Two questions are presented by this record. First, As to the authority of the court, when an award is set .aside, to remit the cause to the same arbitrators, against the protest and consent of one of the parties; and second, is intoxication of an arbitrator, while acting as snch, good ground for setting aside an award ?
Upon neither point have we any difficulty.
The record shows a case pending between these parties in the Circuit Court, and a submission by them under a rule of court, to three arbitrators. An award was made, which, for reasons shown, was set aside by the court, and, thereupon, without the consent of the defendant, and against his protest, the court referred the case back to the same arbitrators.
This, we think, was irregular. When the award was set aside, all the court had to do was to proceed with the case in court, as that was reinstated by setting aside the award. The rule is universal, if an award is defective and is set aside, the court cannot, without consent, send it back to the arbitrators to amend it. They can only set it aside. There the power of the court ended. Russell on the Powers and Duty of Arbitrators, Sec. 8, page 461. To remedy this, submissions often contain a stipulation, that in the event of either of the parties disputing the validity of the award, or .moving the court to set it, or any part of it, aside, the court shall have power to remit the matters referred, or any of them, to the reconsideration and determination of the arbitrators, or such other persons as the court may think fit. Without such a stipulation, when an award is made, the power of the arbitrator is functus officio,
In the case of Fitzgerald v. Fitzgerald, Hardin, 228, the Supreme Court of Kentucky held, when arbitrators had once executed their powers, by making and returning an award, their powers expired and were forever gone, without the express consent of both parties, to recommit the matters in contest to them again.
To the same effect are the cases of French v. Mosely, 1 Littell, 248 ; Lansdale v. Kendall, 4 Dana, 613 ; Aldrich v. Jessiman, 8 N. H. 516 ; Indiana Central R. R. Co. v. Bradley, 7 Ind. 53; The Jeffersonville R. R. Co. v. Mounts, ib. 699 ; Doke v. James et al., 4 Comstock, 575, and the cases there cited.
The right of the court to remit a cause decided by arbitrators to them again, without the consent of the parties, has no more foundation than the right to send a cause to arbitration, in the first instance, without their consent. Great injustice might be done in such cases, as in the interval, one party may have discovered that his rights were not safe with the arbitrators—that they were prejudiced, corrupt or incompetent.
On this second reference, another award was made, against the protest of the defendant, which he moved to set aside on the ground of misbehavior in one of the arbitrators, that misbehavior consisting in his being in a state of intoxication while sitting and acting as arbitrator.
It is a rule that all the arbitrators must act and act together. They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of them all, for the parties are entitled to have recourse to the arguments, experience and judgment of each arbitrator at every stage of the proceedings brought to bear on the minds of his fellow judges, so that by conference they shall mutually assist each other in arriving at a just decision. Russell on Arbitration, 209.
It follows from this, that each arbitrator must be in full possession of his faculties, his mind unclouded, and his brain undisturbed by intoxicating drinks. If he loses his reason by being intoxicated, the parties lose the benefit of his suggestions and arguments, or may be. unjustly prejudiced by the reckless character they may assume. One of them is clearly shown by the proof, to have been in a drunken condition while acting as arbitrator, so drunk as to be non compos mentis for that occasion. The award then was not made by three competent arbitrators, and should have been set aside for the misbehavior which made one of them incompetent.
For these errors the judgment of the court below is reversed.
Judgment reversed;.