
    Long v. Long.
    [April, 1805.]
    Arbitration — Order oí Reference — When May Be Rescinded. — Either party m ay, at any time before the award, rescind the order of reference, and discharge the arbitrators from proceeding to a decision.
    John Long brought ejectment against William Long for a tract of land. Which, by rule ^f court and consent of parties, was referred. Award in favour" of the plaintiff. Which was set aside by the court; who refused to discharge the order of reference : Bill of exceptions by the defendant to that opinion, stating that he moved to discharge the order, because the arbitrators had awarded without hearing some of the witnesses, who were absent; and because he feared prejudice in the arbitrators, and that they could not be induced to alter their opinion after having decided against him. The second award was set aside for uncertainty. The defendant again moved to discharge the order of reference, and alleged the second award as an additional reason for apprehending prejudice against him, which the court overruled, as thinking themselves bound by the former decision. The third award, was in favour of the. plaintiff. The defendant *filed an affidavit, which stated that he had material witnesses absent when the award was made; and that he refused to go to trial before the referees; because they had decided against him improperly before; and because he heard one of the referees order the award to be made out befpre the trial. The court gave judgment for the plaintiff according to the award; and "the defendant appealed to the court of appeals.
    Williams and Randolph, for the appellant.
    The court ought to have discharged the order of reference, on account of the bias which must have been created in the minds of the referees, after one decision, by them, on the question; for it was impossible that they should not have formed an opinion, too fixed to be removed; and therefore a fair determination was not to be expected. But, independent of this, either party has a right to revoke his consent to the reference, without assigning any reason for it. Kyd’s Awards, 16, 17.
    Call, contra.
    There is a difference between submissions by matter in pais, and by" record. In the first, the party, if the book cited be correct, may be at liberty to revoke; but not in the other; for the court having assented to the reference, ought to be consulted as to the revocation also. This difference seems to be admitted in the samé book, p. 19: And this court must have understood the law so in the case of Porter v. Harris, 4 Call, 485, else there does not seem to be any reason for the declaration, that no misbehaviour in the court was shewn; because, If the party had a right arbitrarily to revoke, the court could not be guiltj' of misbehaviour, in permitting him to do it.
    Cur." adv. vult.
    
      
      Arbitration — Order of Reference — When Hay Be Rescinded. — See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   LYONS, President,

delivered the resolution of the court, that the judgment was erroneous, as the order of reference should have been set aside, and the issue tried.

*The entry on the order book is as follows: ‘‘The courtis of opinion, that the .said judgment is erroneous in this, that the motion of the appellant, made on the first day of May, 1800, to discharge the order of reference in this cause, the award returned by the arbitrators having been set aside, ought not to have been overruled, but that the said order of reference ought to have been set aside, and the issue in the cause tried by a jury: Therefore, it is considered that the said judgment be reversed and annulled, and that the appellant recover against the lessor of the appellee his costs by him expended in the prosecution of his appeal aforesaid here. And it is ordered that the said order of reference, and the award made in pursuance thereof,, be set aside, and that the issue joined between the parties be tried by a jury.” 
      
      Judge Tucker did not sit in this canse; but his note book contains the following' memorandum ui'on it:
      “ Note. — It appeard to be the opinion of all the judges, in conference, that an order of reference might be set aside at any time (if no award be made), on motion of either party, provided the trial is not thereby delayed, or the party surprized. Kyd on Awards, was cited by the counsel In their arguments, pp. 16, IV.”
     