authorized to choose an umpire, but drew lots which of them should choose him. But it has been held enough that each arbitrator named an umpire, and lots were drawn to decide which of these two should be taken, because it might be considered that both of these men were agreed upon. And if an umpire be appointed by lot, or otherwise irregularly, if the parties agree to the appointment, and confirm it expressly, or impliedly by attending before him, with a full knowledge of the manner of the appointment, this covers the irregularity.

SECTION II.

THE REVOCATION OF A SUBMISSION TO ARBITRATORS.

It is an ancient and well established rule, that either party may revoke his submission at any time before the award is made; and by this revocation render the submission wholly ineffectual, and of course take from the arbitrators all power of making a binding award.

award is made.

And, generally, this power exists until the

In this country, our courts have always excepted from this rule submissions made by order or rule of court; for a kind of jurisdiction is held to attach to the arbitrators, and the submission is quite irrevocable, except for such cases as make it necessarily inoperative.

There is a strong reason why a submission by order of court, or before a magistrate, should be preferred where it can be had, from the fact above stated, that the law permits any party who finds an award is going against him to revoke his submission or reference when he will, before the award is made; provided the award was only by agreement out of court, or not before a magistrate. In some of our 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.

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 occur. 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.

(86.)

Simple Agreement to Refer.

Know all Men, That we,

of

of

and 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.

In Witness Whereof, &c.

(87.)

(Signatures.)

Arbitration Bond. One or more Arbitrators.

Know all Men by these Presents, That I, am held and firmly bound unto of

(one of the parties)

(the other party) in the sum dollars, lawful money of the United States of America, (the other party) executors, administrators,

to be paid to the said 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

thousand nine hundred and

day of

one

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

decision of

arbitrator as well by and on the part and behalf of, the said

as of the said

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) 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 of

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.

Signed, Sealed, and Delivered in Presence of

(Signature.) (Seal.)

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

(88.)

Award of Arbitrators.

To all to whom these Presents shall come, We

(names of the arb trators), 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 unte the other, and bearing date the nine hundred and

day of

one thousan

the arbitrator

more fully appears. Now, therefore, know ye, That we 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)

this

In Witness Whereof, day of

In Presence of

have hereunto subscribed these presents, one thousand nine 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