DAVIS vs. LEEDS, 7 La. 471

Mathews, J., delivered the opinion of the court. In this case, the plaintiff claims restitution of the price, which he had paid to the defendant, (who is an iron founder in the city of New-Orleans,) for a steam-engine, sugar-mill and corn-mill, which were by contract to have been furnished by the latter, constructed in a manner suitable to carry into effect the purposes for which they were intended.

The petition contains allegations of unjustifiable delays, in making the engine and sugar-mill; of defects in their construction, so great as to render them wholly unfit for the uses, in which they were to be employed, and of a total neglect to make the corn-mill, &c., and concludes by praying, that the contract should be rescinded, the price refunded, and that damages should be adjudged to the plaintiff, in reparation of losses sustained by him,' arising from an impossibility to take off his crops of sugar, &c.

The answer contains a full denial and allegation that the delays complained of, were owing to the fault or assent of the plaintiff. in cases submitted t°T¡Jefe' granting them asamirabíécompounders, the court may revise and rectify tained* °in °the award rendered Whereacause refereeT^with power to act as pounders, their iTptsu" the submission, and made in relationto the matferred^r^them" is without amendment, revision or appeal, On these pleadings the case was submitted, by consent of parties and under a rule of court, to certain arbitrators, chosen by the parties themselves, each of them choosing one, and pointing out by name an umpire, in the event of disagreement, &c.

The powers and authority of arbitrators, known in our jurisprudence, under the denomination of amicable compounders, were by the submission, confined on the persons thus chosen as judges, by the parties litigant. They made, and returned their award into court in due time, which, after cause shown on a rule taken for that purpose against the defendant, was homologated by the court below, and made the judgment thereof, from which he appealed.

This award condemned the defendant to refund the price stipulated and paid for the engine and mills, viz: six thousand dollars, and also assessed damages against him to the amount of five thousand dollars. The correctness of the decision of the court below, depends mainly on a proper

interpretation of certain articles of the Code of Practice, found in the

section which treats of experts, auditors of accounts, and judicial arbitrators, The grounds of opposition, to the homologation of the award, in the present instance, are most of them, (if not all,) such as are usually opposed to awards rendered under ordinary submissions to arbitrators. In cases, submitted without the grant of power to the referees, to act as amia 1 , cable compounders, the court may rectify the errors contained in awards, by them rendered. Code of Practice, art. 459_ .

« gut if, from the submission entered into by the parties, it appears that they intended to give to the arbitrators Power to act as amicable compounders, the court cannot revise the award. It must be homologated as it stands, in order that it may have the effect of a definitive judgment.” Code of Practice art. 460. present case, a * ... grant of power to the arbitrators, to act as amicable compounders, and consequently deprives the tribunals of the country, of all authority to revise the award rendered in pur- - . , . . . , 1 , suance of it.

W hatever has been done, m relation to the matters actually referred to their decision, if done honestly, must remain without the possibility of revision, and as a necessary consequence, without alteration or amendment.

Acts done by such arbitrators, having no just relation to the matters in dispute submitted, would be absolutely void, and gross misconduct on their part, exhibiting a want of due respect, to common and well established rules, in regard to right and wrong, or extreme partiality in their award, would be good causes for setting it aside entirely, if proven to the court, on opposition to its homologation. But nothing of this kind is either alleged or proven, in the present instance.

The whole of the grounds assumed, in the numerous points presented by the counsel of the defendant, relate to want of precision in the manner in which the cause was laid before the arbitrators, and errors in their award, arising from a mistaken view of the facts and the law of the case. If parties will submit their disputes to be decided by men, chosen by themselves as judges, under the appellation of amicable compounders, the}' must abide their judgments, without hopes of having them revised by the courts of justice established by the constitution and laws of the state.

Such judges are not required to determine according to the strictness of the law. They are authorised to abate something of this strictness in favor of natural equity. La. Code, art. 3077. The award of amicable compounders which lias no relation to the matters in dispute submitted to them, is absolutely null and void; and when their acts show dishonesty, gross misconduct, want of due regard to well settled principles, or extreme partiality in rendering their award, these will be good grounds for setting it aside.

Amicable compounders are not required to determine according to strictness of law, but are authorised to abate something of this strictness in favor of natural equity. This

article of the Code, if it stood alone in our jurisprudence, would appear extremely vague and indefinite. What might be considered a strict pursuance of law in the administration of justice, and what a loose adherence to its rules, are questions that wuuld depend ultimately for their solution, on the decisions of courts in the last resort. But it appears to us, that a clue to its

interpretation, (not indeed very evident,) is given in the articles of the Code of Practice above cited, wherein it is declared, that the awards of arbitrators, acting as amicable compounders, cannot be revised by the courts. In

article 3096, of the Louisiana Code, provisions, similar to those contained in the Code of Practice, are found in relation to the awards of arbitrators indiscriminately, wherein it is declared, that “an award, in order to be put in execution. ought to be approved by the judge; but this formality is on]y intended to invest the award with a sufficient authority to ensure its execution, and not to submit to the judge the examination of its merits, except in case an appeal is brought before him.” This article, so far as it relates to an appeal, as well as the one immediately following, appear to us to be totally inadequate to carry into effect their apparent purposes, without the aid of ulterior legislation.

If the appeal spoken of, he intended as one directly to the Supreme Court, means are given by which the case may he brought up; and if the intention was to give an appeal, in the first instance, to the inferior tribunals, and in that way to bring a cause, involving more than three hundred dollars, before the Supreme Court, the same want of means renders it impossible, as the formalities requisite to effect such a purpose ' are not pointed out. The approval recpdrcrtTi'the homologation only intended to toryfand not for an* lamination on its merits.

The to promitting causes to pounders whose award, if not impeached, is not subject to revicourts, % not unconstitutional, In the course of argument, one of the counsellors for the appellant, dwelt much on the unconstitutionality of any act of legislation which would operate in such a manner as to deprive a suitor of the right of appeal, or the right to have his cause revised by the appellate court, established by the constitution, a law which should undertake absolutely to deny the right of appeal, (in any case where the matter in dispute is more than three hundred dollars,) from a final judgment, rendered by a court of inferior jurisdiction, established by law, would be clearly unconstitutional.

But many of the provisons of legislative acts, relating to the manner of taking and bringing up appeals, have in their operation the effect of depriving an appellant of the means of having his case revised in the Supreme Court, on its merits; and these laws have never been deemed unconstitutional. Suppose the legislature had provided no means for obtaining and bringing appeals before the appellate court, as established by the constitution, its provisions on this subject, would probably have remained a dead letter, and the supreme tribunal of the state must have continued inoperative.

In giving life and activity to this Court, the acts passed by the legislature, pointing out the mode in which the judgments of inferior courts may be revised and affirmed, or revised and annulled, and which in their operation do, sometimes, by the neglect of an appellant, preclude the Supreme Court from examining a cause on its merits, are certainly not contrary to the constitution.

The constitutional provision which gives the right of appeal,had reference alone to inferior courts, tobe established for general purposes by the legislature; and if parties to a suit will choose their own judges, under the sole authority of law, they must be bound by the decision of such judges, in conformity with the provisions of law. According to the best consideration we have been able to give to the case, we are of opinion, that the judgment of the District Court is correct. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.