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and that the defendant has failed to perform it; in which case, he will recover damages to the amount of the injury he has sustained by the non-performance of the award, or he may sue upon the award. In these cases of statutory arbitrations, as well as those of the common law kind, it seems that either party may, at any time before the award is actually made, revoke the authority given to the arbitrators, and thereby defeat the award.2 Such revocation, however, operates as a breach of the condition of the arbitration bond; and an action may be brought upon the same. If the submission be by writing, the revocation must also be by writing. If the submission is not in writing, which can only occur in a common law arbitration, as the statute requires the submission to be in writing, any written or verbal declaration to the arbitrators, declaring a revocation, will have that effect.

§ 100. Common law arbitrations, in what cases may be had. All men may settle, if they can, their matters of difference in a friendly way. Such settlement may be by themselves; and then we call it simply a settlement; or they may do it through the intervention of others, and then it is called an award. Now, at the common law, such settlements are held binding, unless in cases of fraud or mistake; and whether they are made by the parties themselves, or by friends mutually chosen by them, the effect is precisely the same; for the rule in such case is that what a man does by another, he does by himself. In such cases, the parties having chosen others to settle their difficulties, those others are the mere agents of the parties, and as such agents, called here arbitrators, they have power to bind their principals, according to the well-known rules of the law of principal and agent. As Blackstone has observed, experience having shown the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost impossible to adjust on a trial at law, the courts of justice are strongly inclined to favor such a mode of making peace between persons who disagree as to their mutual dealings; and the same remark applies equally to matters of mere tort, unconnected with contract. If one's neighbor has

1 Dickerson v. Tyner, 4 Blkf. 253; Coats . Kigell, 14 Ind. 179.

* 10 B. & C. 483.

16 J. R. 205.

4 Morse on Arb. and Award, 10-12. 53 Blacks. 17.

trespassed upon him, or done him any wrong, it often saves both much expense and trouble by submitting the matter to the decision of other disinterested neighbors, in whom both have confidence, and by abiding by such decision. The common law, in general, holds such decisions as valid and binding on the parties; and these decisions are what are meant by common law arbitrations. Whatever may be said however, in favor of arbitration as an amicable mode of settling disputes, it cannot be denied that the profession prefer settling hostile controversies by proceedings in court, as a method more convenient as well as more satisfactory.

§ 101. Submission, how made. The modes of submitting these matters of dispute to a common law arbitration will, of course, vary according to the agreement in each particular case. The submission may be verbally made, or it may be by writing, and under bonds as in the case of statutory arbitrations. It will be valid either way;1 and it may be laid down as generally true that, whether the submission is by word or writing, if it amounts to an agreement to abide by the decision of the arbitrators, and is sufficiently explicit as to the matter, in controversy, to be submitted, and if a proper award be made pursuant to the submission, it will bind all parties. The award may be by parol, unless the agreement to submit requires that it should be in writing, in all cases in which the thing in dispute may, by the common law, be passed without a writing.

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$102. Requisites of a good common law award. The following are the requisites of a good award in an arbitration at the common law: 1. It must be made according to the terms of the submission. 2. It ought to be certain. A reasonable degree of certainty, however, is all that is required. The certainty must be such that it can be fairly ascertained from the terms of the award what is intended to be the decision of the arbitrators. 3. It ought to be equal and mutually satisfactory. According to Bacon's Abridgment, title Award, the meaning of this rule is

1 Bac. A. Title Arb. and Award, B.; Miller v. Goodwine, 29 Ind. 46; Morse on Arb. and Award, 50 et seq.

Evans v. McKinsen, 6 Litt. 264; Wells v. Lane, 15 Wend. 99; Carson v.

Earlywine, 14 Ind. 256; Miller v. Goodwine, 29 id. 47.

3 Morse on Arb. and Award, 408. 4 Id.

as follows: "That all controversies being between two parties, that which is awarded to be done to one must be an advantage to both, so as to end the controversy, and discharge one, as well as give satisfaction to the other." It is said that this rule is not now so strictly applied as formerly. 4. The award must be of a thing lawful and possible. Of course, the act awarded to be done must be a lawful act; and it is equally plain that it should not be impossible.1 5. It must be final. By this rule is meant that it must be such an award as operates finally, and not merely temporarily, to settle the controversy between the parties.2

§ 103. Common law award, how enforced. As these common law awards can not be made a rule of court, the only remedy to enforce them is by an action on the agreement to submit the matter to arbitrament, setting forth the award made pursuant to it, and showing wherein the defendant has violated his agreement. In such a suit, if the submission was by parol, the fact of the verbal agreement must be charged as it was made; and if it was a written agreement, it must be made the foundation of the action. In both cases, the complaint must show what was awarded, and the defendant's failure to perform. But the action may be said rather to be upon the award to which the agreement binds the parties and makes it the foundation of the action.3

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CHAPTER XIII.

APPEAL AND REVIEW.

§ 1. Introductory remarks upon review of judgments by appeal and writ of error before the code.

2. Abolition of writs of error, the adoption of appeals, cases in which an appeal to the supreme court will lie.

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4. The several modes of obtaining an appeal to the supreme court from the judgments or orders of the circuit or superior courts.

5. The record of the cause

6.

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the making and the certification of the transcript of the same for the supreme court.

Of the preparation of the transcripts for filing and submission in an appeal. 7. Notice of the pendency of an appeal, how issued and served.

8. Assignment of errors and joinder.

9. The answer or joinder in error of the appellee, of the settlement of issues of fact and the assignment of cross errors.

10. An amicable mode of perfecting appeals, assignments, error, joinder and

submission.

11. Of the terms of the supreme court.

12. When appeals stand for trial.

13. Of motions in appeals pending in the supreme court.

14. Call of the docket, submissions, dismissal, continuance of causes.

15. Of the argument of cases in the supreme court.

16. Supersedeas, how and when granted, how taken and approved.

17. The effect of a supersedeas in a case appealed to the supreme court.

18. Of the distribution and decision of causes, and the order of the same. 19. Of the costs and damages in the supreme court, and how the same are collected.

20. Appeals from the superior court-some general remarks upon the subject of the organization of courts.

21. Of the appeal from the special to the general term.

22. Appeal from the general term of the superior court to the supreme court. 23. Notice of decision-petition for a rehearing, when must be filed - what it must contain, and how disposed of.

24. Of the certification of causes from the supreme court to the court below. 25. The action of the court below upon the transcript of the opinion and judgment of the court.

26. Of the effect of the judgment of the supreme court on appeal, upon the parties and the subject matter of the appeal.

27. Of the effect of the decisions of the supreme court of the state as authority.

$28. Review of judgments in the court in which they are rendered.

29. Who entitled to have a review, and within what time the same may be

brought.

30. The first ground of review, its nature and character.

31. Proceedings to review judgments for material new matter discovered since the trial.

32. Of the complaint in a proceeding for a review.

33. Of the answer in a proceeding to review.

34. Of trial and judgment in proceedings for a review.

35. Of the stay of proceedings in a complaint for a review. 36. An explanation.

§1. Introductory remarks upon review of judgments by appeal and writ of error before the code. At the common law, the usual mode of review of the final judgments of courts of record, in actions at law, was by writ of error, which was, in England, a writ issued out of chancery, containing a commission to the appellate court, and a mandate to the trial court, commanding the latter to send up a transcript of its record to the appellate court, so that the latter might review the rulings and correct whatever errors appeared; and the commission authorized the appellate court to act in the case. The appellate court, having received the record with the assignment of errors of the plaintiff in error, examined the record and reversed or affirmed the judgment, as the case might be, and remanded the same to the lower court with a mandate to it, to carry out the judgment of the appellate court.1 This practice, while it is not proper to examine it in detail here, still prevails in theory in the federal court, though there the writ always issued from the supreme court, directly, to the circuit court, till changed in the modern practice, but the writ, though in theory and in form, issued from the supreme court and tested in the name of the chief justice, yet in practice is issued by the clerk of the circuit court, and with a citation and a transcript of the record, as a return to the writ to which it is attached, is filed in the clerk's office of the supreme court. But chancery cases were always reviewed by appeal, which is an application directly to the court in which the judgment is rendered, for an appeal to an appellate court, and this practice prevails in equity to the federal courts yet. The distinction which mainly marked the two

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2 Phillips' Pr. in S. C. 51-2.

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