Aspinwall v. Tousey

2 Tyl. 328

Opinion

Per Curiam.

The general principle is, that either of the parties to a submission to arbitrators by deed or bond, has a right (at any time before the award is made and published) to revoke, and if any injury is sustained by the opposite party, he must seek his remedy on the bond.

An attempt is made to take this case out of the general rule, by representing that the condition in the bond of submission, that in case Tousey, the defendant; should be absent, or neglect to attend before the arbitrators, so that the award could not be made by a certain day, inevitable accidents excepted, he should relinquish all claims, See. against the plaintiff, as a contract independent of the bond of submission, and not annulled by the revocation of the submission. The Court consider, that this condition or provision is an inseparable part of the bond of submission, and must be operated upon by the revocation to the same extent as any other condition in the bond of submission. It is true it is inserted under the words commonly concluding a bond; but it is intimately connected with the subject matter of the bond by the expression, “ and it is hereby further agreed.” The breach of it has not subjected, as has been urged, to an independent extrinsic penalty, but is otherwise expressly set forth, that in addition to subjecting himself to the above penalty, the said Tousey shall relinquish, &c.

Amos Marsh, for the plaintiff. Samuel Miller and Josias Smith, for the defendant.

But the Court will not enlarge upon these minutiae, or certain other defects in the plea in bar; as the Court consider that it is beneficial to have it well understood that this .case is decided upon a general principle. That in all cases where there is a submission of matters in controversy to arbitrators by deed or bond, whether the submission be made irrevocable or not; either party may revoke such submission before the award made and published, and by such revocation he annuls all contracts relative to the submission conditioned in the bond, and leaves the party injured by such revocation to rest solely for redress upon the penalty of the bond of submission.

Let judgment be entered, that the plaintiff’s plea in bar to the defendant’s declaration in set-off, is insufficient.