WELLS v. SCOTT, 1 Miles 125

Jones, J. (after statingthe facts). — The provisions of the act of the 20th of March 1810 regulating arbitrations, are in part applicable to the cause while it remains in court, and are directory to the court or its officers, and in part they are referable to the cause after it has been committed to the arbitrators, and their jurisdiction has attached, and therefore are directory to them. ' So far as they relate to the cause while it is in court, they are subject to the construction of the court in the first instance, and if the parties or the officers of the court proceed irregularly, the court may correct the irregularity in a

summary way. But those provisions of the act which relate to the proceeding in the cause after it is out of court and before the arbitrators, are for their consideration and construction. They have all the powers necessary for hearing and deciding without the interference and control of the court. Like any other tribunal, they are competent to decide all questions touching their organization, after due notice of their appointment, or their competency as a forum, subject however to correction if they proceed erroneously.

In this case, two of the arbitrators, duly convened, have decided that they have power to proceed with the cause, (the hearing of it having been commenced) notwithstanding the absence of their colleague. Having previously decided that they would not appoint another, they in effect had decided that his place was not vacant, and having decided that they would proceed, they virtually decided little more than that the absence of their colleague was not a cause for adjournment. If they erred in judgment, it was merely error, not an irregularity which would render their award null.

The principle in 5 Binn. 481, relied on by the defendant, is not applicable to this question, it being merely a question of construction of the act directing their proceedings. Besides, the powers of the arbitrators are rather in the nature of a jurisdiction, than of a mere authority, such as those referred to in 5 Binn. 481. The point then is, whether we can interfere in the way proposed by this rule. We think we cannot, without taking cognizance of matters assignable for error only in a court of error.

As this award does not appear to us to be void, either wholly or in part, this opinion is not at variance with the case of Sheetz v. Rudebaugh in 2 Rawle's Rep. 150. But if the question were properly cognizable in this court, we should say the award is binding, until reversed upon an appeal. The basis of the act is the proceeding by way of arbitration at common law. The act is entitled

an act regulating arbitrations, that is,

an act not devising an entirely new system of proceeding, but regulating and changing, in some respect, and for some purposes, a proceeding previously known. In the 3d

section of the act, the common law distinction between an arbitrator and an umpire is assumed, in order to make it the foundation of the provisions directing the mode of choosing them. The

section first provides for the choice of two, four or six arbitrators, as the parties may agree or the prothonotary direct, and then, in a distinct clause, it provides a method for appointing the umpire. The words are : “ in case the parties agree in the choice of arbitrators, as above directed, the umpire shall be chosen in the manner following,” &c. The inference is inevitable, that- one of the arbitrators sustains the character and office of an umpire, both as it respects the parties and his colleagues. According* to the act, the person last appointed (pursuing the method pointed out by the act) is the umpire. But, by other expressions in the same

section and in the 4th section, it is obvious that he is not merely an umpire. He is so fat* an arbitrator, that it is proper for him to take

part in the cause from the commencement of the hearing; and for that purpose it is necessary that he should be appointed at the time the cause is referred. This is not the course of proceeding in arbitrations at common law. Harding v. Watts, 15 East 559 ; M’Kinstry v. Solomons, 2 Johns. Rep, 57. Still, having designated him as the umpire, the legislature indicated, very clearly, the nature of his functions. In the decision, therefore, of interlocutory questions occurring during* the hearing, as well as in the final decision of the cause, he acts in lire character of an umpire. If his colleagues agree, his action is unnecessary. If they disagree, the decision is

an act of umpirage; Boyer v. Aurand, 2 Watts 74; and not merely a casting* vote. To apply this construction to the case under consideration. The two persons first appointed in this case were properly and merely arbitrators. The person last appointed (if the method of the act was pursued) was, in a general and in the popular sense, an arbitrator, and as an arbitrator, entered with his colleagues upon the hearing of the cause, and took

part in their proceedings and deliberations. But his proper and peculiar, and if I may use the expression, active functions, were those of an umpire ; and his intervention was indispensable only at the points of difference between his colleagues, (if there were any) occurring during the cause, or at its conclusion. It does not appear whether the absentee in this case was the umpire. If this were a matter of importance, we could not defeat the award by a presumption. Kemble v. Saunders, 10 Serg. & Rawle 193, 194.

But the fact is not important; for if the absentee was the umpire, the concurrence of the arbitrators shows that there was no occasion for his interference. If otherwise, the award was the act of the umpire, and made at a time and place duly appointed for making it, under circumstances in which it was impossible that there should be a decision without him. Under the act of 1810, it is not necessary that the time appointed for making (he award should elapse before the umpire can decide. It may lie objected that this opinion is founded upon a literal construction of the act. Be it so.

The construction of the defendant would render the act abortive in this case, after the trouble and expense of an arbitration has been incurred, and thereby defeat the intention of the legislature, which was to facilitate trials and diminish the expense of them ; and certainly it is more just to invoke the aid of common law principles to further that intention of the act, than to defeat it. It is usual for courts to depart, in some degree, from the letter of

an act, to secure its obvious intent, but not to do so for the purpose of defeating it. As a collateral argument, we may add that, by the 6th and 26th sections of the act, the persons appointed arbitrators are obliged under penalty to serve upon at least ten trials during' a year. In a long cause, where many meetings have been had, it would be unreasonable to require two of the arbitrators, where they are unanimous, to commence the cause anew on account of the necessary or wilful absence of their colleague. Yet this must be done, or all that has been done be lost, unless the arbitrators have power to proceed.

In one cause now depending in this court, the arbitrators were occupied, it is said, during seventy-nine days, and the cost taxed upon the appeal amounted to more than 420 dollars. In many cases much time is consumed and great expense is incurred before the trial is concluded. On the score of justice to the arbitrators, and of justice, convenience and economy to the parties, it is better that the act should be construed liberally. It may also be objected, that according to this principle if the absentee were one of the arbitrators, the umpire might make a good award against the consent of the other arbitrator.

Such is the law ; and it is better so, than that the proceeding should be suspended indefinitely. The parties may appeal, and if it is wrong reverse it. This is an advantage which they have not in case of umpirage at common law. It may also be objected that this construction would put it in the power of the umpire to decide the cause in the absence of the other arbitrators, on the clay first appointed for the hearing, and before they have been organized. But this is not so. The office of an umpire implies the previous action of the arbitrators, and the want of concurrence between them.

The case of Douglass against Kenton (ante p. 21), decided at the last June term, was similar to this. In both cases the defendant contended that the two arbitrators had no power to supply the place of the absent arbitrator, nor to proceed in the cause without him ; and when application was made to this court to strike off the rule of reference, the defendant also denied the power of the court to interfere.

Their jurisdiction haying been divested, and transferred to the arbitrators, the court in that case asserted their power to interfere whenever the two arbitrators should determine that they could not or would not proceed to exercise the power vested in them by the act, or it should become inpossible for them to do so. At the same time it was decided [hat the court had no power to direct them how they should proceed. Allusion was made also to those parts of the act referred to in this case, as furnishing a clue to its construction.

These cases show the propriety of giving effect to the full import of every part of the act in aid of its intention. Certainly it is our duty to do so, before we come to the conclusion that the system devised by the legislature is defective. The rule in this case must be discharged.