The opinion of the Court was delivered by
Moses, C. J.The principles which are to be applied to the determination of the motion in this case present no difficulty or intricacy. The latitude which was allowed to the counsel on both sides may be referred rather to their impressions of the questions involved than to any such recognition on the part of the Court.
While we do not consider that the result of the motion depends upon the view which we may take of the order of May 17, 1873, either as a reference under the Code or a general submission to arbitrators by both parties, through the exercise of a right inherent in the Court to permit such a determination of a pending action, our conclusion is that it falls within the latter class. The frame of it is inconsistent with one appointing a Referee under the Code. Apart from other inferences which may be drawn from its language, the exclusive power to the Referees, or a majority of them, to make a final decision, which was to stand as the judgment of the Court, not to be subject to appeal, distinguishes it from the technical reference, which is to inform the Court of the finding of facts and of law, that its judgment may be passed thereon. It contemplates that the judgment of the Referees should be substituted for what would otherwise be that of the Court, and forbids its review by any appellate tribunal. It has all the characteristics and distinguishing features of an arbitration at common law, and there is nothing in the Constitution or Statutes to forbid this exercise of power by the Court of Common Pleas to the same extent as assumed before the change in our judicial system. On the contrary, it is recognized as an existing incident, for Section 11 of Chapter CXXXI of the General Statutes, p. 725, makes it an offense, punishable by fine and imprisonment, to corrupt, or attempt to corrupt, by gift or gratuity, any arbitrator in relation to any cause or matter for the decision of which he has been chosen or appointed.
Mr. Russell, in his work on Arbitrators and Awards, p. 638, says: “ In considering what may be the grounds of a motion to set aside an award, a distinction may be noticed between awards pursuant to submissions made rules of Court by the inherent jurisdiction of the Courts, and those on submissions of which the Courts take cognizance by virtue only of the statute of William III.” .
Even in those States where provision by statute is made for the arbitrament of eases, the common law right of parties to submit a *42pending cause to arbitrators is not regarded as prohibited or in the least impaired, nor are the rights and incidents which properly belong to that mode of decision at all affected by the statutory regulation. — Blunt vs. Whiting, 3 Sar., 4; Voone’s Code, 96; Childs vs. Updyke, 9 Ohio, 333; Lison vs. Sellers, 40 Ga., 710; Brighton vs. Guthrie, 19 Penn. St. Rep., 421; Yates vs. Russell, 17 John., 462; Heckers vs. Fowler, 2 Wall., 173.
The distinction is well illustrated and established by the case of Milligan vs. Dick, 2 Ves., Jr., 23, where a reference to arbitrators, “ in the same manner as is referred to the Master, and the parties to be concluded and bound by the award,” was held not in nature of a reference to the Master.
The power conferred on the Court by the Code of Procedure in regard to Referees was not a restriction or limitation of that which it exercised under its common law power. Nor can the fact that no discontinuance of the case was entered at all impair the character or force of the order. The purpose of both the parties must have been, through the submission, to obtain an award which could be made the judgment of the Court on behalf of the one in whose favor it was pronounced. To this end its confirmation was necessary, for otherwise the award, instead of being in a form in which it could operate as a lien on the property of the party against whom it was made, could have had no higher rank than any other cause of action, to be converted into a judgment only by suit.
Viewed in the light in which we regard the submission, it was not necessary that the form of proceedings which apply to “ trial by Referees” under the Code should have been followed by the “ Special Referees ” under the order in this cause. Why the term “Special” was applied, unless to distinguish them in comprehension of power from the class designated by the Code as “ Referees,” and deriving their, powers only from its provisions, we cannot conjecture, unless to indicate their distinction from those recognized by the Code and owing their existence to it.
An arbitration proceeds from the consent of the parties. The Court is but the instrument through which in a pending case effect can be given to their will. It contemplates an adjustment of their controversy by a forum not bound by the strict rules of law, but permitted within certain limits to substitute their own mode of investigation in the place of that through which alone Courts of justice are allowed to exercise their functions. A ready ear is not *43given to objections raised by the disappointed party, who, being dissatisfied with the result by the tribunal of his own selection, applies for the interposition of that which he had before renounced.
To avoid an award, according to the decisions of our Courts, (and it is not necessary to go beyond them,) the resisting party must show either corruption, misbehavior amounting to partiality, excess of authority or such palpable mistake of facts as must satisfy the Court, if they had not been made, the decision of the arbitrators, according to their manifest intent, would have been different.— Muller vs. Cravat, 2 Bay, 370; Executors of Radcliffe vs. Wightman, 1 McC. C., 416; Askew vs. Kennedy, 1 Bail., 4.
A misapprehension or mistake of the law will not be allowed to set aside an award. — Mitchell vs. Deschamps, 13 Rich. Eq., 9; Cohen vs. Habernitch, 14 Rich. Eq., 31.
The principle so announced may be general in its terms. It should be qualified by the principle laid down by Judge Story in Section 1455 of his Equity Jurisprudence, and sustained by the authorities toi which he refers, that “if they mean to decide strictly according to law and they mistake it, although the mistake is made out by extrinsic evidence, that will be sufficient to set it aside.”
While regarding the submission to arbitrators as the excerise by the Court of its inherent powers, irrespective of that derived from the Code, we do not perceive any ground on which either of the exceptions could be maintained, even if assumed to be made in a reference under the Code, except that which relates to the question of costs.
Those which involve questions of law we will hereafter notice. Those which arise on the findings of fact have been passed upon by the Circuit Judge. It is enough to say that we do not see such error in his conclusions from the testimony as would justify our reversal of his judgment. Following the example of the Supreme Court of the United States in Harral vs. Beall, 17 Wall., 591, “ where the question is wholly one of the weight of evidence, and involving no controverted proposition of law,” we do not feel ourselves called upon “ to reproduce in our opinion the facts on which our judgments rest in such cases.” More particularly will this rule be observed when our conclusions on the facts are in accord with those of the Judge below.
*44The exceptions which may be regarded as raising questions of law are :
1. That the report did not state the facts found and the conclusions of the law separately.
2. That the defendant and Diedrich Bollmann were permitted to testify.
3. In not allowing interest from the death of Henry Bollmann.
4. That two of the Referees were used as witnesses.
5. That the evidence of Wohlers was received in the absence of the appellant’s counsel.
In regard to the first, it may be enough to say that the language of the Code is to be considered as directory and not mandatory. In Grant vs. Morse, 22 N. Y., C. J. Comstock says, at page 325 : “ If the report disclosed that the Referee was requested to fiud upon the issues, and refused to do so, one way or the other, a question would be presented not now necessary to be determined. It was the privilege of the defendants, in procuring the Referee to settle it, to require him to find on all the issues the one way or the other.” No such demand in the case before us was made, and the party cannot take advantage of her own omission and be allowed to present an exception the necessity of which could have been avoided by her own foresight. But even if the exception was tenable, the appellant should certainly be required to show how she was prejudiced by the want of the separation of the issues of law and fact in the report. In addition to what has been said, if the separation was necessary to a better understanding of her rights, her course was not to except because of the omission, but to move for a recommittal of the report, that it might be reproduced in the desired form.
As to the second exception, no objection was interposed to the examination of the respondent as a witness, and it is too late to now make it. Diedrich Bollmann was no party to the record ; has no interest in the event of the suit; the judgment could in no particular affect him; could never apply to him as res ad judicata; and there is nothing in Section 415 of the Code which could, therefore, render him incompetent as a witness between the parties in the cause.
The exception as to the examination of Wohlers in the absence of the counsel cannot prevail. Although it was irregular, yet, as the Referees kept full and correct minutes, which were always open *45to the inspection of the counsel, and as the examination of Wohlers was brought to his notice at a subsequent meeting, and as the witness was fully examined by him on the very subject matter to which he had testified at the previous meeting in his absence, how has she been prejudiced by what, from the previous course of her attorney, can be viewed only as an inadvertence, causing her no injury?
The exception that two Referees were used as witnesses does not come with a good grace frour the appellant. As far as it extends to the testimony of Mitchell at the meeting on July 8th, 1873, the counsel being present, “it was agreed that his statement should be taken as a starting point, and on motion of Mr. , attorney for the respondent, it was proved by Mitchell to be the one taken from the books.” At the meeting of August 1st, 1873, the appellant’s counsel “examined and swore him in regard to the correctness and accuracy of the several amounts due, as appeared in his balance sheet of the books.”
The remaining exception is as to the interest. This is the only one that appears to be entitled to any consideration, if the order of the Court could be viewed as directing a reference under the Code, and then it would be subject to the objection that it was waived, because, with full knowledge of the conclusion of the Referees as to the interest, no expression, or even intimation, of dissent was interposed by the counsel or by the appellant until June 22d, 1874, although exception to the charge of the costs to the copartnership was taken on the 16th of the same month. Independent, too, of the terms of the submission “ that the decision of said Referees or a majority of them shall be final and shall stand as the judgment of the Court, not subject to appeal,” the course of the appellant debars her from seeking a review of the award on any of the grounds she has submitted. With notice of it, her counsel expressed himself “bound by it, and would at any day go into Court and consent to the confirmation.” Besides this, he admitted in the Court below “that he felt bound not to appeal except upon the question of costs raised in his exceptions.” This was but a compliance with the demand of the law. It was required by the submission, through the accepted construction which must be given to such an instrument. “Where an order of reference contains a clause restraining the parties from bringing a writ of error, they are precluded from moving in arrest of judgment.” — Chowner vs. Bowen, 2 Dowl. & S., 706.
*46But there are still other matters in the case that bear on all the exceptions and are as to the costs, which must preclude them. With knowledge of the fact that the $2,000 reserved to cover the expenses of the Referees, clerk, &c., had been charged to the copartnership fund, “it was agreed by the attorneys on both sides that it shall be paid to them by Mrs. B. Bollmann at once, &c.,” and in their presence the payment was made. This is an acquiescence on the part of the appellant which should conclude her appeal, except to that portion of the award to which objection by her counsel was made. The payment must be assumed to have been induced by the purpose to whicji it was to be applied and the credit which was to be given to the respondent on the copartnership fund. It was a fair impression on his part that the charge which the allowance created was to stand without dispute. The principle on which the Court proceeded in Kennard vs. Harris (2 Barn. & Cress., 801,) to some extent applies here. It is well and truly expressed by Mr. Justice Curtis, in Swain vs. Leamin, 9 Wallace, 274: “When a person tacitly encourages an act to be done, he cannot afterwards exercise his legal right in opposition to such consent if his conduct or acts of encouragement induce the other party to change his position so that he will be pecuniarily prejudiced by the assertion of such adversary claim.”
Most of the points involved in the case, made since the award, have arisen from the irregularity of the proceedings which have followed. While there is no doubt or question of the propriety of the professional motives which have induced the action of the counsel for the appellant, if the mode pursued is allowed, it must lead to a course of practice which the Court cannot accept. While the attorney on record, the only one who represented her from the filing of the complaint to the award, (and still represents her,) concedes that he is bound not to appeal from the judgment of the Referees, (except as to the costs,) assistant counsel, retained after it is made, and not knowing to what extent the attorney on record may have committed himself against an appeal, finding what he believes to be errors, from which his clients, in his judgment, can be relieved, submits exceptions, which his colleague, by his own admissions, does not feel justified in taking, by reason of his own course in the previous conduct of the cause. There must be a time for the cessation of litigation in every case; and if the honest zeal of every new counsel employed can see objections which he thinks may favorably *47affect his cause, although the counsel of record regards himself as not permitted to take them, when is the contest between the parties to terminate?
We concur with the Circuit Judge in refusing the motion founded on the affidavit of Mitchell, the notice of which was given on the 16th July, 1873. On the 30th June preceding, the judgment of the Court was pronounced. It disposed of the award and the arbitrators. It is of the very essence of an award that it should be final. The Court acts upon it in the light of a judgment, leaving nothing in the submission to be afterwards passed upon. If the appellant can claim any relief through the matter referred to in her petition, it cannot be afforded through the mode in which she has sought it. It is proper, in passing on this 'point, to say that the Referees had full knowledge of the time of the death of the intestate and the date of the.grant of the letters of administration, for they were both set forth in the complaint. The first bond necessarily preceded the letters. It involved at most but a question of fact, and we see nothing which requires us to interfere with the course of the Circuit Judge in regard to it. •
It remains to consider the motion on the part of the respondents: “Protesting against the right of appeal of either party, nevertheless, if the plaintiff’s appeal is to be heard,” the respondent appeals from the order of the Circuit Court requiring him personally to pay all the costs of the action, including the amount paid the Referees. His appeal arises out of the exception of the plaintiff’s counsel to so much of the award as required the costs of the case and the amount paid the Referees to be borne by the copartnership. We have already passed upon the question raised on the payment of the $2,000 to the Referees,-and, for the reasons assigned, so much of the decree of the Circuit Judge as disallows it as a charge against the copartnership must be reversed.
In rendering our judgment on so much of the motion of the defendant as relates to the costs, it must be understood that the rules by which we will be governed are those applicable to an award by arbitrators, for such we regard the return made to the Court, and not to a reference under the Code.
A matter of costs is not generally the subject of appeal, and it is sustained here, not purely as one of that character, but rather as drawing in question the right of the Circuit Court to entertain any exception to the award.
*48It must be decided by the solution of a single proposition. Did the reference of the pending case, with ail issues of law and fact, to arbitrators carry with it as an incident of the submission the question of costs?
Mr. Russell, in his work on Arbitrators and Awards, page 371, says: “ When a cause alone or a cause and all matters in difference are referred, and nothing is said in the submission respecting costs, the arbitrator has an implied authority to adjudicate respecting the costs of the cause, but not of the reference or award.”
Mr. Billings, in his Treatise on Award, page 188, says : “Where the submission is silent as to the costs of the cause, the arbitrator has power to award them, for it is an act consequent upon the authority conferred upon him for determining the cause, and the insertion of a direction as to the costs is a restriction of his power of allowing the costs at his own election.” — See Roe vs. Doe, 2 T. R., 644.
Mr. Watson, in his volume on Arbitration and Awards, page 94, says: “It is perfectly clear that where a cause is referred, and the order of reference is silent as to costs, the arbitrator has power over the costs of the action, but not over the costs of the reference.”
The American authorities do not concur in any general rule. — See Morse on Arbitration, page .126. They seem, however, to recognize a distinction in regard to the power over costs between the reference of a matter in pais, where no cause is pending, and one of a subsisting action. Untrammeled by any prevailing rule in the American Courts, different from that established by the English authorities, — drawing our conclusions from principles prevailing in both,— we feel bound to follow the latter. The purpose proposed by the arbitration of a cause is to withdraw it from a trial according to the fixed rules of law and submit it to the adjudication of a forum not bound by those of a defined and established character, either as to its mode of conduct or decision.
“ This case, with all its issues of law and fact, was referred to ‘ special Referees ’ to hear all extrinsic evidence upon all questions raised by the complaint and answer, its decision to be final, and to stand as the judgment of the Court, not subject to appeal.” A submission more general could not be framed. Costs had already accrued; further costs were necessarily to follow. The case was withdrawn from the Court in which it originated and committed for a final decision to a tribunal chosen by the parties. If the power *49to award as to the costs was not regarded as an ci unquestionable incident,” where was it left? Not in the Court, for both the plaintiff and defendant, by the exercise of a rightful power, had remitted it to judges of their own creation. They should abide by their choice.
It is ordered that the case be remanded to the Circuit Court for such orders as may be necessary to carry out the views expressed in this opinion.
Wright, A. J., and Willard, A. J., concurred.