Boyd v. Stubbs

The opinion of the Court was delivered by Sergeant, J. This submission was an amicable one, created by the mutual consent of the parties to leave the decision of the matters in dispute between them to judges of their own choosing. It has none of the features of a compulsory arbitration under the act of 20th March 1810, by which, as either party might compel a reference against the will of the other, an appeal is allowed. Before the act of 1810, an appeal from an award of arbitrators was never heard of, and since that act it has taken place only under its provisions. Being thus an amicable reference, in a suit pending, of all matters in variance between the parties, it falls within either the act of 1705, or the act of 1806, and its supplement; and it can make no difference as to the right of appeal claimed, which of these acts embraces the present case, because neither of them authorises an appeal. It has not been pretended that the arbitrators could authorise an appeal by any direction of theirs annexed to their award. The main ground on which the defendant insists on the validity of his appeal is, that the plaintiff’s attorney acquiesced in it, by taking out of the prothonotary’s office the costs which the defendant had paid in on his appeal; by suffering the cause to be transferred to the district court, and by permitting ten years to elapse without objection. Had the reference been under the act of 1810, these circumstances might have amounted to a waiver of an irregularity in the manner of entering the appeal, according to the decisions of this court in the cases cited. But the difficulty is that the submission and award not being under the act of 1810, the appeal was void ab initio, and could not be rendered good by lapse of time or acquiescence. A parly may, by his acts or omissions, waive an objection to irregularity in the time or mode of appealing, where the court has jurisdiction : a voidable act may be ratified. But such acts cannot confer a jurisdiction not given by law, nor make a void act valid. Quod ab initio non valet, in tractu temporis non convalescit. Then as to the objections arising on the face of the award, which is all this court can look to, when brought up by writ of error. The allegation of the defendant is that the arbitrators have charged the defendant with the individual debts of the two Boyds. I do not, however, so understand the award. It states a balance of 117 pounds 2 shillings and 8 pence due from the firm to the plaintiff, and then adds that of the whole sum of 423 pounds 5 shillings 7 and a half pence charged, Stephen Boyd, one of the firm, had received 240 pounds 19 shillings and 9 pence, and Nicholas only 22 pounds and 1 penny. This is intended, it seems to me, merely to explain [33] bow much of the debt due by the firm had passed into the hands of the respective partners. But if they received it as partners, the firm is, nowithstanding, debtor to the plaintiff for the whole, and not the members of the firm as individuals. Judgment affirmed.