#### JOEL TYSON *vs.*JAMES ROBINSON.

A party, whose cause has been referred to arbitrators by a rule of court cannot, in this State, revoke the arbitration, without the permission of the who made the order.

June 1843

Independent of an order of the court, 'the rule of reference can only be revoked by an act of law, as by the death of either of the parties, or by the marriage of a feme sole, one of the parties.

Unless a rule of reference he expressly limited in its duration, it continues in force until it be executed, or revoked by act of law, or discharged by the court.

The cases of *Cain*v *Pullum,*1 Hay. 173, *Simpson*v *JWcBee.,*3 Dev. 531* *Waugh*v *Mitchell,*1 Dev, & Bat. Bq. 510. *Duncan*v *Duncan,*1 Ircd. 466, cited and approved.

Appeal from the Superior Court of Law of Anson County, at Spring Term, 1843, his Honor Judge Settle presiding.

This was an action on the case instituted in the Superior Court of Law of Anson county, the writ being returnable to March Term, 1841, when the following rule was entered upon the appearance docket, to wit, “ Referred to John A* ■McRae and A. D. Boggan and their award to be a rule of court.” And at Spring Term, 1843, the plaintiff moved that an award filed by the said referees, pursuant to the preceding rule, might be made a rule of court, and that judgment might be rendered accordingly. The defendant objected to having the said award made a rule, and moved that the same might be altogether set aside, upon the ground that the authority given to the arbitrators by the rule entered at Spring Term, .1841, had expired before the said award was made, and that the said authority had been duly revoked. And these two motions coming on to be heard, it *334appeared in evidence, that the session of Anson Superior Court, at Fall Term, 1S4I, occupied two weeks — that, before or during the first week of the said term, the arbitrators had several ‘meetings, with the parties before them, and had proceeded so far in making a rough statement of the accounts between the parties, as that each party had acquired some general idea of what would probably be the ultimate award, but the arbitrators filed no award until the latter part of the second week. On the 20th of September, 1841, the arbitrators being then in • session, the defendant came with counsel, and, through his counsel, demanded the authority under which the arbitrators were acting, when a copy of the order of Spring Term, 1841, duly certified by the clerk of Anson Superior Court, was produced. The counsel for the defendant thereupon wrote upon the same piece of paper, beneath .the said certified copy, as follows, to wit, “ Messrs. McRae and Boggan. I hereby notify 37-011 that I withdraw ■my consent to the reference in the above case, and decline submitting to any award that you may make, and shall move the court to strike out the order *of*reference, and let the cause stand for trial. Sept 20th, 1841,” which writing was then signed by the defendant. The arbitrators then suspended proceedings, and, the court being then in session, a motion was made by the defendant’s counsel, in conformity to the above notice, that the said order might be stricken out and .the cause stand for trial ; which motion being overruled, the.arbitrators, under the advice of the plaintiff’s counsel, proceeded, to consider further of their award, but, before doing so, invited the defendant to attend them, which he ac~. cordingly did, but there was no positive evidence that he said any thing during their deliberations. The arbitrators then made their award, which was filed during the term. Previous to the filing of the said- award, the defendant -asked leave to enter on the docket the following, to. vv.it,. 1!Rulo of reference withdrawn by Robinson. In this case the defendant Robinson comes into court, and notifies McRae and Bog-gan, who are in open court, not to proceed with the reference, and that he revokes any authority heretofore given them and withdraws his consent to the reference made. It *335being admitted that no award was yet made, the court granted leave, but refused to rescind the order of Spring Term, 1841, this being. Tuesday, 2d week of this term, Sept-. 1841.” The arbitrators having afterwards filed their award, the following entry was made, 1! Award filed by Boggan and Mc-Rae, Sept. Term, 184L.” The case was not regularly reached either at Spring or Fall Term, 1842, but at both terms ineffectual- attempts were made to have the matter, considered out of its course, but no final disposition was-made until the present term, when the court, upon the foregoing facts, ordered the award to be made a rule of court, and rendered judgment accordingly. From this judgment the defendant appealed-

*Strange*for the plaintiff,’

cited *Aston*v *George,*2 Barn'. & Aid. 395, *Cunningham*v *Howell,*1 Irod. 16. *Duncan*v *Duncan,*Ibid 416. *Carter*v *Sams,*4 Dev. & Bat. 182) *Simpson*v *«71IcBee, 2*Dev. & Bat. 227. S. C. 3 Dev. 531— Kyd on awards 19. Curtis-v *Potts,*3 Maulé &Sel. 145.

*Iredell*for the defendant,

cited *Marsh*v *Bulteel,*l Dow. & Ky. 106.. 5 Barn. & Aid. 507. *Clapham*v *Higham,*1-Bing. 87. *Aston*v *George. 2*Barn & Aid. 395. *Milne*v *Gratvix,*7 East. 608. *Skee*v *Cocean,*10 Barn. & Cressj 483.

GastoN, J1

It is insisted' on the part of the appellant that the Superior Court erred in rendering a judgment on the award, *first,*because the defendant had, before the award' made, revoked his submission to arbitration, and *secondly,*because the rule of reference, under which the arbitrators professed-to act, had expired on the first day of the term, at-which the award was returned, and the award was not in fact made until a subsequent day of the term:

Where a submission to arbitration is made by the mere' agreement of the parties, beyond question, either of the parties can revoke such submission at any time before the award made; although he may thereby render himself; liable-' *336(o an action for a breach of his agreement. Every naked authority, until an act be done under it, is in law counter-mandable by him who has granted it. And in England, where a submission to arbitration is made by the parties under a rule of court, such submission is, in like manner, revocable by either party. The court, however, may, at its discretion, attach the party so revoking for a contempt. Notwithstanding the rule purports to be an order of the court, whereby the matters in difference are referred to the final determination of the arbitrators, yet the authority of the arbitrators is considered as derived from the submission of the parties and not under the order of the court. So fully is this held, that no reference whatsoever of a cause depending shall operate to stay the proceedings of the court therein, unless in the rule it be expressed, that the parties have agreed that all proceedings in the action shall, in the meanwhile, be stayed. See Watson on arbitration 11. And when an award is duly made under a reference by rule of court and is returned to the court, no judgment is thereupon rendered, as upon a matter ascertained through the agency of the court. Anciently the successful party was left altogether to his action to enforce the performance of the award, and even now, although the court *may*grant an attachment for contempt, because of the non-performance of the award, it is a matter of pure discretion to grant such attachment or not, and in very many cases, accordingly, it is refused. See Watson *ut supra,*ch. 10, s. 1 & *2,*and the cases there cited.

. In this State, from our earliest recollection of its legal usages, an operation, in many respects essentially different, has been allowed to a reference, under an order or rule of court, of a matter pending before it to the determination of arbitrators. No such order could be be made, indeed, but by the consent of the parties, who were entitled to demand as of right the trial of their controversy according to the law of the land. But when, upon the consent of the parties, the subject matter of the cause was referred by the court, the tribunal thus constituted took cognizance of the matter referred under the authority of the court. For the time, the *337controversy was withdrawn from the court, and this drawal necessarily operated as a stay of proceedings in the court upon the cause in the meanwhile. The consent of the parties was essential to the making of the order, but, once made, the order existed *proprio vigore*and could not be annulled by the act of the parties. It might be revoked by act of law, as by the death of either of the parties, or by the marriage of a *feme sole,*one of the parties, which marriage operated as a; death of her civil rights; it might be rescinded or discharged by the court which had made the rule? and it would be discharged, as a matter of course, if both, parties wished it to be set aside. But unless so revoked or discharged, it remained in force, like every other order or rule of a court, until it was executed. And when the award was returned, unless it could be impeached for just cause, a judgment followed thereon of course, as a judgment of the court follows upon any other matter, legally ascertained by it or through the agency of its officers. This operation of the rule of reference and the practice under it have been found of great public convenience, have repeatedly received directly or indirectly the sanction of our courts, and are now too firmly rooted in our legal institutions to permit us to question the correctness of the principles, upon which they are understood to be founded. *Cain*v *Pullam,*1 Hay. 173. *Simpson v McBee,*3 Dev. 531. *Waugh v Mitchell,*1 Dev. & Bat. Eq. 510, *Duncan*v *Duncan,*1 Ired 466,

As to the other objection to the award, it would be worthy of consideration, if the rule of reference could be regarded as limited in its duration to the next term of the court, whether, for the purpose of advancing justice, the whole of that term should not be considered as constituting in law but one day. But it follows clearly from what has been already said, that, unless the rule be expressly limited in its duration, it continues in force, until it be executed, or revoked by act of law, or discharged by the court.

The court sees no error in the judgment below, and directs it to be affirmed.

Per Curiam. Judgment affirmed.