#### DOUGLASS v. KENTON.

May 30, 1835.

*Rule to show cause why the rule of reference should not be stricken off.*

When a cause is arbitrated under the act of 1810, the jurisdiction of the court over it is not entirely divested.

The jurisdiction of the arbitrators consists merely in the power of taking cognizance of the cause Jw* *the purpose of trial.*

When the trial before the arbitrators lias been had, or when it becomes impossible, or when the arbitrators determine that they cannot or will not proceed, the court may resume *cognizance of the cause.*"Where one of the arbitrators has been qualified, but does not act, yet refuses to decline, the court will not interfere, unless the arbitrators, or a majority of them, shall finally determine that they cannot or will not proceed.

THIS cause was referred, under the act of the 20th of March 1810, to James Harper, S. M. Solomon and Abraham Okie. The *22rule was entered by the plains iff on the 8th clay of November 1834. At (he day appointed for the mee!mg of the arbitrators, December 4th, 1S34, two of them, air Solomon and Mr Okie, met and were duly qualified, and the parties being piescm, they adjourned on account of the absence of Sir iltirper. The came was continued by successive adjournments, till the 10th of April 1835, at which day Mr Harper appeared and was sworn, but, Mr Okie being absent, the cause was again adjourned to the 2-JUi of April, at which day Mr Solomon met the panic-, and, with their consent, adjourned to a day which is still future, Shortly previous to the meeting of die Kith of April, Mr Okie com eyed mío; ¡nation to his colleagues, that, from the state of his health, he could not possibly attend to the casein any reasonable time, ¡fever, and he derired tobe cxcu.-ed from any further consideration of the matter. To this request, of Mr Okie, the defendant refused to consent ; the plaint ill then tequested Mr Okie to decline, and refuse to act as an uibiiiator; but to this Mr Okie would not cement, believing ihat ho could not with propriety doit, after having bee;; swoiu *to try ¡he wathr in variance.*The plaintiff thereupon applied to Üu-, court, end obtained this rule to show cause.

*Oak ford*and *TH^hman,*for phd'ithk

*G. M. JVharhn*and *P. A. Bion.n,*h, (VOidant.

The op,¡¡lion of the Court \\a- ik'ivere i by

JoNES, J.

(aíArsooiug fací-). — The rule is resisted by the defendant on 1 wo ground 3⁄8

1. This a,mt he no power to b,le¡ íV-r-w in.i-much ns the jurisdiction of tiro cause is now ve ; ul in the m bh ra‘ore,

2. Supposing tins cuoai to p)s.-ess ihai power, the case is not such os calk for its interference.

If the effect of the tub, and of the pioew'ding- had under it, is to divest this court entirely of ite jut ¡-diction <f the cause, it is very clear that any order v. Inch v.e may make n> it, would be irregular and void: it is neces-ary, thcieibiv, to inquire whether such is really their effect.

It certainly was not the object of the “ act to regulate arbitrators” to deprive tire com is of tiie juri-dic!ion which they had previously exercised ; its cl tief purpose was to facilitate the trial of causes, *23and if she effect of it is to divest the courts of their jurisdiction and transfer it to arbitrators, it is inciden!al, not designed.

It is frequently stud, however, that arbitrators have *jurisdiction;*that after their jurisdiction has attached, *the cause is out of court;*that the court cannot regulate or in any way interfere with the arbitrators while the cause is before them, nor inquire into the regularity of iheir proceedings after an award made. . The arbitrators are said to be judges of law as well as of fact; and such was the argument of the defendant in this case.

But we apprehend that the jurisdiction possessed by arbitrators consists merely in the power of taking cognizance of the cause for the purpose of trial, It is not, that attribute of a court, of record which comprises all the powers necessary to the complete administration of justice: in other words, the courts possess jurisdiction in the full and proper sense of t lie word; arbitrators on the contrary, have only an inferior kind of jurisdiction, which is nothing more than the power to lake cognizance of causes for the purpose of trial. The former includes the latter, they generally exist together, and in one and the same tribunal ; but the latter may be suspended or transferred without divesting the former. The judiciary arrangements of England supply many illustrations of this distinction. *Com. Dig., tit.*Courts, jP. 2, *Conusance of Pleas.*We apply it to the act and to the case under consideration. This court still has jurisdiction of this cause ; but the power of the court to try the cause is suspended by force of the act, so far as is necessary for the exercise of the power or jurisdiction conferred by the act upon the arbitrators, and no further. The residue of jurisdiction remains in the court. When, therefore, the trial of the matters in variance has been had, or when it becomes impossible, or when the arbitrators shall determine that they cannot or will not, proceed to exercise the power-vested in them by the act, this court may resume their cognizance of the cause, and proceed to final judgment and execution in like manner as if no rule of reference had been entered.

The power of the arbitrators is confined to one specified object, viz. the trial of the matters in variance. They have no power to terminate the cause without trial, nor to prevent the determination of the cause by a tria!. Tire terms of the act justify this interpretation, The courts retain all their original jurisdiction for the commencement of actions. They exercise also an appellate jurisdiction after an award. Tire effect, of an appeal is to restore to the courts *24the power of cognizance, which they have by virtue of the original writ.

The award (which the act also denominates a judgment) is executed bv the process of the court. It may be removed by a writ of error directed to the judges of the court, and the writ, when issued for that pm pose, is made in the common form. If reversed, a *venire*may be awarded by the supreme coon, returnable before the judges of the court in winch the action was commenced; and even while the cause is said to be out of court and in the jurisdiction of the arbitrators, it is *dejiGuiiiis Ufe: a nlc mlciid in ionrt.*The system, therefore, is interpolated iv.vuir; the original pmces? (or. in case the plaintilf enter? a rule of icf-rcnef. leive-m the d druihoiO and the final process or ermcn1 :on, T > a ¡node ul trial -irii-.i 'tied for the trial by jurv, and c1! the powers and authmiue? :mphed ir. the idea of jurisdiction, widen are not necessary to a trial in the manner appointed by this act, or incident to it, remain in the court, and may be exercised by the court for the advancement of justice.

These observuions suggest the conclusion which we have formed upon the second pot.lion taken by the defendant, viz.

That the case is not such as calls for the interference of the court.

The trial of this cause by the arbitrators has not become impossible. If, for example, all the arbitrators appointed in a cause should die, it would be restored by act of law, and the suggestion of the fact upon the record only would be necessary. Nor have the arbitrators refused to pmcitod; but they are in doubt, it appears, how they should ptoceed, Tbi- ¡- a m.U’er of which they are the judges. We have no jvwei to do '<‘t them : 1 ut when they, or a majority of them, shall fine b y den < "hie that they will not proceed, orthatthey cannot proceeil to. <*v ihi mMtomin variance, it will be proper for this coint to it’?un e <be canse upon <he principle before stated.

On the second poritTu taxeu by the defendant, this rule is discharged.

Rule discharged.