This motion is predicated upon the belief that a submission of a suit or action pending in court, to arbitrators, without a rule, and not followed by any valid award, operates effectually as a discontinuance of such suit.
Here was a valid submission; but the award published by the arbitrators, did not carry it into effect; the award was void, not having been made with the concurring assent of all the arbitrators. There was no provision in the submission, that any less number of arbitrators than the whole, might make an award; and therefore, according to the doctrine of this court, as held in Patterson v. Leavitt, 4 Conn. R. 50., the award published was of no effect. The injustice of treating this action as out of court, and while the plaintiff is deprived of the benefit of the award intended to be made, is manifest; and especially, as to do so, will be also to deprive her of the securities obtained, and the costs which may be her due, in the pending action.
If the act of submission operated as a discontinuance, as the defendant insists, it would have operated just so, if it had been revoked by him; for a discontinuance once effected by the submission, and the cause out of court, it could not, as we see, be again recalled, without the assent of the parties, at least.
The defendant, in support of his motion, relies entirely upon the authority of some adjudged cases in the states of *536New-York and Tennessee. No common law authorities are referred to, by the court, in any of those cases, as precedents for the decisions there made; nor have we been able to find any, elsewhere. We must presume, that they were founded upon local rules of practice only, recognized in the judicial proceedings of those states—laws of their courts, and not upon any general principles of the common law, binding upon us. So it is in the English courts. There, a proceeding, called a discontinuance, is recognized, as a matter of practice. And this is either voluntary or involuntary. A voluntary discontinuance is like a nol. pros., or what we call, a withdrawal, or a no appearance, perhaps. An involuntary discontinuance is effected, in various ways. Sometimes, by the neglect of the proper officer of the court, in not bringing forward or continuing causes from term to term; sometimes, by some peculiarity in the pleadings of the plaintiffs; as if the defendant pleads in abatement, and the plaintiff replies as to a plea in bar; or if there be a wrong conclusion of a prayer for judgment in a replication, &c. 10 Mod. 112. 1 Salk. 177. 2 Petersd. Abr. tit. Discontinuance. But this, and many other peculiarities of English judicial practice, we have never adopted. And we no where find, even in the English books, that a bare submission to arbitration, of itself, operates as a discontinuance of an action. Such cases, however, may have escaped our research.
Nor do we recognize any principle of the common law, which should give such an effect to a submission to arbitration. It is but an accord, by which a mere private power, for a private purpose, is conferred, and as yet resulting in no satisfaction or award. Judge Swift, in his Digest, vol. 1. p. 473. speaks of a submission as being a bar; but he refers to no authority for his position, and must, we think, have adopted an exception or peculiarity in the law for a general principle; as where, by the terms of the contract itself, on which a suit is brought, it is provided, that in case of a difference, the dispute shall be referred to arbitrators, then, if a reference accordingly, has in fact been made, it has been holden, that it may be pleaded in bar of that action. 1 Wils. 129. Kyd on awards, 14. 8 Term R. 139. But beyond this, we think it has never been supposed, that a revocable submission was a bar to an action.
*537The only reason which we have seen suggested, why a submission alone should work a discontinuance, is, that by it the parties have selected another tribunal. But this is not in analogy to well settled rules. If a plaintiff commences a new suit, for the same cause, before another court, and thus selects a different tribunal, this will not defeat the pending action, but the second action will abate. A pending submission would be a good cause for the postponement or delay of the action thus submitted; but when we see, that the submission is fruitless, and may be made so, by the defendant himself, as by revocation, it would be a perversion of justice to treat such submission either as a bar or a discontinuance.
We have refused to erase a cause from the docket, on motion, for extraneous causes not apparent on the record itself; but in such cases, we leave the defendant to plead them, and thus afford the adverse party an opportunity of an issue to try their materiality. Wickwire v. The State, 19 Conn. R. 477. Lowes v. Kermode, 8 Taun. 146. (4 E. C. L. 51.)
Submission of causes in court, to the decision of arbitrators, has been a constant practice in this state, from the earliest times; but no such application as the one now made, nor any such principle as that here claimed, has been heretofore made by, or known to, the profession—good evidence that the law here is not as the defendant believes it to be. And we are not disposed now to adopt the practice claimed; and shall advise the superior court to reject the motion.
In this opinion the other judges concurred.Motion rejected.