Field v. Bissell , 36 Me. 593 ( 1853 )

Tenney, J. —

By the R. S., c. 138, § 2, the parties may sign and acknowledge an agreement, to submit any demand existing between them to referees; the report of whom, or the major part of whom, being made within one year, from the day of the date of the agreement, to the District Court for the county, named in the submission, the judgment shall be final.

These parties submitted in this mode demands claimed by one and the other, on May 10, 1850. The referees made an award, after two hearings of Field, at neither of which Bissell was present, purporting to be signed, on May 5, 1851 ; but the Court to which it was returned did not hold its next regular session afterwards, till May 27, 1851. The report of the referees was offered on the fourteenth day of that term. The matter was recommitted for want of sufficient notice to Bissell, to appear before the referees. On a hearing after-wards of Field, Bissell appeared and denied the power of the referees, to proceed under the ■ submission, on the ground that more than one year had elapsed from its date, and omitted to offer any testimony. The referees overruled the objection and made an award in favor of Field, and returned the same to Court. Bissell appeared and made objections to the acceptance thereof.

The Court, referred to, in the statute and in the submission, cannot on any proper construction be the clerk of the Court, or a Judge thereof in vacation. The report must be made to the Court when holden for the ordinary business of a session of the same, within one year from the time of the submission, in order to meet the requirement.

It is contended on the part of Field, that Bissell has waived the right to make this objection, inasmuch as the matter was recommitted on another ground, and he is to be treated as if an agreement had been made by the parties, to vary the time, when the report should be made, according to the provision of the statute, c. 138, § 6. The case does not find, that the recommitment was made upon objection in behalf of Bissell ; or that he appeared in any manner at the time the report was offered. Henee he cannot be considered as having waived any right to object, even if such waiver would have given effect to any award which the referees made.

The agreement under the statute, that the award should be made within one year, is matter of substance, and cannot be disregarded. The submission, and the award under it, when the latter was made to the Court, was entirely inoperative, and the referees had no subsequent jurisdiction.

Proceedings dismissed.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.