It is an ancient and well-established rule, that either party may revoke his submission at any time before the award is made; and by this revocation render the submission wholly ineffectual, and of course take from the arbitrators all power of making a binding award. (d) And in some of our States, as in New York, this is provided by statute. The precise point of time when this power of revocation ceases, may not be distinctly determined. But the reason of the case, and some of the authorities cited in the note to the preceding remarks (note d), lead to the conclusion that the power exists until the award is made.

In this country, our courts have always excepted from this rule, submissions made by order or rule of court; for a kind of jurisdiction is held to attach to the arbitrators, and the submission is quite irrevocable, except for such causes as make it necessarily imperative. (e) The same exception is now made * in England, certainly by the statute in most cases, and perhaps by the practice of courts in all. (f) In many of our States, the statutes authorizing and regulating arbitration, provide for the revocation of the submission.

As an agreement to submit is a valid contract, the promise of each party being the consideration for the promise of the other, a revocation of the agreement or of the submission, is a breach of arbitration, according to such agreement as aforesaid; and that the defendant was, at the time of the bringing of such action or suit, and still is, ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action or suit on such terms as to costs and otherwise as to such court or judge may seem fit: Provided always, that any such rule or order may at any time afterwards be discharged, or varied as justice may require." See Russell v. Pellegrini, 6 Ellis & B. 1020, 38 Eng. L. & Eq. 99.

(e) Cobb v. New England Mut. M. Ins. Co. 6 Gray, 192, 204.

(d) Vynior's case, 8 Rep. 81; Warburton v. Storr, 4 B. & C. 108; Green v. Pole, 6 Bing. 443; Marsh v. Packer, 20 Vt. 198; Allen v. Watson, 16 Johns. 205; Milne v. Gratrix, 7 East, 608.

(e) Freeborn v. Denman, 3 Halst. 116; Horn v. Roberts, 1 Ashm. 45; Ruston v. Dunwoody, 1 Binn. 42; Pollock v. Hall, 4 Hall. 222; Tyson v. Robinson, 3 Ired. 333; Buttons v. Tyrrell, 10 Vt. 94; Inhab. of Cumberland v. Inhab. of North Yarmouth, 4 Greenl. 469.

(f) See Milne v. Gratrix, and Green v. Pole, cited in note (d) supra.

the contract, and the other party has his damages. The measure of damages would generally include all the expenses the plaintiff has incurred about the submission, and all that he has lost by the revocation, in any way. (g)

If either party exercise this power of revocation (for it can hardly be called a right), he must give notice in some way, directly or indirectly, to the other party; and until such notice, the revocation is inoperative. (h)

The revocation may be by parol, if the submission is by parol; but if the submission is by deed, the revocation must be by deed.(i) It may be implied as well as express; and would be implied by any act which made it impossible for the arbitrators to proceed. So it was held, that bringing a suit for the claim submitted, before an award was "conclusively made," operated a revocation of the submission. (j) So the marriage of a feme sole works a revocation of her submission; and it is held, that this is a breach of an agreement to submit, on which an action may be sustained against her and her husband. (k) And the lunacy of a party revokes his submission. (l) And the utter destruction of the subject-matter of the arbitration would be equivalent to a revocation. (m)

Whether the bankruptcy or insolvency of either, or of both parties, would necessarily operate as a revocation, is not settled on authority. We should say, however, that it had no such effect, unless the terms of the agreement to refer, or the provisions of the law required it. But the assignees acquire whatever power of revocation the bankrupt or insolvent possessed, and, generally, at least, no further power. (n)

The death of either party before the award is made, vacates the submission; (o) unless that provides in terms for the continuance and procedure of the arbitration, if such an event occurs. (p)

(g) So, if a penalty for non-performance be expressed in the articles of submission, a revocation gives an action for the penalty. See cases cited in note (d), supra, and Hawley v Hodge, 7 Vt. 240.

(h) Vivior v. Wilde, 2 Brownl. 290, 8 Rep. 81.

(i) Wilde v. Vinor, 1 Brownl. 62; Barker v. Lees, 2 Keble, 64; Brown v. Leavitt, 26 Me. 251; Van Antwerp v. Stewart, 8 Johns. 126.

(j) Peter v. Craig, 6 Dana, 307.

(k) Charnley v. Winstanley, 6 East,

266. See also Suttons v. Tyrrell, 10 Vt. 94; Saccum v. Norton, 2 Keble, 866, 3 Keble, 9; Abbott v. Keith, 11 Vt.. 528.

(l) Suttons v. Tyrrell, 10 Vt. 94.

(m) Id.

(n) Marsh v. Wood, 9 B. & C. 669; Tayler v. Marling, 2 Man. & G. 66; Snook v. Hellyer, 2 Chitty, 43.

(o) Toussaint v. Hartop, 7 Taunt 571; Cooper v. Johnson, 2 B. & Ald. 394 1 Chitty, 187.

(p) See cases in preceding note, and Tyler v. Jones, 8 B. & C. 144; Prior v.

Although the death of a party certainly revokes a submission out of court, it seems to be held in this country, that a submission under a rule of court is not revoked or annulled, even by the death of a party. (q) So, the death or refusal or inability of an arbitrator to act, would annul a submission out of court, unless provided for in the agreement; but not, we think, one under a rule, unless for especial reasons, satisfactory to the court which would have the appointment of a substitute. (r)

It may be well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent of all the parties, has any further control over it.