Dudley v. Thomas

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to enforce an award. The case was tried by the Court, who found for the plaintiff, and a judgment was rendered accordingly, from which the defendant appeals. It is objected that the umpire was selected by the arbitrators before they commenced to hear the case, when the articles of submission provided for such selection in the event of a disagreement between the arbitrators. This objection is not tenable. The arbitrators in such case had the [367]right to appoint the umpire either before or after the investigation of the matter had commenced. Indeed, it is the better course that the umpire be first selected, so that he can hear the evidence direct from the witnesses. (Caldwell on Arbitration, 107; Roe v. Roe, 2 Dum. & East. 644; Harding v. Watts, 15 East. 556; McKinstry v. Solomons, 2 J. R. 57; Van Cortland v. Underhill, 17 Id. 405.)

It seems that on the thirty-first day of October, 1860, the parties agreed to submit all matters in controversy between them to arbitration—the award to be made on or before November 6th. No award was made under this submission; and on the second day of April, 1861, they agreed that the same matters should be resubmitted to the same arbitrators, and that the arbitrators should also take into - consideration and render their award upon any damage that the defendant may have been entitled to by reason of any striking given to him by said plaintiff, and the detaining by him from said defendant of certain trucks and chains. The award was rendered May 4th, 1861, that Thomas should pay to Dudley eight hundred and fifty dollars, on or before May 14th, 1861, in full payment, discharge, and satisfaction of all moneys, debts, and demands due from him to Dudley; and that the said parties should, within ten days next ensuing the date of the award, seal and execute to each other mutual and general releases of all actions, causes of actions, suits, controversies, claims, and demands for or by reason of any matter or thing from the beginning of the world down to the date of the said submission. It is objected that the award covers matters not submitted to the arbitrators; but this is not sustained by the record. The award evidently includes no matter not submitted ; nor do we think the award respecting the release goes beyond the 'matters submitted. It includes all matters up to the date of the submission but none since; and it is thus authorized by the submission.

It appears that after the award had been made, the arbitrators, on the sixth day of May, 1861, attached the following certificate, signed by them, to a bill of costs in the case amounting to one hundred and eighteen dollars and twenty cents, viz.: “ We, the undersigned, certify the foregoing to be the correct bill of costs in the