At the common law a parol submission to аrbitration is good: and it is settled, that our statute of arbitrations, (2 R. S. 541,) which only speaks of a submission in writing, has not аbrogated the common law; but has left the pаrties at liberty to proceed as they did before, ex cept where the award is to be еnforced, vacated, or correctеd in the manner pointed out by the statute. (Wells v. Lain, 15
It would, perhaps, have been as well if the courts had followed the intimation of the сhancellor in Wells v. Lain, (15 Wend. 103, 4,) and held, that the statute applied to all arbitrations ; and consequently that the submission must always be in writing. But since it has been settled that thеre may be a parol submission, the doctrine must bе carried out in all its legitimate consequences. When the parties do not begin under the statute, the subsequent proceedings can neither bе aided nor injured by the statute. That was framed for one harmonious system; and not for two. The arbitratоrs mentioned in the 3d, 4th, 6th and 7th sections, are evidently thе same arbitrators who are mentioned in the 1st section, and who are to be appointed by a submission in writing. It is impossible therefore to say, that thе 7th section provides for an award by a majоrity of the arbitrators where the submission is by parol.
It is аlso clear, that the provisions for swearing the arbitrators and witnesses, and for compelling the attendance of witnesses, (§ 4, 5, 6, and Stat. 1843, p. 246,) do not apрly where the submission is by parol; and the parties must go on as well as they can at the common lаw. If they desire the aid of the statute, they must conform to its provisions.
Sections 3, 4, 5, 6, 7, and the last three sеctions of the title may, I think, be applied whenever the submission is in writing,
As there1 was no valid award, the judgment of the C. P. must be reversed, and judgment be rendered for the defendant on the verdict.
Ordered accordingly.