Eddy v. Sprague , 10 Vt. 216 ( 1838 )

The opinion of the court was delivered by

Redfield, J.

The only question which arises in this case is, whether the report of the referees is within the rule of reference. This mode of trial is not very different from that by arbitrators. The award of the referees is to be accepted or rejected by the court, upon the same grounds which determine the validity of an award of arbitrators.

At common law, the parties had no power to refer, by rule of court, any other matter except the very suit pending. By the statute of 9 and 10 W. 3. c. 15. §1. it is provided, that the parties may refer to arbitration, by rule of court, any matter in dispute between them. The agreement to refer must be in writing, which is not required by our statute. In other respects, the statutes are similar in their provisions. Ansell v. Loans, 7 T. R. 1.

It has never been considered under the English statute, or at common law, that the arbitrator had any thing to do with the particular issue joined in court, or that it. was of any importance, whether any issue was joined previous to the reference, It is customary there to enter up a verdict for the plaintiff, for the full amount of the damages claimed in the declaration, subject to the award of the arbitrator, to whom the case is referred. But this is done to save the lien. upon the bail. 2 Saunders, 72. C. 2 Petersdorff, 109, and notes. This, however, is never supposed to be important to the validity or conclusiveness of the proceedings.

If the declaration or other pleadings are defective, the defendant cannot, on that account, move in arrrest of judgment. If the case is referred, standing on the plea of a release, it is competent for the arbitrator to try “ the case” on any other issue. The declaration is important only, in order to determine the extent of the submission, and with this view, a copy of it is, in practice, usually attached to the rule issued by the clerk. But it was never known that any other part of the pleadings was copied into the rule, which is the authority for the referees to proceed. It is clear, then, that the reference of a cause, by rule of court, is not, with us, considered a reference of the particular issue joined in court. It is a reference of the whote cause to be tried on the merits.

It is evident that the referees, in this case, made an award in favor of the plaintiff, upon testimony which could not have been received in court, without an amendment of the declaration. The declaration is, in form, assumpsit, and no scienter is alleged. The plaintiff is, in such case, held to proof of an express promise. Shepherd v. Worthing, 1 Aikens, 193. Butin assumpsit even, if the scienter be alleged, proof of fraud, from which a promise is implied, will be received. But had this case been on trial in the county court, and the same proof offered to support this declaration, it must have been rejected on the ground of variance. In such case, however, the court will always allow an amendment upon some terms, which the referees could not do, which shows, in a very strong light, the absurdity of holding the referees to the trial of the only issue joined in court, over which they have no control, and with which they have no concern.

If the declaration be ill tort, or for a false warranty, the plaintiff may sustain his action by proof, either of an express warranty or fraud, even in court. Beeman v. Buck, 3 Vt. R. 53. Williamson v. Allison, 2 East. 450. And whether the declaration be in tort or assumpsit, if referred, it is the case, and not the particular issue, which is to be determined.

And although the referees report, that they intended to proceed “ according to law,” it is not every deviation from 1 ° the strict' rules of technical law which will avoid their award. It must be some fatal and evident mistake in the application of principles, by which they intended to be governed, and which goes to the merits of the action or matter referred. Learned v. Bellows, 8 Vt. R. 79.

The parties having selected their tribunal,and invested them with an absolute discretion, so that they are not bound, except at their own option, even by the rules of law, the court should not be very nice in searching out circumstantial defects in their proceedings. If they have not violated any of the known and acknowledged principles of right and justice, and have not been misled by the application of their own rules, their report should be accepted.

Judgment of the comity court affirmed.