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    John W. Carey v. The Commissioners of Montgomery County.
    The parties to an arbitration under the statute have no right to revoke the submission after the arbitrators are sworn.
    This is a writ of error to the court of Common Pleas of Montgomery county.
    Erom the bill of exceptions the following facts appear:
    On the 6th of July, 1849, the parties entered into arbitration bonds, in the sum of fifty thousand dollars each, conditioned to abide by and perform the award of certain arbitrators therein named, or a majority of them. The condition recited that said arbitrators had been chosen by said commissioners and Carey, to award and determine all differences, damages, claims and demands existing between them,’ relating to the building of the new court house for said- county, in the city of Dayton; the award to be delivered on or before the 20th of November following. By an agreement of the parties, dated September 18th 1849, the time for making up the award was extended to the 1.0th day of January then next.
    The arbitrators met on the 10th day of November, 1849, under the submission, and proceeded in their labors until the 26th day of the same month, when a majority of the arbitrators made and published their award, thereby determining that the commissioners should pay to said Carey the sum of $30,-. 669.52, and the costs and expenses of the arbitration.
    At the November term, 1849, of the common pleas, the plaintiff filed in that court the award and arbitration bond, and moved the court for judgment, the commissioners having refused to comply with the award. The case was con-tinned to the April term, 1850, when it was, on motion of plaintiff, ordered by the court, that the commissioners show cause, on the 10th of May following, why the award should not be made a rule of court.
    The commissioners answered that the pretended award ought not to be made a rule of court, because, as they said, prior to the making and publishing of said pretended award, to wit: on the 23d of November, 1849, by their deed they revoked the submission to said arbitrators, and all authority to hear and decide upon the matters submitted to them, and further, that said pretended award was not according to the submission.
    Afterwards, at the same April term, the court refused to make said award a rule of court, and' thereupon entered a judgment against the plaintiff for costs. Upon which the plaintiff took a bill of exceptions, setting out the evidence and all the proceedings before the court, which was returned in obedience to the writ of certiorari, to the supreme court for Montgomery county, at Their June tárm, 1850.
    The errors assigned are that the court'sustained the revocation, and refused to make the award a rule of court.
    On the circuit it was objected by the defendants that the citation had not been served upon them ten'days before the commencement of the court. But it appeared that notice of the allowing and issuing of the certiorari was acknowledged ten days before the term.

      Crane & Davies, Odlin & Lowe, T. J. S. Smith, and Hart & Craighead, for plaintiff in certiorari.
    Before entering upon the merits of this case, it may be proper to dispose of an exception, as to the manner in which it was brought into the supreme court in Montgomery county, at June term, 1850. The citation, though issued on the 4th June, 1850, was not served until the 5th, not ten days before the term. But, a notice that a certiorari had been allowed and issued, bond given, errors assigned, cause docketed in the supreme court for hearing at next term, and that plaintiff would pray a reversal of the judgment, was acknowledged by defendant’s attorneys on the 4th June. Swan’s Stat. pages 515 and 516, sections 57, 59 and 60: writs of certiorari may be issued from the supreme court to justices of the peace. The notice provided for by the statute is ten days, and in the absence of any direct legislative provision as to notice on writ of certiorari to the common pleas, and for uniformity of practice, and by analogy, we claim the rule of notice to be the same upon all writs of certiorari, from the supreme court. This notice was in time, and is an answer to any exception to the citation. The statute is silent as to citations and notices in writs of certiorari in the supreme court, and they can be required only in analogy to writs of error, or, certiorari, as above stated.
    We maintain this proposition, that by the law of Ohio, when arbitrators have accepted their appointment, taken the oaths, and entered upon the performance of the duties assigned them, they become, by the mutual acts of the parties, and by the law, a tribunal to hear and determine the matters submitted to them, and neither party can, at pleasure, revoke their power and authority.
    In England, from the time of Lord Coke until the statute for the amendment of the law 3 and 4 William IV, ch. 42, the language of the courts, repeated in all the treatises on arbitration was, that an agreement to submit to arbitration was executory, and revocable, until executed by an award. Vynior’s case, 8 Coke’s Rep. 82, is the leading one, and the fountain head from which this power of revocation is derived. In 5 Edward 4, 3, b, it was held that a party could not revoke, when bound by obligation to perform the award, though he might do so on a mere parol agreement. 8 Coke 82; Kyd on Aw. 31. The reasons assigned by the court in Vynior’s case, partake of the quaint and 3ubtle logic of the school-men, which so strongly infected the spirit of the age, and particularly the writings of Lord Coke. His illustrations, drawn from a .power of attorney to collect debts, grant livery, etc., etc., remind one of Fluellen’s figures and comparisons of Henry of Monmouth with Alexander of Macedon. In the interval between Vynior’s case and the statute of William III, a practice grew up in the courts, of directing or recommending a submission to arbitration of causes pending, which involved the investigation of accounts, which submission was made a rule of court, and the award enforced by attachment. Kyd on Aw. 34, b and c; 2 Sellon’s Practice 241.
    The statute of William III, was made to put submissions to arbitration in cases where there was no cause depending upon the same footing as those where there was a cause depending. Lucas v. Wilson, 2 Burr Rep. 701. In either case the courts, under the authority of Vynior’s case, held the authority of the arbritrators revocable before award made, but with this material difference: where the submission was by rule of court in a cause pending, a revocation was treated as a contempt, and punished accordingly. Hagget v. Welsh, 2 Cond. Eng. Ch. Rep. 68. In submissions where no suit was pending, the only remedy was by action on the submission bond. If the authority given the arbitrator was in its very nature revocable, and could not be made otherwise by tho most express agreement, why punish as a contempt the exercise of this natural, intrinsic and inalienable right in the one case where submission was by rule of court, in a case pending, and let him go unpunished who, when no cause was pending, had submitted the matters in dispute to the arbitrators, bound himself to perform the award, stipulated it should be made a rule of court, yet had prevented an award being made, by revoking the authority of the arbitrator ? *What was an arbitrator, what were his powers, what means did he possess to do the work assigned him, in England, during the long interval between Vynior’s case and the act for the amendment of the law of William IV ? 3 and 4 William IV. ch. 42; 3 Wend. Blacks. Com. 17 ; 2 Chitty’s Practice 80. He was the mere agent of the parties appointing him, deriving all his power and authority from them, to hear and determine the matters submitted to him if they or either • of them choose to permit him, himself unsworn, no power to compel the attendance of witnesses, or on their voluntary attendance to cause an oath to be administered to them, and parties, in causes pending and referred to arbitration, were compelled to resort to the awkward expedient of getting their witnesses sworn in advance in court to testify before the arbitrators. Of this makeshift, parties, where no suit'was pending, could not avail themselves. It is not surprising that the courts should sustain the power of revocation, where an arbitrator was a mere agent, with such curt, maimed and inadequate means to do his work and find out the truth and right of the matters submitted to him.
    But the party exercised this power at his peril, for his bond became single, and judgment for the penalty was rendered against him. 8 Coke’s Rep. 83. Though the general language of the courts and writers on the subject was, that an agreement to submit to arbitration was revocable until an award made, yet we do not find any decided case where it was exercised, as in this case, after the arbitrators had heard all the evidence, arguments, etc., and after such full hearing, were about making their award. Courts of equity have held that a revocation of a submission to arbitration, though good at law, may, under circumstances, be bad in equity. Harcourt v. Ramsbottom, 1 Jac. and Walk. 491. In equity a defendant is not permitted to set up a legal defense tvhich grows out of his own misconduct, nor is a plaintiff at liberty to ask the aid of the court in respect of an act done by him against good faith. Where an award Was made after the submission had been revoked by the plaintiff, equity will not restrain the defendants from acting on the award, unless the plaintiff had good grounds for revoking the submission. Pope v. Lord Duncannon, 16 Cond. Eng. Eq. Rep. 177.
    The English treatises on arbitration refer to 8 Coke 82, Brownlow 62, and 7 East. 607, as authorities to sustain the power of revocation at any time before an award made.
      Vynior's ease, 8 Coke 82, was an action of debt brought on a bond of ¿620, dated 15th July, sixth year of the reign of James I. Oyer of the bond and condition was demanded ; it appeared by the condition that the defendant agreed to abide by the award of William Rugge, etc., if made before, etc. Defendant plead ed that the arbitrator made no award. Plaintiff replied, that defendant, before the time limited for making the award, revoked in writing, etc., all authority whatever of the arbitrator, contrary to the form and effect of the condition and of the submission, etc. To this replication defendant demurred. The court held: 1st, That defendant, though bound to abide by the arbi trament, etc.,.yet might countermand the authority of the arbi trator, etc. 2d. Notice of the countermand to arbitrator need not be averred, it was implied in the words “ he revoked and abrogated all authority, etc.;” and 3d, By countermand of the authority of the arbitrator, the obligee shall take benefit of the bond; 1st, because he has broken the words of the condition, etc., and 2d, because the obligor has by his own act made the condition of the bond impossible, and by consequence his bond is become single, and without the benefit or help of any condition. And judgment was given for the plaintiff. The only question in this case was, whether the act of the defendant was a forfeiture of his bond. The court held that though he might revoke, the revocation was a breach of the condition. The question was not as to the nature or extent of a revocation, but whether the act of the defendant, preventing the making an award, was a breach of the condition of his bond. The defendant, by his own act, had made the condition of the bond impossible ; whether he could rightfully do this act or not, it was, in either case, a breach of the condition. It was not necessary to the decision of this case, to determine the nature or extent of the power of revocation. The same ease is reported in 1 Brownlow 62, under the name of Wilde v. Vynior.

    In Milne, etc., Assignees v. Gratrix, 7 East 1608, the revocation was on the day before the one appointed by the arbitrators for a hearing; the arbitrators and umpire had notice of the revocation, yet they proceeded, appointed meetings, etc., and an award was made by the umpire within the time limited. The court held the award a nullity, and that there was no authority in the umpire to make the award at the time. Lord Ellenborough, C. J., says, “ before the statute of William III, a submission to arbitration might be revoked before it was executed, and there is nothing in that statute to make it irrevocable while it continues executory.” The revocation in this case was before the arbitrators had acted, or taken on themselves the burthen of the award, and the question was, whether, under these circumstances, after notice of revocation, an award could be made. Allen v. Watson, 16 Johns. Rep. 204, a case much relied on by defendants, turned on a question of pleading. It was an action of debt on a bond in the penalty of $500, dated October 17,1817, conditioned for the performance of an award, etc. The defendant, after oyer of the bond and condition, pleaded no arvard. Replication, an award made 17th December, 1817. Rejoinder, that before award made or the time for making it had expired, defendant by writing, etc., revoked the power of the arbitrators, etc. On a general demurrer to the rejoinder, it was held good and no departure from the plea. True, the court remark, “ there can be n'o doubt that the defendant could revoke the power conferred by the arbitration bond.” But when, under what circumstances, or in what stage of the proceedings before the arbitrators ? From the report, we cannot ascertain whether the revocation was before or after the time of meeting of the arbitrators. This case was decided in 1819. As the statute law of New York then stood, the act of February 28, 1791, was merely a transcript of the statute of William III. The amendatory act of April 17, 1816, empowered any justice to administer an oath to the witnesses before arbitrators. By the revised statutes of 1824, “ neither party shall have power to revoke the powers of the arbitrators after the cause shall have been finally submitted to them, upon a hearing of the parties, for their decision.” 2 Paine & Duer’s Pract. 677. Whether we are right or not in supposing that no case parallel with the one now before the court can be found in the interval between the judgment in Vynior’s case and the statute of 3 and 4 William IV, for the amendment of the law, it is certain that that statute, for the first time established in England an efficient tribunal for the ar bitrament of causes. It took away the power of revocation, except by permission of the court in session, or of one of the judges thereof in vacation. The power conferred on the courts by this statute, is exercised with great caution, as we may learn from the opinion of Chief Justice Denman, in Scott v. Van Sandem, 41 Eng. Com. Law Rep. 456. That a system so liable to abuse, so defective as a means to an end, as the old arbitrations of England were, should have been borne so long, can be accounted for only from the engrossing and enormous pressure of public business in the English parliament, perhaps still more so from the blind reverence of antiquity and the almost superstitious fear of change, so characteristic of the people of that country.
    In many of the states it has been held, that on a submission, made ih a cause pending, neither party could directly or indirectly prevent the arbitrators or referees from proceeding, or revoke their authority without the permission of the court. In North Carolina, Tyson v. Robinson, 3 Ired. Rep. cited U. S. Dig. 135. In Massachusetts, Haskell v. Whitney, 12 Mass. Rep. 47, 51, 52. In New Jersey, Beckham v. Denny, Cox N. J. Rep. cited 1 Amer. Com. Law Dig. 438. The act of New Jersey, regulating references and determining controversies by arbitration, Patterson’s N. J. Laws 141, provides for making the submission to award, etc., a rule of court, and subjecting the party disobeying the award to a contempt. When a cause is- referred by rule of court to referees, their report, or of a majorty of them, if confirmed by the court, shall be final, and judgment entered thereon. Arbitrators and referees to be sworn before entering on their duties. Process of subpoena for witnesses, who shall be examined on’ oath. In Pennsylvania, there were four species of awards: 1st, those made by mutual consent, in pursuance of arbitra tion bonds entered into out of court; 2d, those made in a case depending in a court of law or equity, upon the consent of the parties to refer the matter in variance; 3d, those made under a rule of court, by virtue of the statute of 9 and 10 William III; and 4th, under the act of 1705, where plaintiff and defendant consent to a rule of court referring the adjust ment of their accounts to persons mutually chosen by them in open court; the award or report of such referees made according to the submission, and approved by the court, and entered upon the record, shall be as available in law, as a verdict, and the party to whom any sum of money is awarded to be paid, shall have judgment therefor. Kyd on Aw., Amer. edit. 34, a; Williams v. Craig, 1 Dall. Rep. 314. Under this act, neither party could directly or indirectly rescind the rule of reference, without permission of the court; Oxley v. Olden, 1 Dali. 430; nor defeat the rule by removal of the cause to a superior court, after the arbitrators had entered on the business ; Grubb’s Exec. v. Grubb’s Exec., 2 Dall. Rep. 191; Huston v. Admr’s of Dunwoody, Kyd on Aw. 34, c, nor by discontinuing the cause, Pollock v. Hall, 4 Dall Rep. 222. In the last case cited, the court say, “ we are at liberty to deny the right for which the plaintiff contends, and the policy of the legislature, as well as the principles of justice, will sanction the denial. The act of-assembly sought-to compose strifes, to shorten litigation, by assigning an amicable tribunal, to which the parties might voluntarily resort; and when both have agreed to resort to that tribunal, it would be inconsistent with the general nature of an agreement, to permit one of them alone to withdraw from its jurisdiction. Feuds would be inflamed, instead of being allayed; and suits multiplied instead of being diminished, by such a construction of the law.” In 1806, the legislature of Pennsylvania, to facilitate arbitration without the intervention of an attorney, and in cases not depending in court, passed a law “ entitled an act to regulate arbitrations and proceedings in courts of justice.” The principal alterations of existing law produced by this act, appear to be the following: 1st. An award in writing, made under a written agreement of reference, and filed in the office of a prothonotary, after proof of the agreement by a subscribing witness, is as available as an award made under a rule of court.
    2d. The parties themselves may enter into an amicable action in vacation, and may then agree to the usual rule of reference, etc. Kyd on Aw. 34, R. In Horn v. Roberts, 1 Ashmead’s Rep. 45, it was held, that an action cannot be discontinued after the jurisdiction of the arbitrators has attached, and their jurisdiction is considered as attaching from the moment of their appointment. Where, previous to the meeting of arbitra tors, the plaintiff entered a discontinuance on the docket, and then attended a meeting of arbitrators, and after they were sworn, offered to discontinue, it was held that the discontinuance could not divest the jurisdiction of the arbitrators. Ib. And it seems, that if a plaintiff were to discontinue, in the presence of the arbitrators, before they were sworn, and the arbitrators were nevertheless, to proceed, and find for the defendant, the court could not interfere. Ib. See also, 2 Sellon’s Pract. 248 ; 3 Burr Rep. 1256 ; 1 Salk. 73. But these Pennsylvania decisions were made in causes pending and referred under the statute of that state. If courts, in causes pending, can restrain parties from directly or indirectly stopping the proceedings of arbitrators, why should greater latitude be allowed, where no cause was pending, and the parties had bound themselves to each other, to perform the award, and that it should be made a rule of court ? That all authority is revocable, that it cannot be deprived of this quality by the most express agreement, may be the logic of the schools; common sense and common honesty, however, will hold, with the supreme court of Pennsylvania, that when parties have both voluntarily agreed to resort to an amicable tribunal to compose their strife, it would be inconsistent with the general nature of an agreement, to permit one of them alone to withdraw from its jurisdiction. That arbitrators may misbehave, that an award may be obtained by fraud, corruption, or undue means, is no reason for the existence of such a power of revocation, because such fraud, misbehavior or undue means, if shown, will set aside the award when made. This power of revocation is a new and open question in Ohio; we are not aware that it has been sustained by the decisions of any of our courts. The subject is alluded to in the opinion of judge Brush, Hunt v. Guilford, 4 Ohio Rep. 816. The submission in that case was at common law, not under the act of 1805, then in force the award having been made on the 15th of February, 1817. In 1795, the governor and judges adopted the act of Pennsylvania, of 1705, 1 Chase Stat., ch. 41, sec. 3, p. 146. The act of 15th November, 1799, differed in some important respects from that of William III. Parties could compel, by legal process, the attendance of their witnesses, who were examined on oath, unless otherwise agreed by the parties. 1 Chase’s Stat. 218. The act of 14th February, 1805, contained the same provisions as to witnesses, and authorized any justice to administer an oath to them. 1 Chase’s Stat. 481. By the act of February 17, 1831, the arbitrators and witnesses are required to be sworn, parties to have the benefit of legal process to compel the attendance of witnesses, where the award is for the payment of money, the court, at the next term thereafter, if no legal exceptions be made thereto, shall enter up judgment thereon, as on a verdict of a jury, and issue execution thereon, after the amount specified in the award is due and payable; and where the award directs the performance of any other act or thing, other than the payment of money, enforces such performance, either by attachment, sequestration, or execution, as the nature of the case may require. Swan’s Stat. 67. An attempt to corrupt an arbitrator is punishable in the same manner as one to corrupt a judge or justice. Id. sec. 79, p. 246. Witnesses are made liable to an indictment for perjury. Id. sec. 9, p. 230. An attempt to corrupt them is indictable. Id. sec. 30, p, 245. By this act, the legislature have created a judicial tribunal, with all the means and powers necessary fully to hear and determine, under the sanction of their oaths, the matters submitted to them. It is true, that the'judges of this domestic tribunal are selected by the parties, but the selection once made, and they have accepted the appointment, taken the oaths, and entered on the discharge of their duties, the law then interposes, and erects them into a legal tribunal, competent to hear and determine the matters submitted to them. The power of revocation, as claimed and exercised in this case, is wholly inconsistent with the object and design of the legislature, in the act of 1881, and must operate as a virtual repeal of the law. The arbitrators, under this act, are not the mere agents of the parties, dependent on the caprice of either of them, for the exercise of their functions; they are judges, chosen by the parties, confirmed by the law, sworn faithfully and impartially to discharge the trust committed to them. To apply to such a tribunal the rules governing English agencies, called arbitrations, would be a blind and servile adherence to precedents, settled in a totally different state of circumstances, and wholly inapplicable to our situation, circumstances and legislation. Is there anything in this rule of Vynior’s case, so consonant to our understandings, our notions of good faith, our sense of right, that we must adopt it, when cast off by its makers, as mischievous and worthless ?— adopt it, against the letter _and spirit of our own act of assembly, and with a full -knowledge of the mischiefs which have resulted elsewhere from its adoption and use ? This pretended power of revocation, at any stage of the proceedings, under any circumstances, so it be done before the award is actually made, signed, sealed, and ready for delivery to the parties, would not only render an arbitration a mere mockery, and operate as a virtual repeal of the statute, but would inevitably lead to worse consequences; it would hold out the strongest temptations to tamper with the arbitrators, “ to feel their pulse,” to hold the power suspended over their heads, to be used or not, as the scale might incline for or against the party. We need not resort to conjecture ; the facts in this ease furnish ample proof of the consequences which must result from such a power. But the defendants stand upon the law; this power of revocation is a principle of the common law; our forefathers imported the common law into the colonies; our courts cannot usurp the power of legislation ; the shackles of the common law can only be broken by the legislature. By the common law, a parol exchange of lands, situate in the same county, was good, provided each party went into possession of the lands acquired by such exchange. This was a principle, better settled than the rule in Vynior’s case, which was contrary to the year books of Edward IV. Besides, there was nothing in it inequitable, and the fact of exchange was established by the mutual possession of the parties. The writ de heretico comburendo, was part and parcel of the common law; we read it at large in Fitzherbert’s Natura Brevium 601, c., but we call on no legislative aid to save heretics from the stake. Our own courts have fixed the limits of the common law in Ohio. “ They will adopt its principles as the rules of decision, so far only as those principles are adapted to our circumstances,, state of society, and form of government.” Lindsey v. Coats, 1 Ohio Rep. 245. And we may add; of our own course of legislation. Our courts will not adopt a principle so pregnant with mischief, as that the title to real estate may rest in, and be evidenced by parol only, or that heretics shall writhe at the stake, or that our act regulating arbitrations, shall be made a mockery and a snare, by the so called common law power of revocation.
    But without further discussion as to the power of revocation, let us examine how and in what manner it was attempted to be exercised in this case. The defendants, in their corporate capacity as commissioners, on the 23d Nov. 1849, caused a paper to be drawn up, purporting to be an absolute and peremptory revocation of the power of the arbitrators. By the testimony of John Mills, auditor of Montgomery county, it appears that he “ received no instructions from the commissioners .as to how or when the revocation was to be used; was to receive these from their counsel; knew of no •went or condition,, as received from the commissioners, upon which he was to use the revocation ; was to receive instructions from their counsel. They wanted it drawn up and ■ kept ready to serve if prudent to do so.” Again, “ commissioners had given Haynes & Howard entire control of the matter, and he, witness, was to act on their opinions and instructions.” It appears from the testimony, that the revocation, though drawn up on the 23d November, was not entered on the minutes of the commissioners until the 26th November, and though on its face absolute and peremptory, it was not the purpose that it should be served, as soon as conveniently might be, on the arbitrators. Its service was in fact contingent, dependent on the further action of the arbitrators, and had such further action held out an expectation of a favorable result, it would not have been used at all. Now, even if the act of the defendants on the 23d November, had been officially complete, yet if after making it, they suffered the arbitrators to go on, progress a- little farther, we submit that this suspension of action was a waiver on their part of the resolution of the 23d, and a subsequent determination to revoke should have been evidenced by a new resolution for that purpose. Notice to quit, by a landlord to his tenant, is waived by the receipt of rent for a subsequent period, and a new notice becomes necessary. Again, the holding a revocation suspended over the arbitrators, the defendants, as Mills testifies, “ always understanding the progress the arbitrators were making,” was a fraud on the other party. This corporation could not thus dally with its resolution, keep it awaiting the further action of the arbitrators, to be used only on the contingency of such further action being contrary to their views and interests. If this revocation could be drawn up and suspended over the arbitrators on the 23d November, why may it not have been made on the 1st November (the time appointed for the meeting of the arbitrators), to be used as occasi*n might require ? And further, the defendants had given their counsel “ entire control of the matter, and he (the auditor) was to act on their opinions and instructions.” “They” (the counsel) “wanted it” (the'revocation) “drawn up and kept read.'to serve, if prudent to do so.” These defendants could not delegate this power of revocation, if any such they had, to be exercised at the discretion of their counsel, or of any other person. There is a great difference between a corporation appointing an agent to carry its resolutions into effect, and that of giving counsel, or any one else, a discretionary power over the resolution itself, to determine, as they may deem prudent, when, how, under what circumstances it shall be acted on, or whether it shall be acted on at all. The former the corporation may, and generally must do; it cannot delegate to agents a discretionary power over its resolutions, to be acted on or not, as such agents may deem prudent. An act, to be lawfully and effectually done by a corporation, must be absolute, unconditional, not dependent on a contingency whether it shall be done or left undone, and no agent can be invested with a dispensing power over the resolves of the corporation, to carry them into effect or not, at his discretion. The language of Judge Grimke, in Green v. State, for use of Licking county, 8 O. 814, is directly applicable to this point. “ If such were the consequences, we should have to. look to the power of the county commissioners, and I apprehend we should find that they do not possess the authority to appoint an agent with the power that is claimed for him. They are mere agents of the public themselves, and the case would not form an exception to the general rule, that delegated power cannot be delegated.” Objections have been and may again be made as to the conduct of the majority of the arbitrators in making up the amount of the award. Though in this state of the case the conduct of the arbitrators is not properly drawn in question, yet we may briefly advert to this point. Judge Mitchell testifies, “ for the last three or four days of our deliberations, a majority of us came to the conclusion that we never could be unanimous, and that we had sufficiently borne with each other. We from a distance had nothing else to do but to deliberate as we did, night after night, sometimes till midnight; I mean Barbee, Scott and myself; we, with Jewell, took up the- plaintiff’s bill, went through with it, item by item, of the disputed items. There is not a dollar, if a cent, allowed in the. award but which underwent the examination of the five members who signed it.” The testimony shows that the award of Coleman & Robinson was adopted by a majority of the arbitrators, on the second day after the cause was submitted; after closing the evidence and arguments, it was the chief cause of difference among them, and repeated, though unavailing attempts were afterwards made by the minority to get rid of it. If it were proper now to examine the correctness of this decision of the majority of the arbitrators, we think it would be easy to show that the award of Coleman & Robinson was conclusive on the parties, and that the arbitrators could not go behind it, to examine the merits of the controversy settled by it. The examination of the various controverted items required time, care and labor; that this time, care and labor was bestowed on the accounts of the parties, is fully shown by the journal kept by Judge Mitchell, who acted as the secretary of the board, which journal is embodied in the bill of exceptions. The entries in this journal were read daily, and approved by the board. It shows that after the evidence and arguments had closed, the arbitrators were engaged in the investigation from the 19th to the 26th November, 1849. They had been engaged from the 1st to the 19th of November, in hearing the evidence and arguments of the parties. That the award was not submitted to two of the arbitrators, for their concurrence, was owing to themselves : they chose to absent themselves, though distinctly apprised that their colleagues, notwithstanding the pretended revocation, would proceed and complete their award.
    A few words as to the objection attempted to be sustained by a dictum of Vice Chancellor Leach, in 1 Cond. Eng. Eq. Rep. 267 ; that award purports to be made by all che arbi~, trators, though signed only by five. The legal wits of the day nicknamed Elden oyer sans terminer, and his vice chan cellor, Leach, terminer sans oyer. The objection is one of apicos juris, “ the nice, sharp quillets of the law.” The award shows, as it ought to do, that all the arbitrators named were sworn, that they met at the appointed time and place; (Strum v. Cunningham, 3 Ohio Rep. 287; McInroy v. Benedict, 11 Johns. Rep. 402; Kyd on Aw. 106, 107, n. g.; Swan’s Stat. sec. 7, p. 68 ;) continued from day to day, heard all the evidence and arguments of the parties, deliberated for days on their award, in which five out of seven of the arbitrators concurred. Surely such an exception cannot affect an award so made, either on principle or authority.

      Haynes & Howard, G. B. Holt and C. L. Vallandigham, for defendants.
    The principal, if not the only question in this case, is, whether a submission to arbitration by bond, according to our statute, can be revoked before an award is made. As to the power of revocation, we are governed by the common law, unless that has been changed by our statute. We admit the proposition that our “ courts will adopt the principles of the common law, as the rules of decision, so far only as those principles are adapted to our circumstances, state of society and form of government.” Lindsley v. Coates, 1 O. Rep. 243. But what is there in our circumstances, state of society, or form of government, so different from those of the people of England, that the law governing arbitrations will not answer for us, as well as for that people ? That is an agricultural, commercial and manufacturing country; so is this. Our pursuits and habits are similar, our modes of business and legal remedies are generally the same. We cannot perceive any such difference as should lead our courts to set aside the English common law as to arbitrations, as inapplicable to us. What then is the common law, upon this subject? We think there is nothing in that law better settled by repeated decisions, without one conflicting, than that any party to a submission, may at any time before an award is made, revoke .the power of the arbitrators, and that an award made after such revocation, is null. Vynior’s case, 8 Coke 82. decided 7 James I, is the leading case, and settled the law. If we take Lord Coke’s explanation of the prior decisions, we shall not find, as counsel for plaintiff claim, that they were the reverse of that in Vynior’s case, for referring to 5 Ed. IV, 3 b, where it is said, “ if I am bound to stand to the award which J. S. shall make, I could not discharge the arbitrament, because I am bound to stand to his award, but if it be without obligation, it is otherwise.” Lord Coke says, “ it was there resolved, that in both cases the authority of the arbitrator might be revoked, but then in the one ease he shall forfeit his bond, and in the other he shall lose nothing. So that according to 5 Ed. IV, the authority of the arbitrator might be revoked, whether the submission was by parol or by bond, but if by bond, it was forfeited by revocation. The English decisions following and sustaining that in Vynior’s case are numerous, but as there are none conflicting with it, we shall content ourselves with citing but a few, fully sustaining the position we hold, that while the authority of the arbitrator depends upon the agreement of the parties, as it does when the authority is derived solely from the agreement, it may be revoked. King v. Joseph, 5 Taunt. 452; Newgate v. Degelder, 2 Keb. 10, 20, 24. Milne v. Gratrix, 7 East 607; Warburton v. Storr, 4 B. & C. 103; Aston v. George, 2 B. & A. 395; Green v. Pole, 7 Bing. 443; Lucas ex dem. Markham v. Wilson, 2 Burr 701; Clapham v. Higham, 7 Moore 703; Stewart v. Williamson, 5 Bing. 425. See also, Stephen’s Nisi Prius 143-4; Kyd on Awards 29-30 ; Watson on Arbitrations and Awards 27, republished Law Lib. No. 175, p. 36; Billings’s Law of Awards 263, republished Law Lib. No. 153, p. 152; Russell’s Arbitrator 147, republished Law Lib. No. 187, p. 147; Bac. Ab. Arb. B. In Lowes v. Kermode, 2 Moore 30, it was doubtful whether the arbitrators had made their award before or subsequent to their receiving notice of revocation, and the court would not stay proceedings, but left it to be pleaded puis darrein continuance, and to be tried by a jury. The American decisions, so far as we know, where the law has not been changed by legislation, are to the same effect. Allen
      v. Watson, 16 Johns. 205; Bray v. English, 1 Conn. 493 ; Rowley v. Young, 3 Day. 118; Aspinwall v. Tousey, 2 Tyler 328; Hunt v. Wilson, 6 N. Hamp. 36; Frets v. Frets, 1 Cow. 335; Peters v. Craig, 10 Dana 307; Morfleet v. Southall, 3 Murphy 189 ; Frink v. Ryan, 3 Scammon 324 ; 7 Vermont 237 ; 10 Vermont 91; 6 New Hampshire 498; 3 Hayw. 42.
    It is claimed, however, that the case of Vynior did not turn upon the nature or extent of the power of revocation, but that the question was, whether the defendant had forfeited his bond by preventing the making an award. It is the same question. If the arbitrator could go on and make an award, nothwithstanding the revocation, if his power was not thereby ended, if he was not prevented from awarding, and an award afterward made would have been operative, the act of the defendant was nugatory, and he had not violated the condition of his bond. In deciding that he had violated that condition, the court must have held the revocation effective, and the cases we have cited show that the courts so regard that decision. But the authority of that case, and of all the others, is sought to be weakened by attacking the grounds of it. The reasons assigned are thought to “ partake of the quaint and subtle logic of the schoolmen.” They seem to us to spring rather from the vigorous and manly intellect and good sense of Lord Coke, and that much more subtlety is exihibited in the attempt to prove that bonds of submission do not confer a mere power, but that there is a “ coupled interest,” and that arbitrators become, by the submission, a sort of “judicial tribunal,” with authority to determine controversies, whether the parties are willing or not. Whence is the power derived ? Not from the law. It does not establish such a “judicial tribunal.” The public authorities do not appoint them, and confer the power. Their power is derived solely from the act of the parties, and is conferred by their deeds. They are the agents of the several parties, to settle differences between them, and their agency must determine at the will of either. We admit the general 'proposition, that an authority coupled with an interest, and where its revocation would be a fraud upon the party in interest, is not revocable. But we have yet to be told what interest is coupled with an agreement to submit, or how the revocation of a submission is a fraud upon any party in interest. The parties retain all their rights, and have as full and ample remedy as before the submission. They are defrauded of nothing, and have lost nothing. A party may have been put to expense and trouble, but he has a remedy for all damages, upon the bond or agreement. As well might it be claimed that a power of attorney to convey land, was irrevocable, because one who proposed to purchase, had gone fifty miles to look at the land, paid counsel for examining - the title, and for advice, and had incurred other expense and trouble.
    Our proposition is, that a submission is revocable at any time before an award is made. If it is a mere power, as the authorities show, it may, like every other power, be revoked at any time before it is executed. What is the power conferred upon the arbitrators, and when is it executed ? It is to award upon the differences between the parties, and can it be said to be executed, until that award is made ? It is not executed until the authority given is exhausted, and there is nothing more to be done under it. It is argued that a submission cannot be revoked after the testimony and arguments have been heard, and the matters in controversy left with the arbitrators for decision. Why fix that particular time, and not as well the opening of the case before them, or the time when witnesses are first subpoenaed or depositions taken, or any other particular point in the case ? It is arbitrarily assumed, because it happens to suit this case, and was suggested by the New York statute of 1824. We think it is hardly necessary to inquire at what particular point in the proceedings the revocations were made, in the reported case, for we think it can make no difference. In the case, however, before referred to, Lowes v. Kermode, 2 Moore 30, it was a doubtful question whether the revocation was before or after the publishing the award, and that question was left to be tried upon the plea filed. In Hunt v. Wilson, 6 N. H. 36, the revocation was served on the arbitrators after award made, and before it was delivered to both parties, and the award was sustained, solely on the ground that “ a proviso, that the award shall be published, does not imply a formal' notification to the parties.” Counsel seem to argue that the submission is executed, when the case is left with the arbitrators for decision, that, in fine, that is the submission, then for the first time made, and that the execution of the bonds is only the agreement to submit. This probably does not “ partake of the subtlety of the school-men,” but it is too fine for us. The agreement to submit, is the submission, and that' confers the power to award, a power which is never executed till award is made, and is therefore, till then, revocable. It is either irrevocable from the beginning, or not so till executed, and in admitting that “ where the parties have done nothing more than agree to submit,” (that is, by executing their bonds,) “ such submission, in the nature of things, remains revocable,” the counsel for plaintiff admits our whole proposition.
    At common law, then, a submission by bond or parol, to say nothing of those by rule of court, remained revocable till award was made. Has our statute, changed the common law ? Are any of its provisions inconsistent with the power of revocation, thus taking away that power? Many, and indeed most of the decisions to which we have referred, were under the statute of 9 & 10 William III, passed for the purpose of enabling persons having controversies out of court, to submit them to arbitration, and have awards therein enforced by rule of court. Our statute of 1831, is almost identical with that, in its provisions, and very similar in its language. It was evidently drawn from that statute, and indeed almost copied from it. To the differences, we shall refer presently. The preamble to the statute of William III, among other things, recites, “ for rendering the awards of arbitrators more effectual in all cases,” “ for the final determination of all controversies submitted to them.” And the statute enacts, that “ it shall, and may be lawful, for all. merchants and others desiring to end any controversy,” etc., “ by arbitration, to agree, etc., that their submission, etc., shall be made a rule of the court,” etc., “ and upon affidavit, etc. a rule shall thereupon be made by the said court, that the parties shall submit to, and finally be concluded by the arbitration,” etc. This language, bearing much more strongly than any in our statute against the power of revocation, was forcibly adverted to, by counsel in the case of Milne v. Gratrix, 7 East 610, and insisted upon as binding the party irrevocably to the submission. But the court held otherwise. Lord Ellenborough remarking that, “ before the statute, a submission might be revoked before it was executed, and nothing in the statute made it irrevocable while it continued executory. The statute says it shall and may be lawful for the parties to agree that their submission should be made a rule of court, which agreement, (that is, so long as it subsists as an agreement unrescinded,) shall or may be entered of record. After it is made a rule of court, the parties cannot rescind it, without a breach of the rule, but till then, it has its binding force, as an agreement only, to submit to the award of the arbitrators, whose authority is in its nature revocable, and for the breach of which agreement, the party has a remedy of another sort. Then if before an award is made, one of the parties have revoked the authority of the arbitrators, they cannot make an award to bind him.” The case of King v. Joseph, 5 Taunt. 452, is to the same effect, and the numerous English cases we have cited, as well as the American cases under similar statutes. It is claimed, however, J that there are certain provisions in our statute, different from those in William II, which do repeal the common law, as to the power of revocation, and we are referred to that which requires the arbitrators and witnesses to be sworn, and for compelling the attendance of witnesses, and to another requiring that “judgment shall be entered upon an award, when filed in court, as upon a verdict of a jury, between the parties.” ' How do these provisions affect the power of revocation ? It is still from the agreement of the parties, that the power of arbitrators is derived, and from that only. That power is simply what it was under the statute of William III, to award upon the differences between the parties. The facilities for obtaining testimony afforded by the statute, and the difference in the modes of proceeding on the award when made, can in no way affect the power to make that award, or the right to revoke that power. It does not make arbitrators any more a judicial tribunal, nor any less the mere agents of the parties, to settle their differences, that the statute enables them more fully to get at the truth, by process issued from the courts for, and oaths administered by judicial officers to the witnesses. The law does not establish such judicial tribunal, and appoint the judges. The New York statute of 1816, amendatory to that of 1791, provided for the administration of oaths. But the cases, Allen v. Watson, 16 Johns. 205, Frets v. Frets, 1 Cow. 335, were under that statute. We believe the provisions of the Connecticut statutes were similar. Yet the cases we have cited, held the power to revoke. The court, it is true, enters up judgment upon the award, when filed, and enforces it by execution, instead of making the submission a rule, and enforcing it by attachment for contempt. But that award must have been made by virtue of “ an agreement unrescinded,” in the language of Lord Ellenborough, and “ if before such award is made, one of the. parties have revoked the authority of the arbitrators, they can make no award to bind him,” and no rule of court can be made or judgment rendered thereon.
    But the Pennsylvania decisions are relied upon as authorities to direct our courts in the construction of our statute. Possibly they might be, if there were any resemblance in the Pennsylvania statutes and ours, or any similarity in the modes of proceeding under them, or the circumstances to which they apply. By the Pennsylvania statute of 1705, plaintiffs and defendants, having mutual accounts to produce, one against another, might submit the same to referees, mutually chosen in open court, and their report or award, approved by the court, and entered of record, should have the same effect, and be as available in law, as a verdict of twelve men, for any sum of money awarded, and judgment or scire facias for the recovery thereof, be had. Here is an action pending in court; the plaintiff and defendant choose certain persons, instead of the twelve in the jury box, to decide their case, to make an award, or find a verdict, upon which the court renders judgment, as if the verdict were that of the twelve in the jury box. It is all in an action in the court, not dismissed therefrom, nor ended by a rule, when the reference is made, that the parties shall stand to the award, but remaining pending in the court, for judgment to be entered therein on the report of the referees. The parties have simply agreed, that one set of triers should be substituted for another, and the courts of that state say, perhaps properly, that they shall not rescind the rule, nor discontinue the cause, and thus defeat the finding of those triers. This proceeding is widely different from the common law submission by order of court, and totally unlike our statutory proceeding. The whole matter there is in the court, from the beginning to the end, (the referees, it is true, sitting apart from the court,) and every thing done is under authority derived from the court. No bonds are executed, as with us, and no power thus conferred. Though they are chosen by the parties, the power of the referees is derived from the court. With us, there is no action pending, the court makes no order, and knows nothing about the controversy, the submission, or award, until that submission and award is filed, and the court asked to enter up judgment. The fact, that in this case, a suit had been commenced in the court of common pleas of Montgomery county, and removed to Preble county, can be of no consequence, as the submission was made wholly independent of that suit and not by any order therein, and, indeed, was to be made a rule of the court of Montgomery county, where the suit was not pending. The statute of Massachusetts, under which the cases referred to in Mass. Reps, were decided, we have not before us, but understand, that like that of Pennsylvania, the reference under it was by rule of court, and in actions pending, and that it was even compulsory. The proceeding in New Jersey was similar. In references, in neither of the three states was any bond of the parties required, and the whole power of the arbitrators came from the order of the court. In none of the cases referred to was the attempt made by a party, directly to revoke the submission, because it was well understood that the submission was not the mere act of the parties, and that the power conferred by the court, not by them, could not be withdrawn by them. It was therefore attempted to avoid the reference, by a discontinuance of the action, by suffering a nonsuit, or by rescinding the rule, which the courts would not permit. The cases from these states, then, are no authority for us, and it does not become necessary to discuss the authority of a court, which has construed “ mutual accounts,” as including an action of ejectment for land, and a choice of referees before a prothonotary, to be a choice in open court. From the note we have of the case Tyson v. Robinson, 3 Iredell, we suppose it to be under a statute similar to that in New York R., sec. 1824, taking away the power of revocation. By giving to our present statute, the construction and effect that counsel for plaintiff claim, all power of revocation, under any circumstances, is taken away. By the statute 3 & 4 William IV, the power of revocation is preserved, but it must be with leave of the court, or a judge of the court of which the submission is to be made a rule, and such leave will, of course, be granted on sufficient cause shown. In Pennsylvania, New Jersey, Massachusetts, and other states, where there are similar proceedings, the reference being by rule of court, that rule will always, on proper showing, be rescinded, and an award prevented. But with us, if this view of our statute be correct, there can be no revocation, and no means of preventing arbitrators from awarding, though cause might exist, which would be recognized as fully sufficient, by the courts of England, or of those states to which we have' referred, to require them to rescind the rule, or to grant leave to revoke. We have jno provision by which the court, or any judge can act in the matter, and however improper and corrupt the proceedings of arbitrators may be, nothing can prevent or restrain them from making a final award. The legislature of Ohio could not have intended to make such the law of the state. Does a review of the legislation in Ohio sustain the position of plaintiff’s counsel? The governor and judges of the territory, in 1795, adopted and published the Pennsylvania statute, concerning defalcation, and it may be properly argued that if that had remained in force, the Pennsylvania decisions would be authorities here. But it did not. It was expressly repealed by the act of 1805, “allowing mutual debts and demands to be set off,” etc., 1 Chase’s Statutes 490. The territorial legislature, in 1799, with the Pennsylvania statute adopted by the governor and judges, and then in force before them, did not re-enact that statute, but adopted that of William III, with some modifications, as to compelling the attendance of witnesses and examining them upon oath, without prohibiting revocations. This, too, was after a construction had been given to the statute, William III, by repeated decisions. The general assembly of the state, in 1805, at the same session that the Pennsylvania statute, adopted by the governor and judges, was repealed, adopted the act of the territorial legislature, without any essential modification. The law of 1831 was passed subsequently to that of New York, taking away the power of revocation, after the testimony and argument were closed, and the cause submitted for decision. Whoever drew the act of 1831, we must suppose, had the revised statutes of New York before him, and if that act had been intended to have the same effect as the statute of New York, that intention would have been expressed, and not left to a forced inference.
    We understand that a statute is held to repeal a prior one only where it does so in express terms, or where its provisions are inconsistent with the former one. We suppose the common law to be changed or repealed by a statute, only when the provisions of that statute are inconsistent with it. Cannot the common law right of revocation remain, and our statute be enforced in all its provisions ? Why not as well as that of William III ? If it can, then the common law is in force here, and the right of revocation exists. Legislatures are presumed to know, when passing any act, what the existing law is. Is it to be supposed that if it was meant, in the successive acts passed, to take away or deny the power of revocation, it would not have been mentioned, nor alluded to ? The common law of England is ours. It is as binding upon us as upon the people of England. It was the law of our forefathers before they emigrated here ; it was brought to the colonies with them; was the law of those colonies, and is the law of the states they became, and of the new states since formed and grown up around them. It is subject, however, to be changed, at any time, by their several legislatures, as it is by the parliament of England. But good or bad, right or wrong, it is in force till changed by legislation. It is not for the courts to usurp the power of the legislature, and alter the' law; but it is their duty to administer the law as it is. Whether the common law is better or worse than the statute of William IY, or the law of New York or Pennsylvania, we shall not discuss. We do believe it better and safer, that the law should stand as it is, than that there should be no power in a party to a submission, in a judge, or in any of the courts to stay an arbitration, and prevent an award under any circumstances whatever. If there were but a single English decision, or but few decisions to establish what is the common law, and if there were but few decisions in other states sustaining our position that the right of revocation still exists, the court might properly hesitate, and consider well before deciding this case. But the law upon this question is as well settled as it can be upon any. We find it in the Year Books. It is recognized in the Abridgments of Bacon, and others. It is laid' down by Lord Coke, by Mansfield, and by almost every English judge to the present time. It has been adopted in most of the American states as a part of the common law, and continues to exist except where abolished by statute. The common opinion of lawyers, we think, regards this as a long settled question, and we suppose it is not because no submissions have been revoked, that we find no cases in Ohio, but because the legal right to do so has not been questioned. The court will see, that we have been almost quoting the language of Judge Lane, in McFeely’s Lessee v. Moore’s Heirs, 5 Ohio 461, as to the rule in Shelly’s case; and we may properly quote the remainder. “ If its policy be doubted, let the legislature be called to act; but if the court should disregard a rule which has prevailed so widely, and subsisted so long, it would be an unfaithful interpretation of the law.”
    Counsel for the plaintiff argue, that the revocation in this instance was a gross violation of all right and propriety, and is a striking illustration of the bad effects resulting from the power of revocation, as we claim it. We deny this, and maintain that the submission ought to have been revoked, and that it was a proper case for the exercise of that power. After the testimony and arguments were closed, and the cause submitted for decision, and as soon as the board entered upon the consideration of the matters before them, there was disagreement among the members of that board, as to the principles upon which they should proceed. There was disagreement as to many and large items of the accounts. There would have been a difference of twenty-five or thirty thousand dollars, in the results to which the two portions of the board would have arrived, in the whole account. There were, as appears by the testimony, violent and angry dissensions, the minority being convinced that the most outrageous injustice was about to be done by the majority. There was no hope of unanimity, and indeed, as Mr. Mitchell testifies, it was clear that a majority only, would have to make the award. Hid it furnish no reason to revoke their authority, that a mere majority (it was not then known that Mr. Achey would concur) was about to award thirty-thousand dollars against the defendant, which a most respectable minority of the board believed unjust, and that there was such angry dissension in the board? This reason would have been sufficient. But there were other things in the proceedings of this board, which show improper conduct upon the part of four of them. Before considering the lemands and account of the plaintiff, it was resolved, as appears by the minutes of their proceedings, made part of the testimony, that “ all resolutions which may be offered at the meetings of this board, shall be reduced to writing, and the yeas and nays recorded on every vote, if demanded by any member.” And again: “Resolved, that we now proceed to the examination of Mr. Carey’s account against the Commissioners of Montgomery County, item by item, until we pass through the entire account — agreed.”
    Under this resolution, Grimes, Green and Achey supposed that all that was done, was done in full session of the board, while they were present; that all the items were to be there separately considered and discussed, and that the amount to be awarded was to be determined there, by the whole, or majority. But what was the fact? After the board had adjourned, night after night, without the knowledge of any of- the others but Jewell, three, Barbee, Mitchell and Scott, secretly retired to a private room, and were engaged till one and two o’clock, in making calculations, summing up items, and arriving at the amount to be awarded; in fact, making up an award. How was it made up? One portion of the account was turned over to Mr. Scott; Barbee and Mitchell took the other portions, and in the morning Mr. Jewell called in and concurred in the whole that was done. An award was thus secretly agreed upon, among the four, and they were about to spring it upon the minority, and carry it by a majority vote, on the morning when the notice of the revocation was served upon them. It was only after receiving that notice, that they thought it prudent to consult Mr. Achey, and if they could, obtain his concur rence. They gave him a few hours to examine their calculations, to go over all the different measurements of work; to ex amine all the testimony with regard to them, and indeed to determine upon two-thirds, in amount, of the plaintiff’s claim; no easy matter, when there were the widest differences in the measurements, and the greatest discrepancies in the testimony. But he had time enough to discover some improper allowances, and force the others to a different award from what they had intended. Now w.e claim that this conduct was so improper, that under the statute of William IY, a court would have permitted a revocation; that if it had been a reference by rule of court, that rule would, in England, or in any of our states, have been rescinded, and that if the majority had, on the morning referred to, passed the award they were prepared to, it ought to have been set aside. Law Lib. No. 137, p. 181, and authorities cited; Pinney v. Krymer, 3 Adolph. & Ellis 245. To sustain such a proceeding as this it is that the court is called upon to set aside the existing law, and usurping a power that even the legislature does not possess, make a retroactive law. There remains but one position, assumed by the counsel for plaintiff in this case, which demands our attention, and that does not seem to us to require any labored argument. It is claimed that the commissioners did not, in fact, revoke the submission; and the argument proceeds upon the ground that the revocation was really conditional, and depended upon a contingency; and that it was left to others to determine whether it should, in fact, be made. We have the record of the commissioners in evidence, and are to learn from that what they did. By that record, it appears that the board of' commissioners resolved to revoke, and did revoke the submission absolutely, and upon no condition or contingency; and that the deed by which the revocation was made, was signed and sealed by all the commissioners, and made part of that record. It certainly was not necessary that they should go in a body, to the room of the arbitrators, tc notify them of the fact. True, the arbitrators would be justified in proceeding until they received notice, but when they have notice of the action of the commissioners, they have no right to proceed farther. That notice the commissioners might give in person, or it might he given by the auditor. Now, if they had given parol directions to Mr. Mills, to serve the notice on the happening of some contingency only, or to withhold it upon the happening of some contingency, we do not understand that it could have the effect of making a revocation contingent or conditional. Their act is of record, as their acts must' be, and they cannot undo it, by any parol orders, especially if made at the time, and inconsistent with their recorded resolution. The testimony of Mills and others would not have been competent to show that the action of the commissioners was different from what it appears ,by the record of their proeeedings. But the testimony does not show that the purpose of the commissioners was different from what is shown by the record. Certain expressions in the testimony of Mr. Mills, are quoted, separated from the remainder of his testimony, and a meaning sought to be given them, that he did not intend. His testimony is really as explicit as the record, as to the fact that the revocation was absolute and unconditional. He says he knew .of “ no event or condition upon which he was to use the revocation.” “ The commissioners had determined to revoke, but the time and manner were left to the counsel,” that is, the time and manner of notifying the arbitrators. The facts are, simply, that the commissioners had become satisfied there could not be an award in which all the arbitrators could concur, and that any award, made by the majority, would be grossly unjust. They determined, therefore, to revoke the submission, and did so; the notice to be given under the direction of the counsel. The giving of the notice was delayed from Friday evening till Monday morning, at the request of the two arbitrators, Messrs. Grimes and Green, the former, at least, having some hope, that the majority might be brought to make an award, in which all could concur. If such could have been the case, it is not unlikely that the reasons for the revocation, having ceased, the counsel, without authority, would have taken the responsibility of withholding the notice and permitting the award to be made. We do not admit that the revocation would have been inoperative, if it had been to be served only on a contingency. But as in this case, it was absolute, there can be no question about it.
   Avery, J.

When this case came before the supreme court in the county, objection was made to proceeding, at least at that term, to a hearing in the case, for the reason that the citation was not served upon the commissioners till the 6th of June, not ten days before the term. It was issued upon the 4th of June, which was ten days before the term, and on the same day, as appears by the papers on file, a notice to plaintiff’s attorneys, containing information that a certiorari had been allowed-and issued, was acknowledged by the defendant’s attorneys. The facts, as given above, furnish no reason, in the opinion of the court, either for striking the cause from the docket of the county, or continuing it to the next term, as we have no law requiring a writ to be issued, or service to be made ten days before the term.

The only question necessarily raised upon this record, concerns the power of revocation by the parties who have entered into arbitration bonds. The commissioners claimed the right to revoke the submission, and took such measures as 'they deemed appropriate for the exercise of that right. Whether the revocation was effectual, to put an end to the power of the arbitrators, and render their award a nullity, is now to be decided.

The board of arbitrators named in the submission, consisted of seven members. They entered upon the performance of the duty assigned them, on the first day of November, and were engaged in the case, hearing the testimony of witnesses and the arguments of counsel, until the nineteenth of the same month, at which time they proceeded to deliberate upqn the matters submitted to them, to determine upon the various claims of the parties, and to prepare for making up their final award. This service required a good deal of time and patient investigation. The board kept a journal of their proceedings and recorded, when it was demanded, the votes of the members, upon every proposition submitted, as they continued, from day to day, to discuss and vote upon the several items in the plaintiff’s account.

On the 23d of the month, while they were still engaged in the business submitted to them, the commissioners met, as Mills, the auditor, testifies, and between two and three o’clock P. M., made an order, under their hands and seals, that the power and authority -which had been before given to the arbitrators, be revoked, that the submission be annulled, and that notice be served upon the arbitrators to proceed no further to award upon the said differences. A form of the notice was drawn up at the same time, and signed by the commissioners. The witness does not know that he remembers why the revocation was not served on the day it was executed; if his memory serves, it was for the purpose of letting the arbitrators progress a little further with their work, thinking they were not near the end of it. Eor similar reasons, it was not served on the 24th. He does not know that other arbitrators, except Green and Grimes, were informed that revocation had been determined on. We always, he says, understood from Green and Grimes, what progress the arbitrators were making. This -witness was employed to serve the revocation upon the arbitrators, but he received no instructions from the comissioners as to how or when it was to be served. He was to receive instructions from their counsel. They wanted it drawn up and kept ready to serve, if prudent to do so. Green and Grimes conversed with witness on the morning of the 26th; they had been told by the witness, before the arbitrators met, that counsel had decided on revocation. Green wanted an organization of the arbitrators, and all to be there, when he was to inform the witness, who was to make his appearance, and read the revocation. The witness served the revocation upon the arbitrators between nine and ten o’clock A. M. The foregoing facts are collected from the various parts of the testimony of Mills, as given before the court of common pleas. Mitchell, one of the arbitrators, testifies that the journal contains an account of what occurred after the testimony and arguments of counsel were heard, till the board finally adjourned. He says it was intended at the time, to make the journal of the 26th particularly accurate, as the revocation was presented on that day. He says — " for the last three or four days of our deliberations, a majority of us came to the conclusion, that we never could be unanimous, and that we had sufficiently borne with each other.”

It appears evident enough, from, the testimony given in the case, that all the arbitrators, on the 26th of the month,'were looking for a revocation of their authority, to be presented sometime on that day; and further, that it was the intention of a majority of them, to determine upon an award, before it should be presented. Green and Grimes withdrew, after the revocation was read, but the other five arbitrators remained together, and on the same day made and signed the final award in the case.

It appears from what is above stated, that though the labors of the arbitrators were brought nearly to a close, their award was not actually made out, until the paper, designed to put an end to their authority, was handed in to them; so that the question may be regarded as sufficiently before us, whether these commissioners had the right to revoke the submission, if it was done before the award was drawn and executed.

This question is a new one, coming now for the first time to be considered and ■ decided by this court. It must be observed that it arises upon the statute authorizing and regulating arbitrations, which has furnished to these parties a guide for every step in the proceeding, and • must furnish to this court the law of the case, wherever its provisions are applicable. This statute provides for submitting all controversies, except when the possession or title to real estate may come in question, to any person or persons mutually agreed upon by the parties, and for making such submission a rule of any court of record in the state.

The parties may enter into bonds, conditioned for the faithful performance of the award, setting forth the names of the arbitrators and the matters submitted; and when such is the agreement, that the submission be made a rule of court. The bonds must specify time and place for holding the arbitration, allowing the arbitrators liberty to adjourn from time to time, until an award be made, some certain time being specified in the bond for making the award.

The statute provides that the parties shall have the benefit of legal process to compel the attendance of witnesses; that the person disobeying such process, shall be deemed guilty of contempt of the court from which the process issued, and subject to the penalties inflicted upon persons disobeying writs of subpoena in other cases.

The arbitrators, and all witnesses, shall be under oath, to be administered by any judge or justice of the peace of the proper county.

That the award shall be drawn up in writing, and signed by the arbitrators, or a majority of them, and a true copy, without delay, be delivered to each of the parties.

That if either party refuse or neglect to comply with the award, the other party may file the same, together with the submission or arbitration bond, in the court named in the submission, or if no court be named, then in the court of common pleas in the county where the arbitration was held.

That such court, at its next term, if no legal exceptions be taken to the award or other proceedings, and the award is for the payment of money, shall enter up judgment thereon, as on a verdict of a jury, and issue execution, as in other cases.

That so far as the award directs the performance of any thing, other than the payment of money, the party disobeying, shall be liable to be punished as for a contempt of court, either by attachment, sequestration, or execution.

That if any legal defects appear in the award, or other proceedings, or it shall be made to appear, on oath, that the award was obtained by fraud, corruption, or other undue means, or that the arbitrators misbehaved, the court may set aside the award.

Further, the statute fixes the sum to 'which each arbitrator shall be entitled for his services, and the fees of witnesses, and. of the judge or justice for administering- oaths, directing them to be taxed by the arbitrators and inserted in their award.

This is certainly very minute and comprehensive legisla tion, designed and calculated effectually to guard, as well as to enforce, the several rights of the parties interested. The provisions of this law demand a liberal interpretation from courts, for the purpose of advancing the object and extending the remedies "contemplated by its passage. It is obvious, from looking at this law, that it is capable of becoming extensively useful in its operation. It settles controversies speedily, by men against whom neither parties would object, and generally at the place where the parties and their witnesses reside. It may often be appealed to advantageously, for the settlement of important difficulties, because it affords to parties the privilege of selecting for their triers, men of superior and known intelligence and integrity. This law embraces within its scope, every subject of dispute, except it be the possession and title of real estate; comprehending all cases in equity and at law, whether sounding in tort or contract, and allowing parties to settle one or several and complicated matters of differ ence, by a single arbitration. As the board of arbitrators created by it may try and determine questions so various in their character, so they may take jurisdiction over the largest interests, and of sums unlimited in amount.

When the legislature enacted this law upon the subject of arbitrations, gave powers so ample, and at the same time guarded them so carefully, they never could have meant to allow an interference like this right of revocation. They could not have intended that the arbitrators should be sworn-to the faithful performance of their duty, should proceed, by the examination of witnesses and otherwise, throughout the hearing of the case, and at last, when about to make up their award, be exposed, at the mere will of one of the parties, to be suddenly deprived of their authority. The common law right of revocation, had it been introduced here, and acted upon, before the enactment of such a law as the present, might well enough be deemed, after its passage, to have been abrogated by it, or left to operate alone upon common .law arbitrations.

In Pollock v. Hall, 4 Dall. 222, the court would not permit a party to defeat a rule of reference, by discontinuing the cause, and they use, in that case, the following language: " The record of cases does not show any judicial decision of ours; therefore, we think we are at liberty to deny the right for which the plaintiff contends, and the policy of the legislature, as well as the principles of justice, will sustain the denial.”

Since by no decision of this court, has the principle of revocation been applied to the proceedings of arbitrators under our statutes, and no settled or uniform course of practice appears to have prevailed over the state, there exists no precedent or usage to control the decision of this case.

In Lindsley v. Coates, 1 Ohio Rep. 245, the court say, respecting the common law: " It has been repeatedly determined by the courts of this state, that they will adopt its principles as rules of decision, so far only as those principles are-adapted to our circumstances, state of society, and form of government.”

Pursuing the spirit of that decision, and with our view of the whole subject, we would not adopt the common law principle of revocation, and allow it to operate upon arbitrations conducted under our statute.

But if the general right of revocation were to be acknowl edged, it might still be questionable, looking at all the facts and circumstances disclosed, whether it should be decided that the defendants had, in this case, accomplished the revocation which they designed.

We hold, that the right to revoke the submission, did not exist at the time when the attempt was made to exercise it.

And we hold further, that no such right exists at any time after the arbitrators are sworn.

The judgment of the Common Pleas is reversed.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    Elizabeth and Mary Ann Nelson v. William D. Nelson and others.
    Where a testator divided all Ms property, except Ms homestead, among his children, and devised that, after the death of Ms widow, to his three sons, with a proviso, that his unmarried daughters should not be deprived of a home upon it while they remained single, — Held :
    That this proviso gave the daughters a right to reside on the homestead, but not to a maintenance from the rents and profits.
    This is a bill in chancery, reserved in Morgan county.
    The complainants are the children of James Nelson, de ceased, who have filed their bill, claiming certain' rights under the will of their father, of which they allege they have been deprived by the defendants, who are also children and devisees of James Nelson. The case involves a construction of his will. It provides as follows:

      “ First. I give and bequeath unto my beloved wife, Priscilla Nelson, all my whole estate, goods and chattels, lands, and tenements, of whatsoever nature, or wheresoever found, so long as she remains my widow, by paying all my just debts and funeral expenses, as soon as convenient, after my decease, and to remain on my home farm, in Deerfield, aforesaid, and to have the nett proceeds thereof, for to assist her in bringing up the children, schooling and clothing them, and in case any of my daughters should marry, to be furnished with such goods as my wife can best spare, as nigh the amount as may be to what my daughter, Catharine Scott, has received.

      “ Secondly. I give and bequeath unto my three sons, namely, John Nelson, William Davis Nelson, and Thomas Nelson, my home farm, after the death of my wife, to be divided equally among them, share and share alike for them, their heirs, executors, administrators, or assigns, forever; — ■ Provided, that in case any of my daughters should not be deprived of a home while they remain single, and in case any of my daughters do remain unmarried until the death of my wife, it is my will and desire for each of them to receive out of my estate, ap equal portion with those that have been married; also two hundred and eighty acres of land which I .hold in Randolph county, Yirginia, it is my will and desire that it should be sold, and the proceeds thereof to be equally divided among all of my children, share and share alike; it is also my will and desire, that the rest, residue, and remainder 'of my estate unto my three sons, aforesaid, share and share alike.”
    On the death of the widow, the three sons, to whom it had been devised, took possession of the homestead farm, and divided it amongst them. John, the oldest, has since deceased, and his children, with the two surviving brothers, are still in possession. The evidence shows the whole farm to be worth about $2,500, and the value of the annual rents, $80.

      The bill alleges that the complainants are the unmarried daughters of James Nelson, deceased; that under his will they are entitled to a residence on the premises, and also to a support from the rents and profits thereof, and that the defendants have refused them such residence and support. The guardian of the infant children of John Nelson, deceased, has answered, denying that they have ever prevented the complainants from residing on the farm, and also denying their right to-a support from its proceeds.

      M. Clark, for complainants.

      Hayward & Meese and C. C. Covey, for defendants.
   Caldwell, J.

We find no evidence in this case that the complainants have ever been prevented from residing on the homestead, and consequently, the only question presented for consideration, is, whether, by the provisions of the will, they are entitled to their maintenance from it. It will be seen that the devise of the homestead farm to the three sons and their heirs, is absolutely made, with the single proviso, that if any of testator’s daughters should remain unmarried, they should not be deprived of a home on it.

On the part of complainants, it is contended that the term home, as here used, implies, not only a place of residence, but also, a right to maintenance. The term home, generally means nothing more than the place where a person has his habitation — his place'of residence. The habitation or home may be, and often is, at one place, and the means of support at another; there is no necessary connection between them. If the proviso had been made in favor of persons, who, when the contingency might happen, would be unable to support themselves, and who would necessarily have to depend on the care and support of others, there would be more force in the suggestion that the term home should be taken in the comprehensive sense contended for. It is not a proviso in favor of those who might become sick or disabled, or from any cause might need the personal assistance of others, “ but in case they should remain unmarried.” The testator had provided that his wife should enjoy the homestead during her life, provided she remained his widow. It is also clearly expressed in his will, that he expected their children to live with her. In case of her death, the three sons were to take possession of the farm, and enjoy it; but the unmarried daughters, who might reasonably be expected to be living with their mother at her death, were not to be disturbed in their right to a home, on account of the change of owners. The evidence • in the case shows that the complainants were raised to habits of industry, and that they have maintained themselves by their own exertions.

Although the compensation for a female’s labor is small, yet every one acquainted with the farming community knows, that the labor of the female part of the community is worth more than the cost of their support, and that when in health, they are a burden on no one. Besides, the testator had devised property to all his children; he had made provision for his sons and daughters separately, and a portion of his property he had divided amongst all his children equally: what amount came to each one we have no means of ascertaining; it may have been a fair and sensible division of his property, or it may not. We have only the value of the piece of property' about which the present controversy arises: it is said to be worth about $2,500, and the annual value, from $75 to $80. The yearly value of each of the sons’ share would be from $25 to $27. Now this amount is so small, that, in the absence of any terms necessarily expressing it-, we think it could not reasonably be inferred, after dividing it amongst his sons, that it should be charged with the support of his unmarried daughters; the whole amount would be insufficient to maintain them, if they had to depend on it solely for support, and might leave the devise to the sons wholly valueless. As good brothers, the defendants are morally bound to support their sisters, if in need, to the extent of their ability; but we do not think that the will makes their maintenance a charge on the farm; we think it merely gives them a right to live on it, and as there is no evidence that they have been deprived of this right, the bill must be dismissed.


author: Hitchcock, C. J.

text:
    Thomas W. Abernathy v. Latimore, Jenkins & Co.
    After the defendant has appeared by attorney in the court below, pleaded to the action, and judgment has been rendered against him, he cannot assign for error in the supreme court, that he was not served with process, nor that the attorney who appealed and defended for him, did so without authority.
    Where an attorney appears without authority, and acknowledges service, or files a plea, and judgment has been entered against the defendant, the court may on motion vacate the judgment, and let him in to defend.
    By the act of February 27th, 1846, suit may be brought and declaration filed in the name' of a firm or company, without specifying the names of the members of the company.
    This is a writ of error to the court of Common Pleas of Clermont county.
    The record in the case shows that on the fourth of October, 1849, a summons was issued at the suit of the defendants in error, by the name of Latimore, Jenkins & Co., against Thos. W. Abernathy and Nehemiah Morse in an action of debt, and directed to the sheriff of Clermont for service and return. The writ was issued during the September term, 1849, of the court of common pleas of Clermont county, and made returnable forthwith.
    This writ was returned on the same day, indorsed as fol lows: “ We do hereby waive the service of process, and enter our appearance in the above case,” signed “'S. W. Abernathy, Nehemiah Morse, by Smith & Ashburn, their attorneys.”
    Smith and Ashburn are regular attorneys, praticing law in the county of Clermont.
    On the 5th day of November, of the same year, the plaintiff below filed a declaration in debt, against Abernathy and Morse, upon a sealed bill for one hundred and nineteen dollars and eighty-five cents; the declaration- also containing the common counts.
    On the 8d of December of the same year, a plea of the general issue was filed to this declaration, which was signed by Smith and Ashburn as attorneys for the defendants.
    During the pendency of the suit, Morse died, and his death was suggested in pursuance of the statute.
    At the April term of the court of common pleas, the parties appeared by their attorneys, and by their consent the case was submitted to the court. The court found the issue joined for the plaintiff below, and entered a judgment against Abernathy, tbe surviving defendant, for one hundred and nineteen dollars and eighty-five cents debt, seven dollars and forty-three cents damages and costs.
    To reverse the aforesaid judgment this writ of error is prosecuted.
    The errors assigned are—
    1. That neither the plaintiff in error, nor his co-defendant in the original suit was served with process.
    2. That neither of the said defendants in said original suit, authorized any agent or attorney to appear for them in said case.
    8. That the alleged appearance of the attorneys for the defendant in that case was without authority.
    4. That the plaintiffs have declared and obtained judgment in the name of Latimore, Jenkins & Co., without stating the Christian names, or names of the persons composing the said company.
    5. Other errors apparent upon the record and proceeding.

      John Jolliffe, for plaintiff in error.

      Fishback & Swing, for defendants.
   Hitchcock, C. J.

The first error assigned in this case is, that there was no service of process upon the defendant below, the present plaintiff in error. Had this been a judgment by default, this error might have been well assigned, but the record shows an appearance of the parties by their attorneys, that a plea was filed, an issue made up, and the case, by agreement, submitted to the court. Upon the record, then, it is apparent that the plaintiff in error had a day in court, and having submitted to the jurisdiction, it is too late for him now to complain that he was not served with process. It is proper to say, in addition, that a summons was issued in the case, and service accepted by the same attorneys, who afterwards appeared in court and made defense.

The second and third errors relied upon are, that these attorneys were not authorized to accept service of process, nor to appear and defend in the action. This is not an error apparent upon the record, but is outside the record. If it be an error at all, if is an error of fact and not of law, and such assignment cannot be joined with errors in law. But if the plaintiff in error has sustained an injury by the improper interference of these attorneys, his appropriate remedy is not by writ of error to remove the cause to a superior court. Errors in fact are corrected by the court where committed. This is not, however, one of those errors in fact which could be corrected by the court in which it was committed by writ of error coram nobis. That court had the power, and upon proper showing would have set aside or vacated the judgment, on motion, and let the defendant in to defend. (3 Ohio Rep. 521.) But as the attorney for the plaintiff in error has gone out of the record to make this assignment, it is perhaps proper for the court to go so far out of the record as to say, that there is evidence among the papers in the case which fully satisfies us that the attorneys who appeared to the action in the court below, were fully authorized so to do.

The fourth error assigned is, that the plaintiffs have declared and obtained judgment by the name of Latimore, Jenkins & Co., without setting out the names of the persons constituting the company.

This is an objection which, if raised at all, should have been done by plea in abatement. But it is no valid objection. This mode of declaring-is expressly authorized by the act of February 27, 1846 — (44 Ohio L. 66.)

The plaintiff says, there are other errors in the record, but we have not been able to discover them.

The judgment of the Court of Common Pleas is affirmed with costs.


author: Spalding, J.

text:
    Charles F. Chisom v. The Directors of School District No. 8, of Beaver Creek Township, Greene County.
    On a motion in arrest of judgment for an insufficient declaration, one good common count will support the verdict, though there he special counts which are defective. In such case the intendment of law will be that the damages were assessed upon the good count, unless the contrary be made to appear by bill of exceptions.
    This is a writ of error to the Supreme Court for Greene county.
    The action below was assumpsit. The declaration contained four special counts upon a contract to teach a common school; and one common count for work and labor.
    Plea, non-assumpsit, with notice of a former recovery.

      At the March term of the court of common pleas, 1847, the cause was tried by a jury, and a verdict found for the plaintiff, in the following words: “ We, the jury, do say that the said defendants did assume and promise, in manner and form as the plaintiff has declared against them, and do assess the damages of said plaintiff at thirty-six dollars and eighty-three cents.”
    A motion in arrest of judgment, was made for the following reasons :
    1. The declaration contains no averment that the plaintiff had obtained a certificate of qualifications from the board of school examiners.
    2. The declaration is bad in substance.
    This motion was overruled by the court, and judgment rendered upon the verdict. To reverse this judgment, the directors prosecuted their writ of error.
    The errors assigned, were, first, that judgment should have been rendered for the defendant and not for the plaintiff. Second, that the court overruled the motion in arrest of judgment.
    The supreme court on the circuit at their June term, 1849, reversed the judgment on the ground that the declaration was bad, for the want of an averment that Chisom had obtained a certificate of qualifications as a school teacher.
    To reverse this last judgment, the present writ is prosecuted.

      R. F. Howard, for plaintiff in error.

      William Ellsberry, for defendants.
   Spalding, J.

The record, in this case, presents the identical question settled by this court, in Johnson v. Mullin, 12 Ohio Rep. 10. “ If the declaration contains a good count among defective counts, the court, on error, will intend that the verdict was well taken on the good count, unless the record shows it was rendered upon those that were defect ive.” However much the court might hesitate in sustaining the judgment of the common pleas, if the motion in arrest could be confined to the four special counts in plaintiff’s declaration, yet, finding the verdict supported by the common count for work and labor, we deem it unnecessary to inquire further.

Eor aught that appears from the record, the evidence was applicable to, and the damages were computed upon, that count.

The judgment of the court on the circuit must be reversed.