In the construction of contracts, regard should always be paid to the intention of the parties; and that intention should be ascertained by a consideration of the whole instrument. In this case the parties were litigating their rights in a court of law. It was manifestly their intention to put an end, not only to the existing suit, but to all further litigation arising out of the same subject matter. To this end they agreed to refer this action to the arbitrators, to abide their award, to withdraw the suit from court, and the plaintiff warranted against any further proceedings, pertaining to his bill, adverse to the brig Itasca and owners.

These several propositions are evidently dependent upon each other. It was intended by the parties to be in full, not a partial settlement of all matters in relation to plaintiff’s claim upon the Itasca and her owners. The determination of the pending action was the basis upon which all the other agreements depended.

Neither party had the power to compel the arbitrators to *105accept the trust confided to them. The refusal of those arbitrators, or either of them to act, rendered it impossible for the parties to proceed under their agreement, and consequently discharged the agreement itself. Whether there was a refusal on the part of either of the arbitrators to act in the premises, was matter of fact, simply. This fact was properly left b y the Court to the determination of the jury.

Exceptions overruled.