Shriver v. State ex rel. Devilbiss

Chambers, Judge, delivered the opinion of the court. We think the appellant has not successfully maintained the proposition, that this case is not within the act of 1778, ch. 21. Submissions to award, both by rule of court, where an action was depending, and by agreement without suit, are familiar to the law since its earliest history. After the process of attachment became the usual means of enforcing the execution of the award, ■when made under a rule of court, its advantages could not fail to be perceived, over the tedious and less certain mode of suing upon the award, or the contract of reference. But this advantage did not consist in any enlarged powers given to the arbitrators, or to any more convenient system of proceeding by them, under the rule of court. Their powers were exactly defined in all cases, by the language of their appointment, whether that language was found in the rule of court, or in the contract for the submission entered into out of court, and in both cases their proceedings were the same. The reason is expressly given in the Statute of 9 and 10, Wm. III. ch. 15, because the parties become thereby obliged to submit to the award, under the penalty of imprisonment. for their contempt. By this statute, which we hold was received and adopted here, the benefit of the summary and effectual process of attachment to enforce awards, was extended to all cases, in which, by inserting such a provision in the agreement, the submission was made a rule of court, without the usual formalities of a suit. In the suit pending, the rule of court recites and evidences the consent of parties, and the terms of submission, and is in general, the only evidence of the agreement, which, in such case, need not be in writing. In the case of a reference under the statute, the consent must be in writing, and proved in the mode prescribed, but' in both cases the power and authority of the arbitrators, are [12] equally dependent on the terms by which they are appointed, and in each case, the court will enforce the award by attachment. Besides the remedies above noticed the courts had adopted a practice of taking a verdict, by consent, for a nominal sum, larger in amount than the award was expected to be, which, by agreement, was to stand as a security till the award should be returned, when a judgment was entered for the sum found due by the award, and for that reduced amount thé ordinary process of execution was issued. In addition to the cost, and the difficulty of this mode of proceeding, it was confined to such cases as involved the payment of money, it did not avail where the defendant was entitled to recover of the plaintiff, nor could the judgment be for a larger sum. than the award.' For these'reasons it does not appear to have been a proceeding often adopted., Thus stood the law when the act of 1778, ch. 21, passed, by the 8th section of which, the courts were required to give judgment on the award, in any cause instituted, or to be instituted, and to issue execution as they might do upon verdict, confession, or non-suit. So far as we are informed, the uniform practice under this law has been to institute a suit, adversely, or docket an action amicably, and then by a rule of reference, name the persons selected as arbitrators, define the subjects intended to be submitted, and limit the time within which the award is to be returned, the notice to be given to the parties, and every other matter connected with their proceedings. It is not required of us now to .say, whether an agreement in pais, under the Statute of William, and made a rule of reference; as directed by that statute, would be a cause instituted in the court, in which the agreement was made a rule. We will say, we regard the act of 1778 as a remedial law, designed to facilitate the administration of justice, and entitled to a liberal interpretation. In the case before us, the cause had been instituted in the usual way by writ, the arbitrators named, and the extent of [13] their authority defined. The question then as to what were proper subjects of reference, is to be determined by the principles of common law, and not by the Statute of William, or the act of 1778. We think the cases referred to in the argument abundantly prove, that all matters of litigation, whether of law or of equity jurisdiction, whether claims for specific articles of property, real, personal, or mixed, or sums of money; whether such claims be by the party, who, in the suit pending, or in the case to be made a rule of court by written agreement, may be plaintiff or defendant, can be the subjects of reference, and when the award is made and returned to court, pursuant to the act of 1778, a judgment thereon is by that act required. If the award be returned in a common law court, and directs that to be done, which by the ordinary terms of judgment of common law courts may be directed, and to enforce which, therefore, the known executory writs will be the appropriate process, such writs will be issued to execute the judgment. Thus if the award directs payment of money, the delivering over of the possession of lands, or the restoration of a chattel, the writs of fieri facias, habro facias possessionem, or retorno habendo, might be an adequate and proper means of enforcing the judgment on that award, and the judgment must be in favour of the party entitled, whether plaintiff or defendant. If the award should direct a matter, for the enforcement of which the usual writs of execution will not avail, such as the execution of an instrument of writing, then, from the necessity of the case, the attachment must be resorted to, as before the act of 1778. There would seem to be no other means whereby the manifest objects of the statutes can be effected. It is conceded, and cannot be denied that, parties may by mutual bonds of submission select arbitrators, and refer to them any, and all matters of controversy, legal and equitable, of law or of fact, for property, real, personal, or mixed, and that these arbitrators may award finally on all these matters, [14] either for the one party or the other. To execute such an award, the slow process of suit upon the bond, was to be resorted to, and in that suit, the parties were not in all respects precluded from going into a history of the proceedings of the referees, to show a defect in the award, or an irregularity in the conduct of the referees; and a judgment for damages was finally obtained, instead of .a specific performance. The attachment, once confined.to the case of the suit pending, was most assuredly extended by the statute of William, to all cases where the parties chose to. apply to the courts to afford the aid of this process, by making their agreement a rule of court, The act of 1778, has extended the remedy of execution to all causes instituted, not by means of a previous verdict and judgment, bút by requiring judgment to be entered without any preliminary, on all awards, when returned and ratified as by that act is provided, and without lessening the authority of the referees, or limiting the range and extent of their powers, or confining the advantage to the plaintiff on the docket, or to the defendant. We are therefore of opinion that, the objections taken to the character of the award, and the judgment thereon, cannot avail. The language of the reference gave to - the referees all the authority they have exercised, and'it is'no just cause of complaint on the part of the appellant, that having submitted all claims against him, as well as for him, the tribunal selected by himself, after examining the whole matter, has decided against him, and that the court has given judgment pursuant to this decision. On this judgment an execution may issue for the sum óf money awarded, and an attachment will lie to enforce the execution of the releases. There are several minor objections to which the attention of the court was called, but we do not think they are tenable. The act of 1785, ch. 80, sec. 11, expressly requires that, the case be continued, and the powers of this court are quite competent to give such a judgment as the substantial merits [15] of the case require, without the unnecessary costs and delay to be incurred by sending it back to have the regular continuances entered, the omission of which, if indeed it be an omission at all, is but a clerical error. As to the alteration of the time within which the award was to be completed, we think the answer given at the bar quite conclusive, that there is nothing to shew the period when the last day was agreed on, or to prohibit the court from concluding it was at the original execution of the agreement to refer. If however, it appeared on the record, that the parties after the case was referred, by rule of court, had changed the day, by consent fairly expressed, we should hesitate to say that either party could assign as a ground of objection, that the referees had not completed the award within the time first limited. To do so would make the court tributary to the fraud perpetrated by a party against a solemn contract, deliberately executed under the eye of the court, and with its sanction. JUDGMENT AFFIRMED.