Transformed, not transcended: The role of extrajudicial dispute resolution in antebellum Kentucky and New Jersey

American Journal of Legal History

Volumn 48, Issue 1, 2006, Pages 39-98

  Conklin, Carli N ^a  

^a NONE

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EID: 34447522112     PISSN: 00029319     EISSN: None     Source Type: Journal    
DOI: 10.2307/25434774     Document Type: Review

References (128)

1. For the following summary, see MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860 145-55 (Harvard University Press 1977).
2. For Horwitz's discussion of Massachusetts, see id. at 151. Horwitz states that the Massachusetts judiciary sought to undermine statutory arbitration by reversing arbitration awards on technicalities and by strictly construing the arbitration statute. These points are reflective of Horwitz's broader New York discussion.
3. For Horwitz's discussion of Pennsylvania, see id. at 151-54. Horwitz states that Pennsylvania, whose antilegalism largely stemmed from Quaker doctrine, nevertheless demonstrated a hostility toward extrajudicial dispute resolution that "was similar to that in other states," with the judiciary seeking to set aside arbitration awards and discourage their use and power. Horwitz ties this hostility back to attitudes about commercial law. Id. at 152-54.
4. For Horwitz's discussion of South Carolina, see id. at 154. Horwitz asserts that the South Carolina judiciary began to intervene in arbitration awards more frequently, undermining the authority of the awards and therefore fatally weakening the incentive to make use of extrajudicial dispute resolution in the first place, particularly in disputes of commercial law.
5. Id. at 146. For a discussion of the general pattern of this change in the merchants' and judges' previous support for extrajudicial dispute resolution in America, see id. at 140, 154-55.
6. For the following summary, see id. at 151-54.
7. Id. at 140, 154-56.
8. For an insightful critique of the working out of Horwitz's thesis in New York, see Eben Moglen, Note, Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law, 93 YALE L.J. 135 (1983). Among other points, Moglen argues that Horwitz erred in asserting that a decline in reference indicated a decline in use of extrajudicial resolution in general. Moglen claims the decline was likely the result of a 1791 act that encouraged New Yorkers to use arbitration instead of reference, thus, suggesting that extrajudicial dispute resolution, in general, continued to be strong. In addition, Moglen disagrees with Horwitz's claim that the legal profession wrested several key powers away from arbitrators and referees. Rather than having these powers eliminated by a jealous legal profession, Moglen asserts that these powers were not powers traditionally exercised by arbitrators and referees in the first place.
9. Id. at 146.
10. Id. at 146-49, 151.
11. Id. at 150.
12. Id. (citing Parker v. Avery, Kirby 353 (Conn. 1787). 2 Z. Swift, A System of the Laws of the State of Connecticut 7-8, 17 (1795)).
13. Id. (citing De Hart v. Covenhaven, 2 Johns. Cas. 402 (N. Y. 1801)).
14. Id. at 149, 151.
15. Id. at 140.
16. MARY K. BONSTEEL TACHAU, FEDERAL COURTS IN THE EARLY REPUBLIC: KENTUCKY 1789-1816 14 (Princeton University Press 1978).
17. To avoid confusion, I will refer to the land that became the state of Kentucky as "Kentucky" both before and after statehood.
18. N.S. SHALER, KENTUCKY: A PIONEER COMMONWEALTH 60-67 (Houghton, Mifflin and Company, Boston and New York, and The Riverside Press, Cambridge 1884); and WILLIAM B. ALLEN, A HISTORY OF KENTUCKY, EMBRACING GLEANINGS, REMINISCENCES, ANTIQUITIES, NATURALm CURIOSITIES, STATISTICS, AND BIOGRAPHICAL SKETCHES OF PIONEERS, SOLDIERS, JURISTS, LAWYERS, STATESMEN, DIVINES, MECHANICS, FARMERS, MERCHANTS, AND OTHER LEADING MEN, OF ALL OCCUPATIONS AND PURSUITS 144 (Bradley & Gilbert, Publishers, Louisville, KY 1872).
19. SHALER, supra note 18, at 55, 80.
20. Id.
21. THOMAS D. CLARK, KENTUCKY: LAND OF CONTRAST 34 (Harper & Row, Publishers, JNcw York 1968).
22. Id. at 36.
23. SHALER, supra note 18, at 81.
24. CLARK, supra note 21, at 34.
25. Id. at 123.
26. Id. at 35.
27. Id. at 37.
28. Id.
29. Id. at 38.
30. SHALER, supra note 18, at 93, 107.
31. Id. at 107, 112.
32. Id. at 49, 50.
33. Id. at 50; TACHAU, supra note 16, at 167-68.
34. CLARK, supra note 21, at 30.
35. TACHAU, supra note 16, at 169.
36. Id. (citing Samuel M. Wilson, The First Land Court of Kentucky 1779-1780 43-47 (Lexington, KY 1923).
37. Id. (citing William Waller Hening, The Statutes at Large; Being a Collection of all the Laws of Virginia from the First Session of the Legislature, in the Year 1619, x (New York, 1823), 35-65; Littell, Statute Law of Kentucky, I, 392-464.)
38. Id. at 15. (citing David H. Flaherty, An Introduction to Early American Legal History, in Flaherty, ed., Essays in the History of Early American Law, 25; Charles Warren, The Supreme Court in United States History, I (Boston, 1926), 37; Ellis, Jeffersonian Crisis, 121; Herbert A. Johnson et. al., The Papers of John Marshall, I (Chapel Hill, NC., 1974)). Notably, the English common law included the use of arbitration. See WILLIAM BLACKSTONE, COMMENTARIES * 16-17.
39. CLARK, supra note 21, at 32.
40. Id. at 31.
41. Id. at 124. (citing Kentucky Gazette (Lexington), 24 December 1791).
42. Id. (citing 7 Kentucky Gazette (Lexington), 7 January 1792).
43. Id. at 124-25. (citing Kentucky Gazette (Lexington), 15 October 1791; "Rob the Thrasher,"; Kentucky Gazette (Lexington), 17, 24 December 1791).
44. Id. at 125. (citing Kentucky Gazette (Lexington) 18 February 1792 and 24 September, 1 October, 1791; "The Disinterested Citizen," Kentucky Gazette (Lexington), 22, 29 October, 31 December 1791, and 25 February 1792; "Little Brutus," Kentucky Gazette (Lexington), 17, 24 December 1791; "X.Y.X.", Kentucky Gazette (Lexington), 18 February 1792).
45. Id. (citing "Felte Firebrand," Kentucky Gazette (Lexington), 12 November 1791; "The Disinterested Citizen" Kentucky Gazette (Lexington), 22 October 1791).
46. RICHARD E. ELLIS, THE JEFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG REPUBLIC 139-142 (Oxford University Press 1971). In order to win popular support, the moderates asserted that the radicals were against private property rights, an assertion that the radicals denied. See id. at 142, 146.
47. Id. at 142-43. (citing "A Voter," ibid., 17 April 1798; William Warfield to John Breckinridge, 22 April 1798, Breckinridge Papers, LC).
48. Id. at 143. (citing "A Voter," Stewart's Kentucky Herald (Frankfort), 17 April 1798; "A Friend to Senates," Kentucky Gazette (Lexington), 25 April 1798; "Cassius," ibid., 2 May 1798; H. Marshall, History, II, 246-47).
49. Id. at 147.
50. Id. at 147-48 (citing "Notes on the Debates," 30 July-2 August 1799, Breckinridge Papers, LC; Joseph H. Parks, Felix Grundy (Baton Rouge, 1940), 12-13).
51. Id. at 125-26.
52. HORWITZ, supra note 1 at 146-48. Horwitz terms this type of antilegalism as "compatible" with mercantile antilegalism.
53. ELLIS, supra note 46, at 130. Disputes over competing land claims are replete throughout the early published state court decisions and land disputes dominated the federal court docket as well, comprising almost half of all private suits brought to federal courts in Kentucky from 1789-1816. TACHAU, supra note 16, at 167.
54. Id. at 134. (citing W.R. Jillson, The Kentucky Land Grants (Louisville, 1925); Connelly and Coulter, History of Kentucky, I, 212-220; Francois Andre Michaux, "Travels to the West of the Allegheny Mountains," Reuben Gold Thwaites (ed.), Early Western Travels, 1748-1846 (32 vols., Cleveland, 1934), III, 227-28.)
55. PAUL W. GATES, LANDLORDS AND TENANTS ON THE PRAIRIE FRONTIER: STUDIES IN AMERICAN LAND POLICY 21 (Cornell University Press 1973), stating in footnote 15 "Senator Clement C. Clay of Alabama used this term, not critically, in 1841, in a discussion of preemption (Cong. Globe, 23 Cong., 2 Sess., Appendix, 18 [Jan. 4, 1841])."
56. Id. at 21.
57. Id.
58. ELLIS, supra note 46, at 130, 142. See also GATES, supra note 55, at 14-15, 19.
59. Id. at 131 (citing Mss Journal of the Kentucky House of Delegates, June 1792, 7; also reprinted in Kentucky Gazette (Lexington), 23 June 1792); 135 (citing I Hughes Reports, 134-169); and 134. (citing W.R. Jillson, The Kentucky Land Grants (Louisville, 1925); Connelly and Coulter, History of Kentucky, I, 212-220.)
60. Id. at 135.
61. Id. at 136.
62. Id. at 136. (citing Humphrey Marshall, History of Kentucky, Volume II, 156-57, 169 (Frankfort, 1824)).
63. Id. at 136-37. (citing Kentucky Sessional Laws of 1795 (Frankfort, 1796), Chapter XV, Evans #30656.)
64. Indeed, my research shows that land-dispute claims formed the largest single subject of known dispute in arbitration cases brought to court in Kentucky between 1780-1860. (Table Presented)
65. ACTS OF 1795, Ch. 9. To ease the reading of these statutes, I have replaced the 'f' marking given for the 's' sound with 's' when necessary to comport with contemporary spelling.
66. Id. (Preamble).
67. Id. at § 1.
68. Id.
69. Id.
70. Id.
71. Id.
72. Id.
73. Id. at § 2.
74. Id.
75. Id.
76. Id. at § 3.
77. Id. at § 5.
78. ACTS OF 1796-1797, Ch. 15.
79. Id. at § 2.
80. Id.
81. ACTS OF 1ST SESSION, 1798, Ch. 25.
82. It did not, however, repeal the Act of 1797, which gave guardians the authority to submit their wards' land disputes to arbitration. See Galloway's Heirs v. Webb, 3 Ky. 326, 332 (Ct. App. 1808).
83. An Act Concerning Awards, supra note 81, at §§ 1, 2, 6.
84. Id. at § 3.
85. RICHARD H. STANTON, THE REVISED STATUTES OF KENTUCKY, APPROVED AND ADOPTED BY THE GENERAL ASSEMBLY, 1851 AND 1852, AND IN FCORCE FROM JULY 1, 1852 WITH ALL THE AMENDMENTS SUBSEQUENTLY ENACTED, AND NOTES OF THE DECISIONS OF THE COURTS OF APPEALS OF KENTUCKY, VOLUME I, (Robert Clarke & Co., Cincinnati, 1860) (hereinafter REVISED STATUTES). The version of the Revised Statutes that is cited here appears to be the original Revised Statutes from 1852 with amendments and notes of court cases added at the end of each section. Id. at 129, § 499.
86. Id. at VIII, 181-184.
87. M.C. JOHNSON, ET AL., CODE OF PRACTICE IN CIVIL AND CRIMINAL CASES, FOR THE STATE OF KENTUCKY 129-131 (A.C. Hodges, Public Printer, Frankfort, 1854) (hereinafter CODE OF PRACTICE). The preface to this volume provides a history for the Kentucky Code. This same language concerning arbitration was adopted under section 499 in subsequent versions of the Code of Practice. The headnote summary of this text describes the procedures for arbitration as follows: "§ 499. Proceedings to be according to chapter 3 of Revised Statutes. 1. Manner of submitting controversy by rule of court. 2. The arbitrators to be sworn. Their oath. May examine parties on oath. 3. May issue subpoenas for witnesses, and report to court the failue [sic] of witnesses to attend or testify. 4. Personal representatives, committees, and guardians may make a submission. 5. If arbitrator refuses to act, reference may be set aside. 6. Trial before arbitrators, and their award. 7. How the award to be made the judgment of the court. 8. No award to be set aside for defect of form. Courts of equity to have jurisdiction over awards. 9. Matters in justice's jurisdiction may be submitted by rule or order injustice's court, on which same proceedings may be had. Subject to appeal."
88. Id. at 129, § 499. The omission of "of chancery" may have been to distinguish the already existing dual law and equity functions of the Court of Appeals from the equity function of the newly created Louisville Chancery Court. The Court of Appeals was granted jurisdiction in both law and equity under Article V. Section 1 of the First Constitution of Kentucky (June 1, 1792). This power was re-asserted through Article IV, Section 1 of the Second Constitution of Kentucky (August 17, 1799) and Article IV, Section 1 of the Third Constitution of Kentucky (June 11,1850). A new court called the Louisville Chancery Court was established in 1835 and then included in Article IV, Section 40 of the Third Constitution of Kentucky (June 11, 1850). It is possible that it was deemed necessary to remove "of chancery" from the Revised Statutes as a way to ensure that the language would not be misconstrued to mean that only the Louisville Chancery Court would be able to exercise this power of equity. Whatever the reasoning, the language changed from "No award shall be set aside for the want of form; but courts of chancery shall have power over awards on equitable principles as heretofore" in the Revised Statutes to "No award shall be set aside for the want of form, but courts shall have power over awards on equitable principles as heretofore" in the Code of Practice. See REVISED STATUTES, supra note 85, at Ch. 8, § 8 and CODE OF PRACTICE, supra note 87, at § 499.
89. Land claims formed the basis of dispute in 33 of 114 reviewed cases. Merchant disputes formed the basis of 8 cases, and an additional 31 cases addressed a variety of issues including water rights, slave owners' property rights, and disputes over the formation of turnpikes and railroads. Each of the remaining 42 cases did not provide enough information in the opinion to determine the basis for dispute. See Table, supra note 64.
90. Sections cited are from the CODE OF PRACTICE. Supra note 87 at 205-06, § 499, Ch. 8, Ti. 10.
91. Id. See case law notes included in the appendix to this source.
92. JAMES W. GORDON, LAWYERS IN POLITICS; MID-NINETEENTH CENTURY KENTUCKY AS A CASE STUDY 152 (Garland Publishing, Inc., New York 1990).
93. Id. at 152. (citing Louisville Journal, 26 October 1849).
94. Id. Gordon states here that the proposal failed and was not brought up again.
95. SHALER, supra note 18, at 51. This continued dispute over Kentucky land claims throughout the nineteenth century is also chronicled in the previously mentioned "Tenants of the Log Cabin," GATES, supra note 55, at 13-47. A claimants' law was passed on Feb. 21, 1797 that gave the occupying settlers, if ejected, the value of their improvements and charged them for any damages to the land. More occupancy laws followed and by 1820 Kentucky had created statutory enactments granting "the right of occupants with a color or title to their improvements and the right of settlers on privately owned land, unchallenged for seven years and paying taxes thereon, to a firm and clear title to their land no matter what adverse titles might be outstanding." Id. at 27. During the Panic of 1819, Kentucky split over debtor relief legislation with the Relief Party consisting of "debtors, several eminent lawyers, and a large majority of the population" and the Anti-Relief Party consisting of "the mercantile class, the lawyers and judges, and the larger farmers." Id. at 28-29. In response to the Court of Appeals striking down a replevin law, the legislature abolished the court, and replaced it with judges more favorable toward relief legislation. Then, in the case of Green v. Biddle, 8 Wheaton 11 (1823), the United States Supreme Court found that the Kentucky statutes on occupancy violated Article Seven of the Virginia-Kentucky compact. Kentucky land claims were once more thrown into confusion. Governor Charles Scott and conservative leaders in the legislature had questioned the constitutionality of the occupancy laws as had many of the large property owners but the laws continually had been upheld by the Kentucky Court of Appeals. The United States Supreme Court decision instigated great conflict. The Governor and the Legislature opposed the Court's decision and Kentucky secured an (ultimately unsuccessful) rehearing of the case. It was believed that, "[b]y thus applying the harsh doctrines of common law to the occupancy statutes of Kentucky, the [United States Supreme] Court threatened to destroy all equity in improvements settlers had made on land having prior claimants." Id. at 37. Kentucky did not accept the United States Supreme Court's decision and in 1824 the Kentucky Court of Appeals upheld the occupancy law of 1812 and said it was not inconsistent with the Virginia compact. Kentucky said that there was no question that the Act of 1812 was constitutional and, subsequently, an 1824 act was passed to undo Green and to uphold the rights of occupying settlers at the expense of absentee landowners. Absentee landowners liked Green and tried to take their cases to federal courts for friendlier rulings but even there they did not receive much support. For the preceding discussion, see GATES, supra note 55, at 13-41.
96. Of 114 arbitration cases reviewed from 1780-1860, 33 (approximately 29%) revolved around land-dispute claims. The actual percentage may be even higher given the fact that disputes of 42 cases were not discernible. Of the 72 arbitration cases whose disputes were discernable, 33 (approximately 46%) revolved around land-dispute claims. See Table, supra note 64.
97. HORWITZ, supra note 1, at 150.
98. Id. at 154 (citing a note to Alken v. Bolan, 3 S.C.L. (1 Brev.) 239, 240 (1803)).
99. Id. at 155.
100. Id. at 152 (citing Gross v. Zorger, 3 Yeates 521, 525, 526 (Pa. 1803) and Dixon v. Morehead, Addison 216, 224 (Pa. 1794)).
101. To test the attitudes of the emerging legal system toward extrajudicial dispute resolution in Kentucky and New Jersey, I have relied heavily on cases dealing with extrajudicial dispute resolution. I attempted to focus on cases stemming from these states' high courts of law. For New Jersey, that included cases from the New Jersey Supreme Court. Since Kentucky's state reporter system does not include cases from its high court of law in this time period, I relied solely on cases reported in the Court of Appeals, Kentucky's court of last resort for both law and equity. Since it was not always clear whether a given case was on appeal from law or equity, I have attempted to include all relevant cases that made their way to this court in this time period, whether law or equity. A Kentucky statute which broadly upheld the validity of arbitration and arbitration awards contained a provision that allowed courts of equity to retain their "power over awards, arbitraments or unipirages." (An Act Concerning Awards, supra note 81, at § 6). New Jersey courts of equity also may have retained a similar authority over arbitration. One would need to delve into New Jersey equity case law to determine what impact such an authority may have had on the use of arbitration. Unfortunately, equity case law from New Jersey's highest equity court is only available in the New Jersey state reporter system from 1830 forward and, for equity opinions in New Jersey's court of last resort, from 1847 forward.
102. 3 Ky. 396 (Ct. App. 1808).
103. Id. at 410-11. An award would not be enforced, however, if a party who submitted a portion of land to arbitration had no authority over the land he submitted. Payne v. Moore, 5 Ky. 163 (Ct. App. 1810). These cases seem to be in keeping with Kentucky's need to settle land disputes fully and finally.
104. 5 Ky. 456 (Ct. App. 1811).
105. Id. at 457. See also Williams v. Davis, 25 Ky. 533 (Ct. App. 1829) (award upheld in spite of mistake of judgment by arbitrators).
106. 5 Ky. 456 at 458.
107. Id. at 458.
108. 6 Ky. 41 (Ct. of App. 1813).
109. Id. at 45. See also Clarke v. M'Kinney. 12 Ky. 195 (Ct. App. 1822) (award upheld in spite of objections of fact).
110. Irvine's Heirs v. Crockett, 7 Ky. 437, 438 (Ct. App. 1816).
111. Id. at 438. See also Lillard v. Casey, 5 Ky. 459 (Ct. App. 1811) (court refused to set aside award at request of one party after award was made a decree of the court).
112. 4 Ky. 524 (Ct. App. 1809).
113. 5 Ky. 165 (Ct. App. 1810). Similarly, the court refused to hear an action by one party to compel the other party's performance of the award when the first party had not performed on the award as required. Fleming v. Chinowith, 2 Ky. 17 (Ct. App. 1801).
114. In Singleton, one party objected to the award after it was delivered to the court, claiming that the lower court did not grant him adequate time to gather proof. The Court of Appeals held that the objector should have brought an affidavit stating that his objections "were probably true" in order to cause delay in the finality of the award. Since the affidavit was not brought, the award was upheld.
115. These cases seem to apply to arbitration awards the general court rule that a decision cannot bind individuals who were not parties to the suit. See Hay v. Cole, 50 Ky. 70 (Ct. App. 1850) (award struck down because issued against a party not a plaintiff in the original suit, which had been submitted to arbitration); Galloway's Heirs v. Hill, 7 Ky. 475 (Ct. App. 1816) (arbitration between Galloway's heirs and Hill struck down because the original suit was between Hill and Galloway, not Hill and Galloway's heirs); Smith v. White, 40 Ky. 16 (Ct. App. 1840) (a wife who was not a party to the original suit could not be bound by the award); Lemon v. Cherry, 4 Ky 253 (1808) (a principal will not be held to an award when he did not give his agent authority to submit the dispute to arbitration); Waggener v. Bell, 20 Ky. 7 (Ct. App. 1826) (action of assumpit not permitted to discharge a claim against an individual not party to the arbitration and award). But see Keith v. Gore, 24 Ky. 8 (Ct. App. 1829) (in order to quiet title, a party in a land-dispute arbitration was assumed to represent intermediate buyers prior to himself). Perhaps to provide certainty of intent to submit, the court did require in one case the submission be by deed, and not by oral agreement, in specialty cases. Logsdon v. Roberts' Exec., 19 Ky. 255 (Ct. App. 1826).
116. See Martin v. Oneal, 12 Ky. 54 (Ct. App. 1822) (award can not be valid subsequent to the original award since the arbitrators' authority ceased with the original award); Lansdale v. Kendall, 34 Ky. 613 (Ct. App. 1836) (arbitrators can not issue awards subsequent to the original award or change the decision in their original award); Brown v. Warnock, 35 Ky. 492 (Ct. App. 1837) (alterations to a submitted award will render the award invalid if the alteration is of a material part and was conducted without consent of both parties); Cleaveland v. Dixon, 27 Ky. 226 (Ct. App. 1830) (if one or more arbitrators has had a change of opinion, the arbitrators must acquire the parties' consent before changing the award). On a different jurisdictional issue, the court held that an order of reference could be set aside when the referees refused to act and that the parties' consent must be acquired before new referees could be appointed in their place. Adams v. Essex, 4 Ky. 149 (Ct. App. 1808).
117. 15 Ky. 262 (Ct. App. 1821).
118. Id.
119. 9 Ky. 435 (Ct. App. 1820).
120. Id. at 438.
121. Id.
122. Id. For another example of court deference, see Brown v. East, 5 Ky. 405 (Ct. App. 1827) (court upheld a previous arbitration and award that had resolved part of a current controversy, regardless of the fact that the records had been lost.)
123. Frost v. Smith's Heirs, 30 Ky. 126, 127-128 (Ct. App. 1832).
124. As stated previously, in Baker's Heirs v. Crockett, 6 Ky. 41, 45 (Ct. App. 1808), the court held that an award at common law or statute could not be set aside for a plain mistake in the body of the award. See also Lillard v. Casey, 5 Ky. 459 (Ct. App. 1811) (a party to an award can not resort to court because of an arbitrator mistake on legal issues or the admissibility of evidence). For more on evidence, see Offut v. Proctor, 7 Ky. 252 (Ct. App. 1815) (the fact that the arbitrators had heard evidence on matters not included in the submission did not make the award void, even if the arbitrators exercised misjudgment in hearing the evidence, since arbitrators had the power to decide what evidence was competent or relevant). The ability of arbitrators to determine what evidence they should hear was affirmed in Hording v. Wallace, 47 Ky. 536 (Ct. App. 1848). Although, in 1829, the court in Callant v. Downey , 25 Ky. 346, 348 (Ct. App. 1829) struck down an arbitration award for an evident mistake on the face of the award, the court seemed to clarify its hesitancy to strike down arbitration awards in the 1830 decision of Cleaveland v. Dixon, 27 Ky. 226 (Ct. App. 1830). In Cleaveland, the court reaffirmed that an award would not be set aside for a mistake or a misjudgment unless the mistake or misjudgment was clear on the face of the award and operated to transform the award into something other than what the arbitrators had intended. 27 Ky. at 228. The protection here seems to be against the type of mistake that would transform the award itself into something the arbitrators themselves had not intended it to be. The court used Cleaveland to delineate its position on mistakes in arbitration awards, citing the previously mentioned cases of Baker's Heirs, Ewing v. Beauchamp, and Offut v. Proctor in its statement that: "Arbitrators constitute a cheap domestic tribunal, chosen by the parties themselves; and no appeal lies from their judgments. If they misjudge the law, or misconceive the facts, without any improper interference by either party, or any improper conduct in themselves, their award can not be set aside merely for such misjudgment, or mistake also, unless the award itself show the mistake; nor will a mistake, apparent on the face of the award, be sufficient for setting it aside, unless it is of such a character as to show, that the deduction of the arbitrators, was a mistaken inference from the facts, or that the facts themselves did not authorize the conclusion drawn from them, and, that therefore, the award is not what the arbitrators intended that it should be." 27 Ky. at 228 (Ct. App. 1830).
125. In McCawley's Adm'x v. Brown's Adm'r, 51 Ky. 132 (Ct. App. 1851), the arbitration was struck down because of multiple issues where the arbitration had not been conducted properly, and most notably, where the arbitrator did not have the proper authority to act over an estate. See also Maysville. W., Pl, & L., Turnpike Road Co. v. Waters, 36 Ky. 62 (Ct. App. 1837) (affirmed the overturning of an award in light of several issues, including a claim that the award was made ex parte, a claim that one party was not given notice, alleged bias of the arbitrator, mistakes of law and fact, and the fact that there had been no request by the parties to submit the dispute to arbitration).
126. See Callant v. Downey, 25 Ky. 346, 348 (Ct. App. 1829) (award will not be upheld where there is fraud); Hickey v. Grooms, 27 Ky. 124, 125-26 (Ct. App. 1830) (the fact that evidence was heard by only one arbitrator resulted in "undue means" of settlement that was fatal to the award); and Henderson v. Buckley, 53 Ky. 236 (Ct. App. 1853) (court held that the arbitrators must all hear the evidence and act on the award together); Blanton v. Gale, 45 Ky. 260, 264 (Ct. App. 1845) (award fails because arbitration submitted to two arbitrators but at least some evidence heard only by one); Morrison's Ex'rs v. Barnett's Comm'rs, 5 Ky. 270 (1811) (commissioners appointed by special statute to convey a piece of land must act jointly to submit any controversies to arbitration).
127. Collant, 25 Ky. at 348.
128. 36 Ky. 9, 10 (Ct. App. 1837).