thereof, together with this warrant. And we do hereby command you, the said keeper of the said jail, to receive the said C. D. into your custody in the said jail, there to remain confined for the space of seven days. Given under the hands and seals of the said justices, at South Ottawa, in the county aforesaid, the day of

18 Sylvanus Crook, [L. S.] William Richardson. [L. S.]

Form of oath, under sec. 12.

You do solemnly swear by the ever living God, that you will make true answers to such questions as may be asked you touching the present complaint against E. F. So help you God.

Affirmation, sec. 12.

You do solemnly, sincerely, and truly declare and affirm, that you will make true answers to such questions as may be asked you touching the present complaint against E. F. And this you do under the pains and penalties of perjury.

Form of warrant, under sec. 12.

State of Illinois,

La Salle county, S ss. The people of the state of Illinois, to any constable of said county:

Whereas, C. D., a competent person, hath this

day

of in the year of our Lord one thousand eight hundred, &c., made complaint, on oath, before Sylvanus Crook, Esquire, one of the justices of the peace of said county, that E. F., the master of A. B., an indentured apprentice, is about to remove or cause to be removed, the said A. B. out of this state:

We, therefore, command you forthwith to take the said E. F. and bring him before the said justice, at his office in South Ottawa, in said county, to be dealt with according to law. Hereof fail not at your peril. Witness, the said Sylvanus Crook, Esquire, at South Ottawa, in said county, this day of in the year of our Lord one thousand eight Sylvanus Crook. [L. S.]

hundred and

Recognizance, under sec. 12.

State of Illinois, ?

La Salle county, ss. S Be it remembered, that on this day of in the year of our Lord one thousand eight hundred, &c., E. F., of the county of La Salle, and G. H. and I. J., of in the said county, personally come before

me, Sylvanus Crook, Esquire, a justice of the peace of the said. county, and severally and respectively acknowledge themselves to owe to the people of the state of Illinois, that is to say, the said E. F. the sum of one thousand dollars, and the said G. H. and I. J. the sum of five hundred dollars each, to be levied of their respective goods and chattels, lands and tenements, to the use of the said people, if the said E. F. shall make default in the condition following:

The condition of this recognizance is such that, if the said E. F. shall not remove A. B., an apprentice, (or "clerk," or "servant,") bound to him by indenture, without the jurisdiction of this state, and shall personally appear with said apprentice (or "clerk," or "servant") before the circuit court at the next term thereof to be held in and for the county of La Salle, and abide the decision of the court therein, and shall not depart the court without leave, then this recognizance to be void, otherwise to remain in full force. Taken, subscribed, and acknowledged the day and year first above written, before

me,

Sylvanus Crook.

E. F.

G. H.

I. J.

CHAPTER III.

ARBITRATION,

Arbitration is where the parties submit the matters in difference between them to a tribunal created by themselves and composed of one or more persons, called arbitrators. They are so called because their power is arbitrary; for, if they observe the submission and keep within due bounds, their decisions are final and conclusive, and there is no appeal from them.

The terms arbitration and reference are often used as synonymous, and yet, in strictness, there is a difference between them, an arbitration being where the parties, in the first instance, select arbitrators as a tribunal, and a reference being where a suit has been commenced before another tribunal, and referred by that to referees, who report their proceedings to it. The subject of referring suits, by a justice of the peace, will hereafter be examined. Arbitration, as thus distinguished from reference, is the subject now to be considered; and, though it is one with which justices of the peace, as such,

do not have a great deal to do, yet, as they are perhaps more frequently called upon to act as arbitrators than other persons, a brief view of the law relating thereto may not be amiss.

By the common law as adopted in this state, arbitrators had no power to compel the attendance of witnesses before them, or of administering oaths to them; and from this cause their awards must, in some instances, have been unjust and unsatisfactory. 3 Bl. Com., 17, note 9. And so the law remained in England until the time of William IV.

Submissions to arbitrations were entered into by a rule of the court, at the common law, when a cause was depending; and the statute of 9 and 10 Willian III., c. 15, was intended to give the same efficacy to awards where there was no suit or action pending. 2 Burr, 701. The first three sections of the act of this state contain, with some modifications, the same provisions as the act of William. The fifth section provides for compelling the attendance of witnesses and for administering oaths to them.

Arbitrations are either under the statute or at common law. Arbitrations under the statute differ from those at common law in this respect: in the former, the award being returned into court, judgment may be rendered, and an execution issued for the amount awarded to be paid, or, if the award be for the performance of some act and not for the payment of money, obedience may be enforced by attachment; but in the latter, the amount awarded can only be collected by bringing suit on the award, or the performance of the act awarded to be done can only be enforced in a court of chancery. In the former the submission must be in writing, and in the latter, it may be either verbal or in writing; yet it would be better always to have the terms of the submission reduced to writing, in order to prevent dispute about what is to be submitted to the arbitrators. 15 Wend., 97.

The following is the act of our legislature on the subject, except the fourth section, which is in relation to referring cases pending in the circuit court.

"SEC. 1. Be it enacted by the people of the state of Illinois, represented in general assembly, That all persons desirous to end any dispute or controversy by arbitration, for which there is no other remedy but by action at law, or suit in equity, may agree that their submission to arbitration shall be made a rule of the circuit court, and may insert such their agreement in the submission, or in the condition of the bond or promise; which agreement, on producing an affidavit of the due execution thereof, and filing it in the court, may be entered of record, and a rule of court shall thereupon be made, that the parties shall submit to, and be finally concluded by such arbitration; or such persons desirous to end any dispute or controversy as aforesaid, may personally appear before the circuit court, and acknowledge that they have mutually agreed to refer all

their matters of difference, or any particular dispute, to the arbitrament of certain persons by them agreed on and named: on their desiring such submission to be made a rule of court, the same may be entered of record, and a rule of court shall be made, that the parties shall submit to and be finally concluded by such arbitration. In either of the above cases, when the award shall be for the payment of money only, the same being returned into, and accepted by the court, judgment shall be rendered thereon for the party in whose favor the award is made, to recover the sum awarded, to be paid to him, together with the costs of arbitration and the costs of court, and execution may issue thereon accordingly. No judgment shall be entered on any such award, unless it shall appear to the court that a copy of the award and notice to appear and shew cause why judgment should not be entered on the same, has been previously served on the party to be charged with the judgment, at least four days before the motion for judgment shall be made no judgment shall be entered on motion as aforesaid, after one year from the time of making the award.

"SEC. 2. When the award shall be for the performance of any thing other than the payment of money, the same being returned into and accepted by the court as aforesaid, obedience thereto may be enforced in the said court, by attachment, in the same manner, as obedience may be compelled to any other rule of court.

SEC. 3. Any arbitration, umpirage or award, procured by corruption or undue means, shall be judged void, and may be set aside in law or equity; in equity, by proceedings on original bill, and at law, on motion in the court where submission is made a rule of court, or where any suit or proceedings shall be instituted on the arbitration bond, submission or award. Complaint must be made of such corruption or undue practice, before final judgment upon the said bond, submission or award.

"SEC. 5. The several clerks of the circuit courts and the justices of the peace in their several counties, may issue subpœnas for the attendance of witnesses before arbitrators and referees if any witness, after being duly summoned, shall fail to attend, the arbitrators or referees may issue an attachment to compel his attendance, and the said witness shall moreover be liable to the party for refusing to attend the same as in trials at law. The arbitrators and referees may administer oaths and affirmations to witnesses; may punish contempts committed in their presence during the hearing of a cause, the same as a court of record; may continue the hearing of a cause from time to time upon good cause shown, and may admit depositions to be read in evidence, the same as in trials at law.

"SEC. 6. Each arbitrator and referee shall before he

pro

ceeds to the duties of his appointment take an oath or affirmation, faithfully and fairly to hear and examine the cause in question, and to make a true and just report or award, (as the case may be,) according to the best of his skill and understanding; which oath or affirmation, any judge or justice of the peace of this state is authorized and required to admi

nister.

"SEC. 7. Each arbitrator and referee shall be allowed for every days attendance to the business of his appointment, one dollar, to be paid in the first instance, by the party in whose favor the award or report shall be made, but to be recovered of the other party with the other costs of suit, if the award or report shall entitle the prevailing party to recover costs. Witnesses shall receive the same fees for attendance at arbitrations and references, as shall be allowed them in the circuit courts. Sheriffs, constables, clerks and justices of the peace, shall be entitled to the same fees for services performed in relation to any arbitration or reference, as shall be allowed by law for the like services in their respective courts."

Care should be taken, in preparing the submission, to state that the submission to arbitration, and not the award, shall be made a rule of court. The supreme court of this state has decided that, in the latter case, it would be erroneons to enter up a judgment on the award in the circuit court. Breese's Rep., 230. The English statute, on this subject, contains the same phraseology as ours, "that the consent expressed in the bond, or agreement, must make the submission a rule of court;" and, under their statute, it was decided that, though the submission bond stated that the award should be made a rule of court, yet it was no objection. 3 East, 602. The case of Harrison v. Grundy, 2. Str., 1178, where a similar objection prevailed, was cited in this case in East, but Ld. Ellenborough, referring to a later case, Powell v. Phillips, E. 30, Geo. III., where the bond stated that the award should be made a rule of court instead of the agreement, and, in which case; it was holden to be no objection, said this was the later and more sensible determination. And to the same point, see 2 Bos. & P., 444. 1 Ld. Raym., 674. 1 Salk., 12. Beames, 55. Our supreme court requires a more strict adherence to the language of the act, and the language certainly requires the submission, and not the award, to be made a rule of court.

If the submission be according to the statute, it may be revoked before it is made a rule of court, but not afterwards. 1 Cowen's Rep., 335. 7 East, 608. 3 Scam. Rep., 324. If not according to the statute, then it may be revoked at any time before the award is made, and, if it be without deed, then it may be revoked without deed. 1 Bac. Abr., 204.

If the submission be by deed, it is, of its own nature, countermandable, though made irrevocable by the express words of the deed; for the arbitrators being constituted and put in