Davis v. Maxwell

By the Court. Benning J. delivering the opinion.. Was the Court right, in reft.s'ng the mandamus i [371] It is certain, that the Court was right, if Lindsey had th® power to revoke the submission; or, if mandamus does no® lie. to compel arbitrators to act. Lindsey had the right to revoke the submission, if th® case was an arbitration governed by the common law, and, not one governed by the arbitration Act of 1856. Suss. Ark 147. And the arbitration was one governed by the commota law, for it was not made under the act of 1856. This Is apparent'from the fact, that the submission disregards that Act, in several important particulars. That act requires, that the submission shall contain, “a clear and accural® statement of the matters in controversy submitted.” Thfe submission contains no such statement — it contains no statement at all, of those matters. That Act provides, that each, of the parties may be sworn, as a witness ; this submission stipulates, that neither party shall be sworn, as a witness. That Act requires, that the award shall be returned to th® Superior Court next after the making of it; and, shall b<® made a judgment of that Court; and be enforced as s. judgment of that Court; this submission provides, that the successful party shall, before sueing on the award, or on the submission, give thirty days notice to the other party — which provision would be absurd, if the award had. already been made a judgment of the Court, to be enforceé as a judgment. The case then being governed by the common law, amf9 not by the statute of 1S56, Lindsey had the right to revoke the submission. This being so, there was no case for a mandamus, arid, therefore, it becomes unnecessary to decide the other question — the question whether mandamus lies to arbitrators-And we do not decide it, but we do say, that we are rather inclined to think, that mandamus does not lie to arbitrators. Judgment affirmed. McDonald J. absent.