Mooers v. Allen , 35 Me. 276 ( 1853 )

Rice, J.

— Prior to April 5th, 1850, Polly Allen, the plaintiff’s intestate, had commenced an action at law against the defendant. On that day the parties, in writing, agreed to refer that suit with the costs in the same, and all demands between the parties, to arbitrators, the report of whom, or a major part of whom, made as soon as may be convenient, to ■ be final.

This being a submission, not under the statute nor under a rule of court, but at common law, was a discontinuance of the action then pending. West v. Stanly, 1 Hill, 69; Towns v. Wilcox, 12 Wen. 503; Ex Parte Wright, 6 Cow. 399.

During the life of Polly Allen, the arbitrators, upon due notice, met the parties in interest, and after a hearing, for their own convenience and satisfaction, continued said hearing until some time in May, 1850. Before the day of adjournment arrived, Polly Allen deceased. After her decease, but prior to the third day of August, 1850, the arbitrators issued a new notice to the parties, in the'name of Polly Allen, for a further hearing, on said third day of August, and they appeared upon said notice, whereupon the defendant filed a plea in bar or abatement, to the jurisdiction of the arbitrators, based upon the fact of the death of said Polly Allen, which plea was overruled by the arbitrators, who proceeded with the hearing, and on the sixth day of the same August made an award in favor of Polly Allen, and in her name.

The plaintiff was appointed administrator of the estate of Polly Allen, July 8, 1S50, but does not appear to have taken any part in the hearing before the arbitrators, nor was his name used by them, in any of their proceedings.

The case further finds that after the agreement to refer was entered into and before the first hearing, the plaintiff’s intestate assigned all her right, title and interest in the claim, action and demand referred, to Ira Thing, who was sole owner of the same at the time of the several hearings before the arbitrators, and at the time of making and publishing their award, and that the claim was prosecuted for his sole benefit and interest.

The agreement to submit is a naked personal contract between the plaintiff’s intestate and the defendant. It contains no provisions or stipulations authorizing her assignee or other representative to act in her behalf or in her name in the prosecution of this claim before the arbitrators. Her administrator did not assume to act in the premises, nor was his name used in the proceedings. Under such circumstances the arbitrators have no authority to proceed against the protestations of the defendant. Blundell v. Bretargh, 17 Ves. 231; 2 B. &. C. 345; Story’s Pl. 167. This award therefore cannot constitute a foundation on which this action can be maintained. A nonsuit must therefore be entered.

Shepley, C. J., and Wells, Howard and Hathaway, J. J., concurred.