Estice v. Cockerell ( 1853 )

Mr. Justice Handy

delivered the opinion of the court.

The defendant in error sued the plaintiff in error for rent of a-tract of land; and the matter was submitted to certain persons, as referees under the statute, with power to select an umpire in case of inability to agree upon Jheir award. The record shows that the four referees named in the submission, and another person, acted in the matter of the arbitration, and all signed the award; but it does not appear that the fifth person was selected in consequence of the inability of the others to agree. It appears that the party contesting the award was present during the time the arbitrators were acting, and that he made no objection to the fifth person acting. When the award was returned to the circuit court, the defendant moved to set it aside, because one of the referees had stated that the award was founded alone on the testimony of two witnesses who testified before the arbitrators, and who stated on their voir dire, “that they were'interested in the subject-matter of the suit, in this — they held the title to the land mentioned or charged to have been rented — that they were, if the land had been rented according to agreement, to have the rent notes, if any were taken, made payable to them; ” and defendant thereupon objected to the admission of the testimony of these witnesses before the arbitrators; but it was admitted. Testimony to this effect was introduced on the motion to set aside the award, but the motion was overruled; and the case is, therefore, brought to this court.

The first objection here urged is, that the testimony of the two witnesses before the referees was inadmissible for interest. It appears that they were interested in the subject-matter of the suit, the land; but they had no disqualifying interest in the result of the suit. In certain contingencies, to wit, “if the land had been rented according to agreement,” and if any notes for the rent had been taken, the notes were to have been made payable to them, they being the owners of the land. But no notes appear to have been taken, and this suit is not founded on any note, but on a parol contract for rent. No interest whatever on their part is shown in the result of this suit; and the objection to the competency of the witnesses was properly overruled.

Another objection made to the award is, that the fifth person, who was neither a referee nor an umpire duly chosen by the arbitrators, joined in the award. It would be a sufficient answer to this objection, that it was not made in the court below, and cannot be entertained here. But, apart from this, the facts of the case preclude the defendant from making the objection. He appeared before the arbitrators, including the fifth person, and submitted the matter in controversy to their decision without objection, and represented his interest therein. After that, it is too late to say that one of the persons, acting as arbitrator under the party’s sanction, was incompetent to act. Underhill v. Van Courtlandt, 2 J. C. R. 339; Matson v. Trower, 1 Ry. & Mood. 17 (21 Eng. C. L. R. 371); Rison v. Berry, 4 Rand. 279.

Nor is it any objection that the award was signed by a mere stranger, as it was signed by the four referees duly appointed. It was, therefore, the act of the person^ clothed with legal authority, which is not vitiated by the circumstance of an unauthorized person joining in it. Beck v. Sargent, 4 Taunt. 232; 4 Rand. 275.

The judgment is affirmed.