pay him weekly the sum of one dollar, and at the end of his term of service, to wit, the first day of May, 1864, to pay to him the sum of three hundred dollars, and a new suit of clothes. Witness our hands this first day of May, 1859.

In presence of

PAUL SAMPSON.
PANOCHE, X his mark.

LAWRENCE RYAN, Justice of the Peace.

City and County of San Francisco, ss:

I, Lawrence Ryan, justice of the peace of said county in and for the first township, certify that I approve of the foregoing contract of service, and I do hereby file the said contract in my office, as required by statute, this first day of May, 1859.

LAWRENCE RYAN, Justice, &c.

CHAPTER IV.

ARBITRATION.

PERSONS capable of contracting may, by agreement in writing, submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.'

It may be stipulated in the submission, that it be entered as an order of the District Court, for which purpose it shall be filed with the clerk of the county where the parties, or one of them, reside. The clerk shall thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered, the submission shall not be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission be not made an order of the court, it may be revoked at any time before the award is made.

Arbitrators shall have power to appoint a time and place for hearing, to adjourn from time to time, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon.'

All the arbitrators shall meet and act together during the investigation; but when met, a majority may determine any question. Before acting they shall be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation

1 Wood's Dig. art. 380–385.

to the matters in controversy, and to make a just award according to their understanding.'

The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties. When the submission is made an order of the court, the award shall be filed with the clerk, and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit, showing that notice of filing the award has been served on the adverse party or his attorney, at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be entered by the clerk in his judgment book, and shall thereupon have the effect of a judgment.'

The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discretion: 1. That it was procured by corruption or fraud. 2. That the arbitrators were guilty of misconduct, or committed gross error in refusing on cause shown to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced. 3. That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted to consider a part of the matters submitted to them; or that the award is indefinite, or cannot be performed."

The court may, on motion, modify or correct the award, where it appears: 1. That there was a miscalculation in figures, upon which it was made, or that there is a mistake in the description of some person or property therein. 2. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matter submitted. 3. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded.'

The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action, but the judgment entered before a motion is made shall not be subject to appeal.'

If a submission to arbitration be revoked, and an action be brought therefor, the amount shall only be the costs and damages sustained in preparing for and attending the arbitration.'

JUDICIAL DECISIONS

The submission of a cause in court to arbitration operates as a discontinuance of the suit; a consent to submit a matter to arbitration does not imply a consent that the party in whose favor the award is made, may enter judgment upon it in court as a matter of course. The ordinary way of enforcing an award is by action; and where no statute exists authorizing the court to enter judgment on an award upon motion, the court has no right to proceed in that way.'

Unless the statute is strictly complied with, a submission of a cause to arbitration amounts only to its withdrawal from the jurisdiction of the court, which loses all control over it, and has no authority to enter judgment upon the finding of the arbitrators, except by consent of parties."

Our statute is but a reaffirmance of the common law, and gives to parties no higher rights than they might have asserted in a court of equity, in case of mistake, fraud, or accident. The arbitrators are not bound to decide on principles of strict law, but may decide on principles of equity and good conscience.*

If arbitrators intend to decide according to law, and mistake the law, the court will set aside their award.'

In all cases where the arbitrators give the reasons of their finding, they are supposed to have intended to decide according to law, and to refer the point for the opinion of the court. In such cases, if they mistake the law, the award must be set aside, for it is not the opinion they intended to give, the same having been made through mistake."

Where parties refer all their differences to arbitration, it is the duty of the arbitrators to pass upon the whole subject in controversy, and if it appear upon the face of the award that they have not disposed of the whole matter, but have left a part open;

1 Wood's Dig. art. 886-389.

21 Cal. 45.

4 id. 1.

id. 205; 2 id. 74.

2 id. 74; id. 122.

or, if the terms of the award be such as to render a further in quiry necessary to ascertain a sum of money to be paid, or some act to be done, it is void, and will be set aside. When arbitrators have published their award by delivering it to the parties as the award, any revision, correction, or alteration made by them, without the consent of the parties, will vitiate it.'

A stipulation in the submission that neither party should appeal, and a power of attorney to confess judgment pursuant to the award, will not bar an appeal from a judgment on the award, especially under our system, where law and equity are blended together.'

Contemplative, speculative and contingent profit, cannot be allowed as damages."

An award to be effectual must be certain and conclusive, and all intendments must be in favor of giving it certainty. The court must lean to such construction as will support it, and the uncertainty, if any, must appear upon its face."

Courts of equity will set aside awards for fraud, mistake, or accident, and it makes no difference whether the mistake be one of fact, or law."

The award rendered upon a fair arbitration of the matters in dispute, and long concurred in, is conclusive of the rights of the parties."

Where parties enter into a submission to arbitration, wherein it is stipulated that the award be entered, as the judgment of the county court, it is void, in toto, that court having no jurisdiction over the subject matter of the award."

One partner cannot bind his copartner by submission of partnership matters to arbitration, but such submission would be good as against himself."

A submission to arbitration cannot be entered as an order of the county court, from want of jurisdiction."

When an arbitrator exceeds his authority, the effect of his act is void, whether done conscientiously or by mistake."

1 7 Cal. 812

22 id. 74

* 1 id. 122.

♦ 2 id. 601.

$ id. 74, 122

5 id. 179.

79 id. 142.

85 id. 345.

9 id. 142.

10 5 Abbott, 28.