dissenting. The award, which is the occasion of this dispute, may have been entirely just, and it may operate harshly to set it aside. But it seems to me, that there is a principle involved here of no ordinary importance; and if there is not, I shall regret a public dissent from the opinion of my brethren.
I see nothing here to convince me, that Wilcox, who was called in to the decision, by the arbitrators, was a mere advi*318sory friend, whose opinion might be regarded or not, by his associates. He was either an umpire, or an arbitrator.
By the submission, the two arbitrators first selected, in case of disagreement, were authorized to select a third person, who,individually,or in conjunction with the arbitrators already chosen, should make an award. Under this power, without the knowledge of either party, the arbitrators called to their aid Ebert, Wilcox, not as umpire to determine the matter alone, but as arbitrator to act conjointly with them. Here then, were three arbitrators, with the same powers, to perform the same duties. There is no intimation in the submission, that these arbitrators, when acting together, were to act or decide on different principles. What was the duty of one, was the duty of all. In the admission of testimony, arbitrators are to be governed by the ordinary rules which govern courts ; for these rules are founded on the established principles of justice and propriety. Arbitrators cannot proceed, without giving reasonable notice to the parties ; nor can they, without the consent of parties, either expressed in the submission or otherwise, admit, in opposition to the rules of law, the testimony of parties, or interested witnesses ; nor hear witnesses not under oath, nor hearsay testimony, &c. 1 Sw. Dig, 467.
Now, I am not persuaded, that this new arbitrator could, without authority given by the parties, proceed to an award, without a notice to them, nor without a hearing. He had no greater powers, in these respects, than his associates. No such power is expressed in the submission ; none such can be inferred from the nature of the business entrusted to him. To enable him to decide correctly, it was as necessary that he should hear the proofs, as that the others should. How can it be inferred, that he, any more than the other arbitrators, should be governed by hearsay evidence, and evidence without oath too — the mere statement of his associates, probably as contradictory as their opinions liad been ?
The adjustment of controversies by arbitration, should be encouraged, but not at the expense of all the principles which have been considered essential in the discovery of truth. The whim and caprice of arbitrators, no more than of courts and juries, should not be permitted to come in the place of proof and careful judgment.
*319It is said, 1 know, that tl is analogous to case of um-pirage, and that an umpire may proceed to make an award upon the statement of the arbitrators, or may acquaint himself with the truth, in any oilier way. I am not prepared to. acquiesce in this doctrine, if there be any such, unless by the terms of the submission, such power has been conferred upon him. In all the cases,jt seems to be conceded, that the parties, or either of them, may be heard before the, umpire, if they claim it. This concession presupposes the duty of the arbitrators or umpire, to give notice of the appointment of an umpire. In the present case, this was not done. Neither party knew that the arbitrators had disagreed ; and neither knew of the appointment of Wilcox, as an arbitrator or umpire. Neither party, therefore, had it in his power, if he would, to be heard again. To hold an award made under such circumstances, to be binding, would be a subversion of the first principles of justice. In the case of Peters v. Newkirk, 6 Cowen, 106. the court say, “the right to notice was implied in the agreement to submit.” Also, a principle, very analogous to the one I have adopted, seems to have been involved in the case oi Lutz v. Linthicum, 8 Peters, 166. At any rate, I am unwilling to introduce a principle into our system of jurisprudence, which subjects the decision of causes to the operation of testimony altogether illegal and inadmissible, unless the parties have, very considerately, consented to be bound by it.
Bill dismissed.