States, the statutes authorizing and regulating arbitration provide for the revocation of the submission.

It should be stated, however, that, as an agreement to submit is a valid contract, the promise of each party being the consideration for the promise of the other, a revocation of the agreement or of the submission is a breach of the contract, and the other party has his damages. And damages would generally include all the expenses the plaintiff has incurred about the submission, and all that he has lost by the revocation, in any way.

If either party exercise this power of revocation, he must give notice in some way, directly or indirectly, to the other party; and until such notice, the revocation is inoperative.

Bankruptcy or insolvency of either or both parties does not necessarily operate as a revocation, unless the terms of the agreement to refer, or the provisions of the insolvent law, required it. But the assignees acquire whatever power of revocation the bankrupt or insolvent possessed, and, generally, at least, no further power.

occur.

The death of either party before the award is made vacates the submission, if made out of court, unless that provides in terms for the continuance and procedure of the arbitration, if such an event But a submission under a rule of court is not revoked or annulled even by the death of a party. So the death or refusal or inability of an arbitrator to act would annul a submission out of court, unless provided for in the agreement; but not one under a rule of court, unless for especial reasons, satisfactory to the court, which would make an appointment of a substitute, if it saw fit to continue the reference.

It may be well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent of all the parties, have any further control over it.

If the submission provides for any method of delivering the award, this should be followed. If not, it is common for the referees to deliver the award to the prevailing party or his attorney, on payment by him of the fees of arbitration. Then the prevailing party looks to the losing party, for the whole, or a part, or none of the costs, as the award may determine.

The award should be sealed, and addressed to all the parties; and it should not be opened except in presence of all the parties, or of their attorneys, or with the consent of those absent indorsed on the award. If the submission is under a rule of court, it should be returned to court by the arbitrators, or the counsel receiving it, sealed, and opened only in court, or before the clerk, or with the written consent of parties.

The submission, or agreement to refer, may be made by exchange of Bonds, each party executing and delivering a Bond to the other party.

This would be a formal proceeding. But, as has been already said, no especial form is necessary; and often a very simple one, like that below, would suffice.

and

(86.)

Simple Agreement to Refer.

Know all Men, That we,

of

of

do hereby promise and agree, to and with each other, to submit, and do hereby submit, all questions and claims between us (or any specific question or claim, describing it) to the arbitrament and determination of (here name the arbitrators) whose decision and award shall be final, binding, and conclusive on us; (add if there are more arbitrators than one, and it is intended that they may choose an umpire) and, in case of disagreement between the said arbitrators, they may choose an umpire, whose award shall be final and conclusive; (or add, if there be more than two arbitrators) and, in case of disagreement, the decision and award of a majority of said arbitrators shall be final and conclusive.

dollars, lawful money of the United States of America, to be paid to the said (the other party) executors, administrators, or assigns; for which payment, well and truly to be made, I hereby bind myself, my heirs, executors, and administrators, firmly by these presents.

Sealed with my seal

Dated the

day of

one

thousand eight hundred and

bounden

The Condition of the above Obligation is such, That if the above shall well and truly submit to the (the referee) named, selected, and chosen arbitrator as

decision of
well by and on the part and behalf of, the said
the said

as of

between whom a controversy exists, to hear all the proofs and allegations of the parties of and concerning (here set forth the claims or questions referred)

of

and all matters relating thereto, and that the award of the said arbitrator be made in writing, subscribed by him (or them) and attested by a subscribing witness, ready to be delivered to the said parties on or before the day next. But before proceeding to take any testimony therein, the arbitrator shall be sworn, "faithfully and fairly to hear and examine the matters in controversy between the parties to these presents, and to make a just award according to the best of his (or their) understanding." And the said parties to these presents do hereby agree, that judgment in the case (in question)

shall be rendered upon the award which may be made pursuant to this submission, to the end that all matters in controversy in that behalf, between them, shall be finally concluded. Then the above obligation to be void, otherwise to remain in full force and virtue.

Sealed and Delivered in Presence of

(Signature.) (Seal.)

[To make the contract complete, the other party should execute and deliver a counterpart to this Bond.]

(88.)

Award of Arbitrators.

To all to whom these Presents shall Come, We (names of the arbitrators) to whom was submitted as arbitrators the matters in controversy existing between as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date the one thousand eight hundred and

more fully appears.

day of

Now, therefore, know ye, That we the arbitrators mentioned in the said bonds having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing; that is to say, the said (here follows the award) In Witness Whereof, day of

this

In the Presence of

have hereunto subscribed these presents, one thousand eight hundred and

(Signatures.)

CHAPTER XX.

THE CARRIAGE OF GOODS AND PASSENGERS.

SECTION I.

A PRIVATE CARRIER.

ONE who carries goods for another is either a private carrier or a common carrier.

A private carrier is one who carries for others once, or sometimes, but who does not pursue the business of carrying as his usual and professed occupation. The contract between him and the owner of the goods which he carries is one of service, and is governed by the ordinary rules of law. Each party is bound to perform his share of the contract. Such a carrier must receive, care for, carry, and deliver the goods, in such wise as he bargains to do.

If he carries the goods for hire, whether actually paid or due, he is bound to use ordinary diligence and care; by which the law means such care as a man of ordinary capacity would take of his own property under similar circumstances. If any loss or injury occur to the goods while in his charge, from the want of such care or diligence on his part, he is responsible. But if the loss be chargeable as much to the fault of the owner as of the carrier, he is not liable. The owner must show the want of care or diligence on the part of the private carrier, to make him liable; but slight evidence tending that way would suffice to throw upon him the burden of accounting satisfactorily for the loss. And if there is such negligence on the part of the carrier, or of a servant for whom he is responsible, the carrier is liable, although the loss be caused primarily by a defect in the thing carried.

If he carries the goods without any compensation, paid or promised, he is, in the language of the law, a gratuitous bailee, or mandatary: he is now bound only to slight care; which is such care as

every person, not insane or fatuous, would take of his own property. For the want of this care, which would be gross negligence, he is responsible, but not for ordinary negligence.

We sum up what may be said of the private carrier in the remark, that the general rules which regulate contracts and mutual obligations apply to the duties and the rights of a private carrier, with little or no qualification. But it is otherwise with a common carrier.

SECTION II.

THE COMMON CARRIER.

THE law in relation to the rights, the duties, and the responsibilities of a common carrier is quite peculiar. The reasons for it are discernible, but it rests mainly upon established usage and custom. And, as these usages have changed considerably in modern times, this law has undergone important modifications.

He is a common carrier "who undertakes, for hire, to transport the goods of such as choose to employ him from some known and definite place or places to other known and definite place or places." He is one who undertakes the carriage of goods as a business; and it is mainly this which distinguishes him from the private carrier.

The rights and responsibilities of the common carrier may be briefly stated thus: He is bound to take the goods of all who offer, if he be a carrier of goods, and the persons of all who offer, if he be a carrier of passengers; and to take due care and make due transport and delivery of them. He has a lien on the goods which he carries, and on the baggage of passengers, for his compensation. He is liable for all loss or injury to the goods under his charge, although wholly free from negligence, unless the loss happens from the act of God, or from the public enemy. These three rules will be considered in the next section.

The important thing to be remembered is, that a private carrier is not liable for injury to persons, or loss of or injury to goods, without fault or negligence on his part; but a common carrier is liable, without any fault or negligence on his part.