Page:The American Cyclopædia (1879) Volume I.djvu/672

 636 ARBITRATION arbitration ; such, for example, as breaches of contracts, differences about partnership affairs, the value of property, and questions of dam- ages in cases of wrongs like assaults, trespass, or slander, where damages might be recovered by suit. Claims relating to real estate might at common law be submitted to arbitration. In such a case an arbitrator might direct that one party convey or release to the other. But a practical objection to this proceeding, so far at least as titles to land are concerned, is that the property in the land cannot pass by the award. In some of the states the statutes re- lating to arbitrations forbid the submission of certain matters pertaining to real estate. Thus in New York no submission can be made of claims to the fee or to life estates in realty; but the same restraint is not imposed as to in- terests in terms for years, nor to controversies as to boundaries, partitions, or the measure- ment of dower. Nor are equitable rights re- lating to real estate withdrawn from arbitra- tion. The policy of the statute in these re- spects has been said in New York to be to withdraw from the unlearned forum of arbitra- tion those questions of title to lands which de- pend on strict technical rules ; and that, since equitable claims even in respect to titles de- pend rather on the general principles of jus- tice, they may be well submitted. In gene- ral, a crime cannot be withdrawn from the cognizance of the courts. But where a person has a remedy by action for private damages, collateral to the public remedy by indictment, as in cases of assault, libel, or nuisance, he may submit the question of his personal interests to arbitrators. Persons who are competent to contract are also capable of submitting their affairs to arbitration. It was the general rule at common law that married women could not make a submission, though there were excep- tions to that rule in favor of women whose husbands were civilly dead or alien enemies. But since the enabling acts which have been lately very generally introduced, giving to married women separate estates, and indepen- dent powers and capacity to contract in re- spect to them, they have been held capable of consenting to arbitrations. An infant's sub- mission is at Qommon law, like most of his con- tracts, voidable by him. Bat it has been held with regard to such agreements of infants, and of married women too, who had not the liberty of contracting which is conferred by the re- cent married women's acts, that if an award is made against a party who entered into an ar- bitration with either of them, it will bind him, even though the woman or the infant cannot be held by it, because he must be presumed to have known that at the outset, and if he did not intend to be bound, he should not have joined in the submission. "Whether one partner can bind his copartners by an agreetpent to arbi- trate has been much discussed, and the weight of authority seems to be against his power to do so. But such an agreement may bind the partner who made it, and he may be held for the damages resulting from the refusal of his copartners to perform the award. In the ab- sence of statutes to the contrary, the submis- sion need not be in any special form, nor even in writing. But in most of the states, under the statutes on the subject, a submission may be made a rule of court ; that is to say, the par- ties may agree that the proceeding be entered of record in a court, and then the award upon confirmation has the effect of a judgment of that court, and may be enforced with the same legal remedies provided for judgments. These statutes require the submission to be in writing and executed with certain formalities. The statutes usually require that the arbitra- tors shall be sworn, and that the witnesses shall be sworn also, either by them or by jus- tices of the peace or other competent persons ; and that the attendance of witnesses may be compelled by subpO3nas issued either by the arbi- trators themselves or by justices or other judi- cial officers. But it has been held in New York, though its statute requires the arbitrator to be sworn, that this is not an essential prerequisite to his jurisdiction, and that the omission of the oath is only an irregularity. When the sub- mission provides for the appointment of an umpire by the arbitrators to decide between them if they disagree, this third person should be agreed upon before proceeding with the arbitration. The hearings by the arbitra- tors should be on notice to both parties; and if they proceed ex parte and without notice to the party against whom the award is made, it is void. All the arbitrators must concur in the award, unless it is otherwise provided by statute or by the submission; and when it is provided that, in case of their disagreement, the decision of the umpire shall be final, the award should in case of such a reference to the umpire proceed from him and be signed by him. The award must dispose of all the questions contained in the submission, and must conform to its terms in all respects. If it includes matters not covered by the sub- mission, it will be good for so much as is au- thorized by it, if that part can be separated from the rest; but if it departs essentially and incurably from the submission, it is fatally bad. The award must be certain in its terms ; that is, it must inform each party precisely what he is to do. It must also be final and conclusive in all respects. The statutes of the several states usually define the grounds on which awards may be set aside. In New York they may be vacated, on application to the court, for corruption or fraud or partiality on the part of the arbitrators; or if they were guilty of misconduct in refusing postponements, or in rejecting proper evidence, or exceeded their powers or imperfectly executed them in material points. And in the same state awards may be corrected for evident mistakes or for other imperfections. Very similar statutory provisions exist in Illinois, Missouri, and other