And this is particularly so where the reference is, by the submission, made a rule of Court under the Acts of Assembly. Equity will not, in cases of this character, interfere to cancel the submission, but will leave the parties to their remedy under the statutes, viz., by exceptions.

September, Mr. Johnson presented his written | 497), Shisler v. Keavy (25 Sm. 79), and Paist view of the case, the main points of which were v. Caldwell (25 Sm. 161), is that the power of not concurred in by the other arbitrators. Seve- revocation does not exist. ral other meetings were held without any agreement having been reached, when it was finally concluded that a majority award, substantially similar to the draft submitted in the preceding June, should be presented by Messrs. Bullitt and Rollins, and a minority report by Mr. Johnson. These papers, when finally prepared, were to be filed, or otherwise disposed of. Some time in November, Mr. Bullitt's draft was re-copied, with some alterations as to figures, and signed by Mr. Rollins and himself. This was a few days before the notice of revocation of their authority was served upon them.

On the 24th of November, a notice was served upon each of the arbitrators by Mr. Huston revoking the agreement of submission. The meeting at which the final award was signed was held two or three days after this notice of revocation had been received. Mr. Johnson's minority report had been in Mr. Bullitt's possession some days before this time. Mr. Bullitt had no doubt that the paper first signed by himself and Mr. Rollins was signed before they had notice of the revocation, but said that it was not used as the final award; some of its figures were altered, and the language changed in places in the award finally made, but no substantial changes were made in the findings. Notices of a meeting to

be held on the 28th of November were dictated by Mr. Bullitt to his stenographer on Nov. 23, which, through neglect of the latter, were not delivered until Nov. 26, two days after the date of the alleged revocation. A final meeting, of which all the parties in interest were notified, was held on Dec. 1, at which the award, as filed, was for the first time made public.

It further appeared from the testimony, that Mr. Huston had been informed by Mr. Johnson, the arbitrator appointed by him, of the status of the case prior to his giving the notice revoking

the submission.

E. Spencer Miller and George M. Dallas, showed cause.

Pope v. Duncannon, 9 Sim. 177, and 16 Eng. Ch Rep., Dunlap's Ed., decided upon the statute o 9 and 10 Wm. III., which was reported as in force in this State.

But even if revocation were allowable, it has come too late. The decision of the referees had been made and signed before the revocation; changes in the opinions only. the re-signing resulted wholly from unsubstantial

Oxley v. Oiden, 1 D. 453.
Pollock v. Hall, 3 Y. 42.

Mr. Huston, in revoking the submission, acted upon information from the dissenting arbitrator that the award was against him. This is of itself sufficient to defeat the attempted revocation.

Robinson v. Bickley, 6 Cas. 384.

Affidavits to the submission having been filed with the award, give to the proceedings the same effect, for every purpose now involved, as if they had been filed and entered at the date of the agreement of submission.

Massey v. Thomas, 6 Bin. 333.
Wall v. Fife, I Wr. 394.

A. Sydney Biddle and Geo. W. Biddle (with them F. C. Brewster), contra.

Parties cannot, by contract, oust the ordinary
Courts of their jurisdiction.

Scott v. Avery, 5 H. of L. Cases, 846.
Monongahela Co. v. Fenlon, 4 W. & S. 211.

Is the contract in this case a release of all ex

isting liabilities, and the taking in lieu thereof the new one to be named by third parties, or is it that the authorized agents of the parties shall settle disputes? If the former, it comes within the principle of McGheehen v. Duffield (5 Barr, 497), and Paist v. Caldwell (25 Sm. 161), where valuable rights were released on both sides, and revocation consequently prohibited. The reason of this is obvious. All that remains after the In former times, when Courts were unfavor-execution of the agreement is a new obligation, able to references, it was the rule, perhaps, that all submissions might be revoked by either party at any time before award, and this upon the ground that all naked powers might be revoked; but the policy of the law upon this subject has changed, and this rule has been very materially modified and restricted. Where, as in this case, the submission is more than a naked power, and amounts to a contract, for which there is a valuable consideration in the time, labor, and money expended, as well as in the delay in the proceedings at law already instituted, etc., the rule established by McGheehen v. Duffield (5 Barr,

and the agreement, if properly executed, by which the original rights have been lost, cannot be rescinded, because it is a conveyance, and the original obligations to the releasor have terminated and passed out of existence by the act of conveyance. His only right then is to enforce from the other party the consideration provided in the contract. This is the real explanation of that class of cases in which it is said that a contract cannot be revoked. The question then is no longer one of ability to terminate an agency, but of power to reinstate one's self in statu quo after conveyance made.

The submission in this case is not of this char- reference should be made a rule of Court, and acter. There is no allusion made in it to the that the award of the referees, or any two of equity suit then pending, and there is no release them, should be final, and without the right of of any existing rights. Mr. Huston's position is exception or appeal. There was no suit pendprecisely similar to that of a party to a written ing. The reference was not made a rule of contract, upon which there had been a breach by Court by filing the agreement until after an the other party, in which there was an independ- award was made, and there does not seem to ent covenant to arbitrate, and falls within the have been any other consideration than the principle of the cases referred to in Dawson v. mutual agreement to refer. Lord Otho Fitzgerald (L. R. 1 Exch. Div. 257). There JESSEL, M. R., stated the law to be that a defence to an action on an agreement to arbitrate on the ground that no arbitration had occurred, could only be made in two cases: First, where the action can only be brought for the sum named by the arbitrator; secondly, where it is agreed that no action shall be brought until there has been an arbitration, or that arbitration shall be a condition precedent to the right of action. In all other cases where there is, first, a covenant to pay; and, secondly, a covenant to refer, the covenants are distinct and collateral, and the plaintiff may sue on the first.

The rule here taken is a proper one. It is not to strike off the award qua award, but to remove from the records of the Court an impertinent paper filed without authority, and is in no sense an appeal to the equity powers of the Court.

The Act of 1836 allows exceptions to be made to awards for the following causes only: viz., misbehavior of the arbitrators; that they committed a plain mistake of law or fact, or that the award was procured by corruption or other undue means (Purd. Dig., page 78). Hence revocation could not be taken advantage of in that

way.

Again, there is a fatal defect in the proceedings in this that the arbitrators were never sworn or affirmed as required by law.

The first question that arises is, whether either of the parties to such an agreement can revoke it before the referees have agreed upon their award. The case of Johnson v. Andress (5 Phila. Rep. 8), expressly decides that they can. was approved in Keavy v. Shisler (8 Phila. Rep. 54, afterwards affirmed in the Supreme Court; 25 P. F. Smith, 79.)

That case

We can find no Pennsylvania case that overrules or shakes the authority of Johnson v. Andress; but can find many where the reasoning and dicta of Judges sustain it. Cases where there were other considerations than the naked agreement are not in point. We decide that this agreement was revocable before the award was agreed upon.

Many careful readings of the testimony leave us in doubt as to whether an award was agreed upon before the revocation by plaintiff. There are some expressions in the evidence sustaining the affirmative and others the negative of this question. The award must have been agreed upon at a meeting of the referees. Does the evidence establish that satisfactorily? It is clear that radical differences were apparent in July, 1876, and that the majority at that time put their views in writing. One of the arbitrators, after alluding to meetings in September, says: "We finally concluded that Mr. Rollins and myself would sign a report substantially such as I had submitted in June, and that Mr. Johnson would make a separate report." Again, he says, on page 43: "It was understood that we would prepare a majority report, and he would prepare a minority report." The fact that at a unite in a report does not establish that an award meeting it was agreed that the majority should was agreed upon. Such an agreement clearly establishes the fact that the principles that were Bickley, supra, was an entirely different case; to guide in the award were agreed upon; but an there an award had been drawn up and signed award is the exact result deduced from princiby two of the arbitrators, under circumstances which obviated the necessity of obtaining the sig-ples. The law upon this point is clearly enunciated in Johnson v. Andress, supra. "Nor Can the award be sustained on the ground that the arbitrators had agreed on what terms or principles the award should be made before the revoaction was communicated to them. An agreement to agree is obviously not a final agreement, particularly when, as here, it merely ascertains or fixes principles or data, and does not settle or arrive at conclusions or amounts."

Acts 21 March, 1806, P. L. 1805-6, p. 559. Acts 20 March, 1810, P. L. 1809-10, p. 145. Acts 16 June, 1836, P. L. 1835-36, p. 715. The fact that the arbitrators had agreed on what terms or principles the award should be made, before the revocation was communicated to them, will not sustain the award. The agreement of the majority was not final, and did not settle conclusions or amounts. Robinson

V.

nature of the third, before the revocation was at-
tempted. That the reference was made a rule of
Court does not alter the law upon this subject.
Power v. Power, 7 Watts, 212.
Johnson v. Andress, 5 Phila. 8.

January 26, 1878. THE COURT. The parties to this case agreed to submit certain controversies to the umpirage of three men, that the

There is in the evidence the expression that | 24th was in time, and therefore the award must the report agreed upon was substantially such as be stricken off.

had been drafted in June. Does this reference to that paper make it certain that the agreement for a majority report established results as well as principles. The paper of June was never considered more than a presentation of the views of the majority. After its preparation, meetings were held and evidence heard as to an item of $20,000 and another of $200 per week. It seems to have been modified as to one of these items. In alluding to this paper, the writer of it says, on page 42: "That paper was only stating the general principles involved, and yet I should say that the alterations from that paper were not in any sense substantial." This paper, was not intended as an award. We cannot find from the evidence that it embodied results. We doubt whether it was more than a mere construction of the agreement of May 13, 1873. To agree to make such a paper substantially the basis of a majority report does not mean an agreement to an award.

Rule absolute.

Opinion by YERKES, J.

Dissenting opinion by LUDLOW, P. J.

Under the submission the parties agreed that the reference or agreement should be made "a rule of the Court of Common Pleas in and for the City and County of Philadelphia, which, for the time being, may have jurisdiction of the case."

In McAdam's Executors v. Stilwell (1 H. 98). BELL, J., declares: "I think all the prior determinations show this authority (Benjamin v. Benjamin, 5 W. & S. 562) to be inapplicable when there are actions in court to which the submission refers, or a simultaneous agreement to commence one, for then there is a plain implication of an intended rule.

The Court, and not the parties, had the control of this case, and without its sanction the submission could not be revoked.

We are not satisfied that an award qua award Taking another view of the subject, it is conwas agreed upon at any meeting of the referees tended, as a sound principle of law, that where a before November 28th, 1877. Doubtless the cause has been fully heard, and the elements of award was the inevitable and logical result of an award agreed upon, and one arbitrator disthe principles which the majority had agreed sents therefrom, and gives the others so to unupon; but this result should have been deduced derstand, the proceeding is not vitiated by the and agreed upon by the majority at a meeting of fact that the award was afterwards drawn up the referees. The testimony on page 45 de- and executed. (Robinson v. Bickley, 6 C. scribes the later meetings of the referees. It is 390-7.)

as follows: "We had one or more meetings at

In the case before us, the "elements" had

which the parties were present for these pur- | been considered and agreed upon; the figures, poses. Afterwards we had several meetings in what may be considered as a report, and which during October for the purpose of considering in no way disturbed the result, were only to be an award. At one of these meetings Mr. John- reconsidered. son submitted a second report, which we discussed. Subsequently he sent me the report in November, to which I have referred. These meetings took up the greater part of October, and the delay, to which I have referred as being due to my engagements, occurred." This extract sustains the view we have taken, that the testimony does not establish that an award was agreed upon before November 28th. The calling of a formal meeting upon that day is presumptive evidence that at no meeting had the referees agreed upon an award.

It seems clear that no meeting of the referees was held in November, between the beginning and the 28th. Between November 16th and 20th, the paper called the second paper was prepared and signed by two of the referees. It was never presented at any meeting, and therefore was the act of the two referees as individuals. We cannot, therefore, hold that it was an award.

It follows that the revocation upon November

It is difficult, and I think impossible, to resist the conclusion, that two of the arbitrators had agreed to find for defendant. The other arbitrator took the papers to prepare a report of his view of the case, and while he did not, in terms, inform the plaintiff what the award would be, it is impossible, from the testimony, not to believe that the plaintiff was informed by implication of the result.

The conclusion arrived at was never changed, and the "elements" of the award appear in the final action of the arbitrators.

I have no hesitation in saying, that under the circumstances surrounding this case, I would strain every principle to its utmost legal endurance, before I would permit parties who have agreed in good faith to abide by the award of their own tribunal, and have made that agreement substantially a rule of Court, to escape the result of their own action by the baldest of technicalities.

There are several other reasons which might

with propriety be elaborately assigned for this dissent, but enough has already been said, and it would be a useless expenditure of time to prolong the controversy.

I would refuse the present motion.

Orphans' Court.

November 15, 1880.

Hook's Estate.

quest would not have been refused in a commonlaw trial, à fortiori not in proceedings before an examiner.

The exercise of the most liberal discretion in favor of justice has been enjoined even where the evidence has closed, and the cause has been opened to the jury.

2 Dan. Chanc. *1104.

Alldred v. Halliwell, I Starkie's Rep. 95.

Brown v. Giles, I Carr. & Payne, 118.

3 Chitty's Gen. Prac. 901, 12.
Browne v. Molliston, 3 Wh. 137.
Devall v. Burbridge, 6 W. & S. 530.
Koenig v. Bauer, 7 Sm. 172.

And in like circumstances to this case the Supreme Court has examined the decision of a lower Court, and directed the granting of a rePractice Examination of witnesses before ex-quest for the recall of a witness. So there are aminer-A witness is bound to attend before exceptions to the general principle that a decian examiner at the instance of either party,sion as to the recall of a witness is an exercise until his deposition has been finally closed by of discretion of the Court, and not subject to signing-Practice to compel attendance. appeal. Sur petition for an order on proponents of a will to produce a witness for further cross-examination before the examiner appointed to take testimony under an appeal from the Register of Wills, and answer.

Covanhovan v. Hart, 9 H. 495.
E. C. Mitchell, contra.

The petitioner having closed his cross-examination, or having no re-examination, has dismissed the witness. We should not be compelled to be at the burden of reproducing him.

The petition of George W. Hook, contestant of the alleged will of Henry Hook, deceased, Nov. 20, 1880. THE COURT. After spendset forth that a witness had been produced and ing four meetings before the examiner in the examined by proponents, and cross-examined cross-examination of the witness, and after havby petitioner's counsel. The meeting was then ing announced that they had closed, we do not adjourned at the request of proponent, in order think that the petitioners can require the rethat his counsel might prepare their re-examina-spondents to produce the witness for further tion. At the next meeting it was announced cross-examination; nor can the expectation of that there would be no re-examination. Coun- counsel that at the next meeting the opposite sel for petitioner then desired to ask the witness side would recall the witness for re-examination, further questions by way of cross-examination, confer such right. and requested counsel for proponents to recall him. This proponents refused to do, and the petitioner declined to proceed with the examination of other witnesses.

But the witness is bound to attend at the instance of either party, until his deposition has been actually closed by signing. (Daniell's Ch. Pr. 973.) If he refuses to attend to be The petitioner prayed for an order upon pro- cross-examined, an application may be made to ponents to produce the witness at the next meet-Court, and he will then be compelled to do what ing before the examiner. the party has a right to require of him. (Courtenay v. Hoskins, 2 Russ. 253; Daniell's Ch. P. 922.)

The answer alleged that the petitioner's counsel having closed their cross-examination, the proponents had exercised their discretion of reexamining him or not, and declined to do so; that there was no promise to re-examine, and that they having finished with the witness, he had passed out of their control.

As yet, the witness is in no default, for it does not appear that his attendance has been requested. The proper practice, we think, would be that the examiner should give notice to the witness to attend before him, at a day to be ap

It was admitted on the argument that the wit-pointed, for the purpose of further cross-examiness had not yet signed his deposition.

Washington and Wiltbank, for the petitioner. The question is not how shall a certain witness be made to appear; but must the petitioner, in further cross-examining him, be held to have made him his own witness.

Apart from the equity founded on the belief that the witness would be reproduced, the re

nation. Should he fail to attend, upon certificate to the Court from the examiner, the necessary process will, on motion, and at the expense of the witness, be granted. (1 Dan. Ch. Pr. 891.)

The order made November 8, 1880, is rescinded, and the petition dismissed without prejudice.

Opinion by PENROSE, J.

Act of March 13, 1815 (6 Sm. L. 299), sect. I, regulating the sale of unseated lands for taxes; that, in pursuance of the provisions of sects. 5 and 7 of the said Act, the said land not bringing [No. 20. at said sale the full amount of taxes assessed thereon and costs, the same was bought in by the Commissioners of the said county, and by them held until September 8, 1868, when the same was sold by them at public sale, and conveyed to John Hipps, one of the defendants; and that on August 25, 1874, within two years after Oct. 25, 1880. said Jennie came of age, she paid to the county treasurer the full amount necessary to redeem her interest in the said tract of land.