between the parties in the deciſion of the matters in diſpute. This freedom from legal formality and nicety, and this extenſive latitude in the mode of proceeding, furniſh arbitrators with much better advantages to adjuſt and ſettle long, intricate, and embarraſſed controverſies, than courts of law can poſſibly have. Where there are a variety of controverſies, arbitrators can comprehend them all under one ſubmiſſion, and ſettle them all by one deciſion. They can make ſuch offsets and diſcounts of mutual demands, and ſuch allowances reſpecting coſt, as are conſonant to the principles of equity. But if the parties are driven to their remedies at law, an action muſt be brought for each matter of diſpute, which muſt have diſtinct trials and determinations. 8

The legiſlature has ſo far favoured this mode of finiſhing controverſies, that a ſtatute has been made enabling parties to make their ſubmiſſion a rule of court, and then on the award of the arbitrators execution may be granted, and ſo in caſe of an action pending before the court, the parties may in like manner make a ſubmiſſion.

The ſtatute law enacts, that all merchants and others deſiring to end any controverſy by arbitration, for which they have no other remedy but a perſonal action, or ſuit in equity, may agree that their ſubmiſſion of the ſuit to the award, or umpirage of any perſons, ſhall be made a rule of any of the ſuperior or county courts, which the parties ſhall chuſe, and may inſert their agreement in their ſubmiſſion, or the condition of their bond or promiſe, and upon producing an affidavit of ſuch agreement, and reading and filing the ſame in the court, or perſonally appearing before ſaid court and acknowledging the ſame, and deſiring the ſame may be made a rule of court, the ſame may be entered of record in ſuch court, and a rule of court ſhall therefore be made that the parties ſhall ſubmit to, and finally be concluded by ſuch arbitration or umpirage, and on the award of ſuch arbitrators being returned into court, in caſe of diſobedience of either parties, ſaid court may grant execution for the ſum awarded, with coſt. When a perſonal action is pending before a court, the parties may make a reference of it, each chuſing a man, and the court appointing a third; and the award made by ſuch referees, or any two of them, and returned into court, and accepted, ſhall be a final ſettlement of the controverſy, and execution may be granted for the ſum awarded, with coſt.

The parties may appoint ſuch a number of arbitrators as they judge proper, but the uſual cuſtom is to appoint three. When they appoint but one, he is called an umpire, and the proceeding an umpirage. Sometimes it is agreed by the parties, that if the arbitrators cannot agree, they ſhall call in an umpire, who ſhall determine the matter; but as the whole proceeding depends on the will of the parties, they can model the appointment as they pleaſe, and the arbitrators muſt purſue their inſtructions. Where three or more arbitrators are appointed, it is uſual to inſert a clauſe in the ſubmiſſion, that either two agreeing ſhall make an award. But if three or more are appointed, and nothing is ſaid in the ſubmiſſion reſpecting 9 the number that muſt agree to make the award, it will be intended and preſumed to be the agreement of the parties, that the majority of the arbitrators agreeing, ſhall make an award.

A ſubmiſſion contains the inſtructions to the arbitrators, and may be general, comprehending all matters of diſpute, or ſpecial, including only ſome particular matter of diſpute, ſpecificated in the ſubmiſſion. A ſubmiſſion may be written or parol. In either caſe it muſt contain the appointment of the arbitrators, and the matter in diſpute that is ſubmitted. If it be general, it is ſufficient to ſay all matters of diſpute; if it be ſpecial, the particular controverſy ſubmitted muſt be deſcribed. It muſt point out the time and place of meeting, and the time when the award muſt be publiſhed. It is proper that the ſubmiſſion ſhould aſcertain the number of arbitrators, that muſt agree to make an award; and whether the award ſhall be in writing or by parol. If this be not regulated in the ſubmiſſion, the rule is, that if the ſubmiſſion be in writing, the award muſt be in writing; but if by parol, then a parol or written award will be good.

Every Å¿ubmiÅ¿Å¿ion to arbitrators implies an agreement and promiÅ¿e to abide the award that Å¿hall be publiÅ¿hed, if the parties make no expreÅ¿s promiÅ¿e. And upon a naked Å¿ubmiÅ¿Å¿ion without any promiÅ¿e to abide, action will be upon the award, in caÅ¿e of non-performance, and Å¿uch award will be a good bar to another action. In Å¿ubmiÅ¿Å¿ions however, it is the uÅ¿ual practice for the parties to become bound to each other, to abide Å¿uch award as Å¿hall be publiÅ¿hed; for this purpoÅ¿e the parties frequently enter into bonds, the conditions of which contain the articles of Å¿ubmiÅ¿Å¿ion, and the inÅ¿truction to the arbitrators. TheÅ¿e bonds are Å¿ometimes delivered to the arbitrators, third perÅ¿ons, or to the parties themÅ¿elves. In caÅ¿e of a delivery to the arbitrators, or third perÅ¿ons, if the parties abide the award, then the bonds are to be given up to them – if not, then to be delivered to the perÅ¿ons abiding the award; but it is moÅ¿t proper where bonds with conditions are executed, that they Å¿hould be delivered to the parties themÅ¿elves: for by the terms of the condition they are void if the party abides; and if not, then the party who refuÅ¿es to abide the award, is liable to the action of the other party, on Å¿uch bond, by force of which he may recover 10 the Å¿um awarded to him. But notwithÅ¿tanding the bond an action will lie upon the award, in caÅ¿e of non-performance to recover the Å¿um awarded.


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