Small v. Thurlow , 37 Me. 504 ( 1854 )

Rice, J.

— The parties, on the 15th day of June, 1850,-then having1 an action and cross action pending between them, agreed to refer all their difficulties at issue to the decision of four men, to be selected, two by each party, and in case the four thus selected could not agree, or should they desire to do so, they were authorized to choose a fifth referee, and the award of the four, if they should agree, or of the five, if the four should not agree, was to be final between the parties. There was no time specified in the agreement within which an award should be made.

The referees, when they met in June, did not agree, and did not select a fifth referee, as contemplated in the submission, and refused to make an award.

In this state of the case the plaintiff contends that the agreement to refer became inoperative and void, and that the parties were remitted to their original rights.

When no time is fixed within which an award is to be made, the arbitrators may take what time they please, unless either of the parties specially request them to make an award within a reasonable time, and in case of refusal, revoke the submission; for parties will not be bound by an award after such revocation. Kyd on Awards, 96.

The case finds that the four referees refused to make an award; but it does not find that they refused to appoint the fifth referee, or that they had ever been requested to do so by either party. There is no evidence, therefore, that a determination of the matters submitted, have become impracticable, or that either party were in ss position to revoke the! submission.

The matter in suit was, so far as appears from the facts-reported, pending before the arbitrators when this action was' commenced. That fact does' not, however, by its own: force operate to divest this Court, of its jurisdiction, but leaves the parties in the same situation that they would have-occupied had a suit for the same cause of action been pending in some other court. It should have been pleaded in abatement.

A plea that the causes of action in the declaration have been referred to arbitrators and are still under their consideration, and that a reasonable time for making their award has not yet elapsed is bad, in barand if not commencing- and,concluding in abatement, cannot be treated as a plea in abatement. 1 Saund. Plead. 285.

The Court being of the opinion that under the existing state of the pleadings the action is maintainable, a default' is to be entered, according to the agreement of the parties.

Sheplev, C. J., and Howard, H^thawae and Cutting) J. J., concurred.