Howard v. Conro

After argument, the opinion of the Court was delivered by Prentiss, J. J. — The statute authorizes either the county or Su preme Court, by the consent of parties, to refer any cause pending in it, to the determination of such number of men, as shall be agreed upon by the parties; the report of whom, or a major part of them, as the parties shall agree, to be final and conclusive. When the submission is to three or more'referees, and the rule is silent as to the number that must agree, or does not expressly authorize the majority to make a réport, it is necessary that all should concur in the report. This rests upon the general principle, that where an undivided authority is confided to several persons for a private purpose, all must join in the act to be performed under it; though it is otherwise, where the power delegated is not of mere private confidence, but of a general or public nature. When the rule of reference authorizes all or a major part of the referees to make a report, as it does in the case before us, there is of course no necessity for all to agree, but a report by a majority, according to the terms of the rule, will be prima facie valid. In the case of Dalling vs. Matchett, Wittes, 215, it was determined, that when a cause is referred, under a rule of court, to three persons, and they or any two of them are empowered to make an award, an award made by two of them is good, if the third had notice of the meeting of the arbitrators, and either by obstinacy, or at the desire of the defendant, or being hindred by business, absented himself from such meeting; otherwise, the court observed, it would be in the power of one of the parties to trick the other, and entirely defeat him of the benefit of the reference, by naming an arbitrator, who, he was sure, woulij not, or could not, attend. A submission, under a rule of court, is irrevocable so much so, that the plaintiff, unless the rule is discharged, or has expired by its own limitation without being executed, cannot discontinue the action, or become nonsuit, without the consent of the defendant. — (Milne vs. Gratrix, 7 East. 608.— Haskell vs. Whitney, 12 Mass. 47.) An objection to a report, on the ground of its being made on a bearing before two of the referees only, would seem to come with an ill grace from a party, who had himself desired and caused the absence of the third, for [494] the purpose of defeating the reference ; and if the objection, urn-der such circumstances, is available, it will enable a party, though not f°rma% and directly, yet in effect, to revoke the submission. ^ however, been uniformly considered in this state, in case of a reference under the statute, that though the greater part of the referees are authorized to make a report, yet as the submission is to all of them, all must be present and hear the parties on the matters submitted ) and this appears to be the principle which is established in Massachusetts and New-York. — (Short vs. Pratt, 6 Mass. 496. — Mc'Inroy vs. Benedict, 11 John. Rep. 402.) In the former case, it was held, that it must appear, affirmatively and expressly, from the report itself, that all the referees met and heard the parties, otherwise it will be error. But in Yates vs. Russell, 17 John. Rep. 461, it was determined, that where the report is signed by two of the referees only, without stating that the third was present at the hearing, it will not be a ground of error j but if the party would avail himself of the ob» jection that all the referees did not assemble, he must raise it, on the coming in of the report, in the court to which it is returned.— This appears to us to be the more reasonable doctrine ; for though a report is made by two of the referees, in the absence of the third, it will not follow that the report, for that cause, must, at all events, be set aside, but it may, notwithstanding, under some circumstances, be binding upon the parties. Although the law in general requires, and the parties have a right to claim, the presence of all the referees in the hearing of the matters submitted, yet the parties, by an express agreement, may waive their right in this respect. If they mutually agree to dispense with the attendance of one of the referees, and in pursuance of such agreement appear and submit to a hearing before the other two, as was done in the present case, it is not competent for either party, in cur opinion, to urge the absence of the third referee as an objection to the report. In Yates vs. Russell, numerous cases are cited by chancellor Kent, in which the consent of parties has been held to*“ alter the form and course of the law and in that case it was determined, that if the parties in a suit, not referable under the statute, consent and agree that a rule of reference be entered, and that judgment may be rendered on the report of the referees,all error is cured or taken away by the consent, and a judgment on the report of the referees, pursuant to such agreement,- is as valid as if entered on a verdict. In the case of Campbell vs. Wilson, 2 Aik. Rep. 118, we referred to the cases of Wright vs. Nutt, 1 T. Rep. 388, and Coates vs. West, 2 T. Rep. 183, in which it is held, that a writ of error will not be sustained, where it is [495] brought by a party against his agreement, or that of his attorney made in the course of the action ; and we there adopted the principle, that a party is, in general, bound by a proceeding to which he has agreed and submitted, and is estopped to question its regularity. Tl. Adams, for plaintiff. A. G. Whittemore, for defendant. Judgment affirmed*