Noyes v. Gould

• Decision Date: 21 March 1876
• Citation: 57 N.H. 20
• Parties: Noyes v. Gould.
• Court: New Hampshire Supreme Court

57 N.H. 20

Noyes v. Gould.

Supreme Court of New Hampshire

March 21, 1876

Referees---Misconduct when waived.

While a cause was being heard before referees mutually agreed upon in which the subject-matter in dispute was the location of a range line, a person not a party to the suit, but interested to have the line established where the defendants claimed it to be, furnished some brandy, of which two of the referees partook, in the presence and with the knowledge of both parties, and without objection from either. The award of the referees being returned into court, the plaintiffs moved to set it aside because of the furnishing of the brandy. Held the defendants not being in fault, that the plaintiffs, by having allowed the hearing to proceed without objection, must be taken to have waived the misconduct of the referees

FROM GRAFTON CIRCUIT COURT.

Motion to set aside the report of referees agreed upon by the parties, and acting under a rule of court, upon the ground that spirituous liquors were furnished them by the defendants, or those in their interests.

Prior to September term, 1873, there were two actions of trespass pending between the plaintiffs and the defendants, in which the location of the range line between certain lots of land in Bethlehem was in dispute, and the location of the same range line was also in dispute between certain other owners of adjoining lots; and it was agreed, between the plaintiffs and those claiming the line to be where they claimed it, and the defendants and those claiming the line to be where they claimed it, to refer the dispute to three referees, they to determine the location of the range line, and the questions involved in the two actions of trespass before named;---and accordingly, at the September term, 1873, a rule was issued to the referees agreed upon. After due notice, and a full hearing of all the parties, but without counsel, the referees made an award in favor of the defendants.

It appeared in evidence, that, while the referees were making an examination of the lines, Gould, one of the defendants, went to notify one Libbey, one of the parties in interest on the side of the defendants, that the referees would be upon his lot the next day. This notice was given in presence of one of the referees, who remarked that if he (Libbey) came out there the next day, and did not bring something to take, meaning some spirituous liquor, he (Libbey) need not expect to get back alive. The next day Libbey appeared upon the line, and while the referees and the parties were at dinner, he produced a bottle of brandy, and passed it round, and two, at least, of the referees, in the presence, with the knowledge, and without objection from

any of the parties, drank. There was no concealment of the liquor, and none of the parties were intoxicated. During the afternoon, the bottle was carried by one of said two referees; but the evidence tended to show that he did not drink again till after the hearing was completed for the day. It also appeared that, the day before, one of the plaintiffs brought out some new cider, just made, which was passed round, and from which any one who chose drank; but it was not intoxicating.

No objection to the use of the cider or the brandy was made until the report came in, when the plaintiffs, being dissatisfied with it, on this ground among other things, moved to set it aside.

The court denied the motion, and the plaintiffs excepted.

The questions of law arising on the foregoing case were transferred to the superior court by STANLEY, J.

Bingham & Mitchell and Farr & Stevens, for the plaintiffs. Ray, Drew & Heywood, and J. L. Foster, for the defendants

SMITH J

The parties to these two suits, together with others interested in the location of the same range line, agreed to submit to the determination of three referees, mutually agreed upon, the matter in dispute, which was the true location of said line. A rule of court thereupon issued to the arbitrators thus selected, and a hearing took place before them upon the premises, in the town of Bethlehem, lasting, it is said, some four or five days, and, by further agreement, without the presence of counsel. A remark made by one of the referees to Libbey, one of the persons interested in the location of the line in dispute, but not one of the parties to these suits, in regard to furnishing spirituous liquor, was evidently jocosely made, but unfortunately was differently understood. He very foolishly procured a bottle of brandy on the following day, which was passed round while the referees and parties were at dinner, and two at least of the referees partook of its contents, in the presence and with the knowledge of, and without objection from any of, the parties. One of the two referees then carried the bottle during the afternoon, but did not drink from it again---at least, until the hearing for the day was completed. There was no attempt made at concealment, and none of those who drank were intoxicated. There is no evidence that its use had any effect upon the judgment of the referees, and there is no reason for supposing it was furnished with a view of influencing their action. All the parties allowed the hearing to go on, at very considerable expense, each taking his chance of obtaining a favorable verdict.

The report being unsatisfactory to the plaintiffs, they now move to set it aside because of the above alleged improper conduct of Libbey and of two of the referees.

When parties have selected their own arbitrators for settling their disputes, the courts are slow to set aside their decision for other than substantial reasons. It will, ordinarily, not be done, unless the court can see

that a full and fair hearing has not been had, or the conduct of the arbitrators has been such as is calculated to bring reproach upon the cause of justice, and the tribunal that may tolerate it. Accordingly, the courts of this state have set aside verdicts because of the use of stimulating liquors by a jury while deliberating upon a verdict, without first showing a case requiring such use, and procuring leave of the court for that purpose, and that without inquiring whether the use was an intemperate one or otherwise. State v. Bullard, 16 N.H. 139. They refuse to weigh and examine the quantity which may have been taken by the jury, or the effect produced---Leighton v. Sargent, 31 N.H. 119, People v. Douglas, 4 Cow. 36; and in the Newport Highway, 48 N.H. 433, where spirituous liquors were furnished by the petitioners, of which the commissioners, while engaged in the hearing, repeatedly drank, BELLOWS, J., said,---"We are constrained to regard it as an abuse that ought to find no countenance in courts of justice * *. We cannot stop to inquire as to its precise effect. * * If such practices were to be tolerated, we cannot fail to see that great injustice might sometimes be the result;---and as, from the nature of the case, it would generally be impossible to measure the extent of their influence, no other course is open to us but to discountenance wholly the practice."

If, then, the court will not look with any indulgence upon the use of spirituous liquors as a beverage by juries while deliberating upon a verdict, or upon the furnishing of them by a party to county commissioners for like use at a hearing, ought the court to look with any greater indulgence upon the furnishing of them by a party to referees whom the parties have selected to settle their disputes? These does not seem to be any reason why, ordinarily, a different rule should be observed. Juries are under the immediate control of the court, in the court-room: they have no duties to perform until they retire to consult upon their verdict, except to listen to such evidence and arguments as the court may receive. The commissioners, although chosen by the people, nevertheless act under authority from the court in the consideration of petitions in relation to highways; and for the propriety of their action the court feel, in some degree, responsible. The same is true in regard to referees. This court had "general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses---Gen. Stats., ch. 189, sec. 1; and there can be no reason why the court should refuse to rebuke the conduct of referees by setting aside their report for such abuses as tend to bring reproach upon the cause of justice. The same degree of strictness may not be practicable in the case of referees or commissioners who may, upon their own judgment, supply themselves with liquor, to be drank while deliberating upon matters referred to them, as in the case of a juror when deliberating upon a verdict; but it is quite a different matter when the liquor is furnished by one of the parties.

In this case, it appears that the liquor was furnished by one Libbey, who is not a party to either of these suits, but who was interested in the establishment of the same range line which the defendants claimed to

be the true line, and he had agreed to submit the dispute, so far as he was concerned, to the decision of the same referees. So far as the facts reported show, neither of the three...