2.
They are voluntary or compulsory. The voluntary are, 1. Those made by
mutual consent, in which the parties select arbitrators, and bind
themselves by bond abide by their decision; these are made without any
rule of court. 3 Bl. Com. 16.
3.
– 2. Those which are made in a cause depending in court, by a rule of
court, before trial; these are arbitrators at common law, and the award
is enforced by attachment. Kyd on Awards, 21.
4.
– 3. Those which are made by virtue of the statute, 9 & l0 Will.
III., c. 15, by which it is agreed to refer a matter in dispute not then
in court, to arbitrators, and agree that the submission be made a rule
of court, which is enforced as if it had been made a rule of court; Kyd
on Aw. 22; there are two other voluntary arbitrations which are peculiar
to Pennsylvania.
5.
– 4. The first of these is the arbitration under the act of June 16,
1836, which provides that the parties to, any suit may consent to a rule
of court for referring all matters of fact in controversy to referees,
reserving all matters of law for the decision of the court, and the
report of the referees shall have the effect of a special verdict, which
is to be proceeded upon by the court as a special verdict, and either
party may have a writ of error to the judgment entered thereupon
6.
– 5. Those by virtue of the act of 1806, which authorizes " any person
or persons desirous of settling any dispute or controversy, by
themselves, their agents or attorneys, to enter into an agreement in
writing, or refer such dispute or controversy to certain persons to be
by them mutually chosen; and it shall be the duty of the referees to
make out an award and deliver20it to the party in whose favor it shall
be made, together with the written agreement entered into by the
parties; and it shall be the duty of the prothonotary, on the affidavit
of a subscribing witness to the agreement, that it was duly executed by
the parties, to file the same in Iiis office; and on the agreement being
so filed as aforesaid, he shall enter the award on record, which shall
be as available in law as an award made under a reference issued by the
court, or entered on the docket by the parties."
7.
Compulsory arbitrations are perhaps confined to Pennsylvania. Either
party in a civil suit or action,, or his attorney, may enter at the
prothonotary's office a rule of reference, wherein be shall declare his
determination to have arbitrators chosen, on a day certain to be
mentioned therein, not exceeding thirty days, for the trial of all
matters in variance in the suit between the parties. A copy of this rule
is served on the opposite party. On the day. appointed they meet at the
prothonotary's, and endeavor to agree upon arbitrators; if they cannot,
the prothonotary makes out a list on whicb are inscribed the names of a
number of citizens, and the parties alternately strike each one of them
from the list, beginning with the plaintiff, until there are but the
number agreed upon or fixed by the prothonotary left, who are to be the
arbitrators; a time of meeting is then agreed upon or appointed by the
prothonotary, when the parties cannot agree, – at which time the
arbitrators, after being sworn or affirm and equitably to try all
matters in variance submitted to them, proceed to bear and decide the
case; their award is filed in the office of the prothonotary, and has
the effect of a judgment, subject, however, to appeal, which may be
entered at any time within twenty days after the filing of such award.
Act of 16th June, 1836, Pamphl. p. 715.
8.
This is somewhat similar to the arbitrations of the Romans; there the
praetor selected from a list Of citizens made for the purpose, one or
more persons, who were authorized to decide all suits submitted to them,
and which had been brought before him; the authority which the proctor
gave them conferred on them a public character and their judgments were
without appeal Toull. Dr. Civ. Fr. liv. 3, t. 3, ch. 4, n. 820. See
generally, Kyd on Awards; Caldwel on Arbitrations; Bac. Ab. h. t.; 1
Salk. R. 69, 70-75; 2 Saund. R. 133, n 7; 2 Sell. Pr. 241; Doct. PI. 96;
3 Vin. Ab. 40; 3 Bouv. Inst. n. 2482.
ARBITRATOR.
A private extraordinary judge chosen by the parties who have a matter
in dispute, invested with power to decide the same. Arbitrators are so
called because they have generally an arbitrary power, there being in
common no appeal from their sentences, which are called awards. Vide
Caldw. on Arb. Index,. h. t.; Kyd on Awards, Index, h. t. 3 Bouv. Inst.
n. 2491.
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