Inhabitants of Cumberland v. Inhabitants of North-Yarmouth

• Decision Date: 01 May 1827
• Citation: 4 Me. 459
• Parties: THE INHABITANTS OF CUMBERLAND, plfs. in error, v. THE INHABITANTS OF NORTH-YARMOUTH
• Court: Maine Supreme Court

4 Me. 459

THE INHABITANTS OF CUMBERLAND, plfs. in error, v. THE INHABITANTS OF NORTH-YARMOUTH

Supreme Judicial Court of Maine, Cumberland

May, 1827

[Syllabus Material][Syllabus Material]

ERROR to reverse a judgment of this court, rendered at November term 1824, upon a report of referees.The original action was assumpsit, brought by the town of North-Yarmouth, to recover the sum of 1975 dollars, awarded by commissioners appointed by the special statute of 1821, ch. 78, sec. 9, dividing that town, and incorporating the town of Cumberland.At November term 1823, the suit was referred by rule of court, to the same commissioners, viz.Nathan Elden, John Perley, and Ebenezer D. Robinson, Esquires, with power also to consider other claims and demands subsisting between the two towns.The report of the referees, being made at May term 1824, in favor of North-Yarmouth, for $ 918,11, was contested on the merits, and recommitted.At November term 1824, another report was made by Perley and Robinson, two of the referees in which they stated that Mr. Elden, the chairman, having refused to notify either the parties or the other referees, or to fix any time or place for the meeting; they, the other two referees, had appointed a time and place for a further hearing, of which they had given notice both to the parties, and to the other referee; --that the agents of North-Yarmouth attended; but after some time had elapsed the attorney for Cumberland informed them that the inhabitants of that town would not appear; --that thereupon the agents of North-Yarmouth stated that they would not offer any further evidence, nor again argue the cause; but would submit it on the evidence already before them, requesting that the referees would take it into consideration, and make such report as the justice of the case might require; --that thereupon, in the absence of Mr. Elden, who did not attend at this sitting, they carefully examined all the evidence in the case, and maturely weighed the same, and the allegations of the parties previously made; and awarded that North-Yarmouth should recover of Cumberland $ 1622,95, including interest, with costs of court; and $ 126,47 for the former costs of reference, and the further sum of $ 27,32 for costs of this last hearing.In the former report, made by all the referees, it was awarded that fifty dollars of the costs of reference should be paid by North-Yarmouth.

The latter report, made at November term 1824, was accepted by the Chief Justice, and judgment rendered thereon; which the town of Cumberland sought to reverse.

The errors assigned were, in substance, that the court had recommitted the report, after all the referees had expressed their opinion; --that it did not appear for what reason it was recommitted; --that it did appear that two of the referees had usurped the right to regulate the time and place of meeting, before the chairman had an opportunity of declining the office of referee in open court; and that in his absence, they had undertaken to revise the essential merits of the case, and make a new report, different from the former; and this, after their jurisdiction was expressly denied by the town of Cumberland; --and that it did not appear that the chairman refused the office of referee; but only that he declined to give notice and meet them at that particular time.

N. Emery and Greenleaf argued for the plaintiffs in error.1.The jurisdiction of two of the referees over the merits of the case was expressly denied by the plaintiffs in error; and this, quoad hoc, was a revocation of their authority.There is no submission, either at law or in equity, which is not revocable.3 Vin. Abr. 131.ArbitrementH. a. pl. 2. I. a. pl. 18 Milne v. Gratrix7 East 608.Vynior's case8 Co. 81.Skinner v. Dayton19 Johns. 538.And it is not necessary that the revocation should be by deed.The marriage of a woman who was one of two defendants was held a revocation as to both.3. Vin.Abr. 434.Authority I. pl. 4.So where one had judgment in ejectment, and submitted the matter, and then sued out execution; this was held a revocation.Green v. Taylor T. Jones 134.And if the party may not revoke his consent before the referees proceed to act, yet he may refuse them the power to act again.

2.The error alleged in the original report was matter of substance; yet the court recommitted it generally, without the defendant's consent.Snyder v. Hoffman1 Bin. 43.Shaw v. Pearce4 Bin. 485.But an arbitrator cannot, after award made, exercise a new and distinct act of judgment, without consent of the parties.It is a power which the court cannot confer.Henfree v. Bromley6 East 309.He cannot even correct an error of calculation;Irvine v. Elnon8 East 54; nor explain doubtful matter;Eveleth v. Chase17 Mass. 458; nor correct a mistake;Scott v. Wray1 Chan. Rep. 45.Caldw. on Arb. 173.Woodbury v. Northey 3 Greenl.85.The power of the court is derived wholly from the consent of the parties, and extends no farther.Even the arbitrators themselves cannot reserve the power of judging again.Winch v. SaundersCro. Jac. 584.Nor can they delegate their authority, even to one of their own number; as, to award that one party should make such a release as one of the arbitrators should approve.3 Vin. Abr. 65 Arbitr. H. 15.

3.But if the court have authority, generally, to recommit a report, against the will of a party, who may have invincible objections to a referee; then referees are placed on the footing of jurors; and what will disqualify the one, ought to be sufficient to set aside the other.Williams v. Craig1 Dal. 315.Now here the two arbitrators had already formed and expressed an opinion on the whole case; and therefore were unfit to try it again, without consent of both parties.

4.The award is bad, because made by two of the referees, who, in the absence of the third, assumed to revise the merits of the case.All must hear the parties; and deliberate on the merits; for the arguments of the dissenting referee might have an influence on the judgment of the others.Short v. Pratt6 Mass. 496.Walker v. Melcher14 Mass. 148.After a recommitment, two may return the report without alteration; but they are not competent to alter it.May v. Haven9 Mass. 325.Peterson v. Loring 1 Greenl.64.Now here, two of the referees acted on the subject of interest, which was excluded in the former report; and also adjudicated upon the whole matter; as is apparent from the very great difference between the two sums awarded; and this too, when the absent referee had not refused the office, but had only declined to call a meeting and attend on that particular day.

Orr, Longfellow and Fessenden, argued for the defendants in error.1.The authority of the referees is to be found in the original submission, by which the report of any two of them was to be binding and final.The parties have a right to a hearing before all the referees; but when all have once heard them, the power to make an award is devolved on a majority.If it be not so, then one may always absent himself after the first hearing, and defeat the award.And if the majority are competent to act in the absence of the third referee at one time, they are equally so at all times after the cause is once heard by all.Their jurisdiction, once given, continues till the cause is determined by a final award; and enables them to do every act which could be done by the three.Short v. Pratt6 Mass. 496.Of course they are competent to revise the whole subject matter.2 Barnes' Notes, 53, 57.Dalling v. Matchett, Willes 215.

2.The authority thus given, it was not in the power of either party to revoke.The referees were amenable to the court alone; were liable to an attachment for contempt; and to a mandamus if they refused to act.Haskell v. Whitney12 Mass. 47.

3.There was no error in the recommitment of the report; the court having that authority, by the common law of the State.And as neither party entered a dissent upon the record, which they might have done, if dissatisfied, it must now be taken to have been recommitted by consent, if any consent was necessary; both parties having been present at the time.Whitney v. Cook5 Mass. 139.Boardman v. England6 Mass. 70.

WESTONJ. MELLEN, C. J., dissents.

OPINION

After this argument, which was heard at May term 1826, the cause was continued for advisement, and the opinion of the court, the chief justice dissenting, was delivered at June term 1827, in Kennebec, by WESTON J.

Under the first error assigned, it has been contended that the referees had no power to proceed to make a second report after the recommitment, because their authority had been revoked by the plaintiffs in error.It was resolved in Vinyor's case, cited in the argument, that an authority countermandable by the law, cannot in any way be made irrevocable.Hence, it was there decided that if one becomes bound to abide the award of an arbitrator agreed upon, and afterwards revokes the submission, such revocation is good, although the bond is forfeited.And this principle has been recognized in subsequent cases.But in Milne v Gratrix, cited from7 East 608, Lord Ellenborough says, after the submission is made a rule of court, the party cannot rescind it, without incurring a breach of that rule.It would seem therefore from this authority, that a submission once made a rule of court is no longer countermandable by the law; the party attempting to countermand it being liable to an attachment for a contempt; which is the coercive process by which rules of court are enforced in England.And in Haskell v. Whitney12 Mass. 47, it was decided that where an action has been referred by a rule of court, neither party has a right, without the consent of the...