22 N.J.L. 161 | N.J. | 1849
The first question to be noticed, is the effect of this agreement of reference. Can it be discharged or disregarded by the court ? No doubt it may, when there has been fraud used in obtaining it; but none is pretended here, unless the fact alleged, that Dr.-Munn, the defendant’s agent, knew that plaintiff’s counsel was opposed to a reference, unless oné of the referees was a lawyer. This, however, would amount to no fraud or cause for setting aside the agreement, for the plaintiff had a right to refer his cause, either with or without his counsel’s approbation.
Nor can the evidence offered, that this agreement was made upon the condition that plaintiff’s counsel approve of the same, have any effect upon the motion. It is not found in the written agreement, and the court must be governed by that, it being entered into by the plaintiff in person, and for the defendant by his authority. We are, then, brought to this single question, had the plaintiff a right to rescind or revoke this agreement of reference.' If he had, it was done, and the court should have proceeded to try the cause. Numerous cases have been cited from the English authorities to show that agreements to arbitrate or refer matters in dispute, may be rescinded at any time before the award rendered. 2 Arch. Pr. 324; Kyd 29 ; Watson on Arbitration 27; 3 Harr. Dig.,. Title “ Arbitration ” (8) 237.
But these are all cases under the English mode of proceeding by arbitration, which is at common law, derived from the civil law {Kyd on Awards 8), and is — 1st, by submission, either in writing or by parol; 2d, by an order at nisi prius, on an agreement of the parties that the submission be made a rule, either of the court out of which the record issued or of some other court. Kyd 23; 1 Anstruther’s Rep. 1; 9 Dow. P. 0.
The statute of Yew Jersey, drawn it is presumed by Judge Paterson, was passed in 1794, and the third section provides for references by rule of court and proceedings on the report;
This court, in looking at the proceedings, must consider either that the reference was made at the time of making and filing the agreement, or subsequently, -by a rule of the circuit court, and in neither case can the party be entitled to relief here. If the reference was actually made, it is irrevocable and beyond the control of either court; if made by a rule of the court below, it was an act done by that court, within its jurisdiction and the exercise of its sound discretion; and if any error has occurred, it cannot be rectified by a mandamus from this court to the court below, requiring .the judge to reverse his own judgment, vacate his rule of reference, and proceed with the cause according to law. The plaintiff’s rule must be discharged with costs.
The Chief Justice concurred.
Rule discharged.