Eastman v. Burleigh

Although the rule in this case does not specify the subject matter of the controversy, yet the agreement to refer describes it as a “ certain quantity of pine timber;” and this agreement being on file with the justice, and legally a part of the record, is a sufficient explanation <rt the ground of the. reference.

Most of the decisions concerning certainty in submissions have taken place upon our statute of June 21, 1797, and not under this act of December 16, 1793. 1 N. H. Law, 89, 90.— 1 N. H. Rep. 72, 190.—5 Mass. Rep. 264.—3 ditto 398, 324.—14 ditto 43.

The former statute requires “ a particular statement” of the demands in controversy; but the latter is altogether silent on that point, and must be satisfied by any degree of certainty, which will prevent mistakes and frauds. The specification of the nature of the controversy is in this case amply sufficient for that purpose, and would probably suffice under the statute of 1796. -

Another objection to the rule is, that only two of the referees signed the reports. But it appears from these reports that all the referees were present at both the hearings,and the law as to judicial officers corresponds with the form of tfie rule under which the referees acted, insomuch that the report of any two, when the whole number is three, binds the parties,

A further objection relates to the time of the return of the report ; the rule provides for a return on or before the first Tuesday of September, 1819. The report is dated August 26, 1819, and for aught which appears was returned on the same day. On the second Tuesday of the same September" *486it was recommitted and not returned again till about the loth of October, but still within the time directed by the justice when the report was recommitted. As the parties themselves do not designate the time when the report was to be made; — as the justice therefore must perform that duty, and as on a recommitment of the report, which he doubtless has power to order, the recommitment might be nugatory without further time given for a new hearing, we think that objection not tenable. 2 Strange, 1025 note, — Hoyt vs. Wingate, Strafford, September, 1805.

The remaining objection, that no authority appears in Daniel Burleigh to enter into the rule, and that William in no place appears in person to have had any concern with the proceedings, is of a different character and is fatal to the judgment. Unless William is "bound by the award, it is not final; and an award not final is void. Kyd on Amarás, 208.

It is now too late for William, after the award is in his fa-vour, to ratify the doings of his brother, or to say that the present plaintiff appears to have no claims against either of them, or that the brother is at all events bound by the award. 1 Rolle Ab. 244,*

For unless William duly empowered his brother to enter into the rule, and it was entered into for him in such a manner as to be binding, it was a mere nullity to him ; a suit would now lie in his favour for any claims on account of the timber; and thus the award not only fail to be final as to him, but lose all the mutuality intended by the plaintiff and the referees.

And though Daniel may be held for his brother as well as himself,(1) yet the principle is the same, as Daniel may not have been responsible and all the parties contemplated to be bound are not bound or precluded from further actions by the award.

⅛ the first place nothing appears to show that Daniel was empowered to bind William m this way* If they were co~ partnerg jn trade, which is not probable as no company name is used, their co-partnership would not of itself empower one to bind the other by a submission under seal or *487by record. We say under seal, because though the princi-pie is laid down generally, yet the cases reported are those of submissions by bond; and it is a technical principle that one partner cannot by the mere force of a co-partnership, bind the other by deed or bond. 7 D. & E. 208, Harrison vs. Jackson.—2 Mod. 228, Strangford vs. Green.

There must be some special authority for this purpose. 2 East 142, Wilkes et al. vs Benk.

So if the submission be “by record,” because a fortiori, oiie cannot bind the other by a submission in a form more sacred than a specialty : whether one partner cannot bind the other by a parol submission, or a submission by a mere writing unsealed, is more questionable and need not now be settled. 7 D. & E. 209.—14 Mass. Rep. 45.

If they were not co-partners, but mere joint owners of the property, one could bind the other, if specially authorized, but not otherwise. Kyd on Aw. 42.

Among joint owners, whether the authority must be by deed, when the submission is by deed or record, need not be decided, as nothing appears in this case tp show any special authority to Daniel in any mode whatever.*

Again, it is questionable whether in the absence of all evidence on the record, we ought to presume that any authority in fact existed. In most cases, authority of a similar description in attorneys, guardians, administrators, &c. is presumed or is held to be waived by not being objected to in an early stage of the proceedings. See JVhidden $• Lang, ante.

But these proceedings are under a special statute: every thing is to appear with distinctness, which is necessary to their validity; and a presumption like that above mentioned would hardly be warranted by analogy to other proceedings under similar statutes. 3 John. Ca. 107.—2 Mass. Rep. 420.—4 Wheaton 79.-6 East 426.-4 D. & E. 369.

Courts, however, should feel a strong inclination to overcome an objection of this kind after a full hearing on the merits; and I should hesitate to hold that the objection had not been waived, if this would relieve the case from all its difficulties.

*488But granting that a special authority existed in fact from William to Daniel, yet tire evidence of it does not appear on record, and should William now deny the fact and prosecute the plaintiff anew for the timber, the presumption before mentioned would not make the record an estoppel to William, though it may have been to the plaintiff, but the plaintiff would be compelled to resort to the other evidence concerning the authority. The record shows no appearance by William in person, nor appearance for him by any practising attorney, and no appearance for him by his brother, under any authority whatever. The record is, therefore, defective. The proceedings on the face of them are not a final bar on the subject of the controversy. In England, by a rule of court when a judgment is confessed by an attorney, for a third person, the warrant of attorney must be filed. Tidd 500.

This proceeding under a special statute ought certainly to be no less strict. The authority of a practising attorney ex officio to refer a cause by a rule of court is a different question ; and the mode of doing it if permissible may well enough conform to Other common law proceedings. Kyd Aw. 45.—1 Dall. 164.—7 Cranch. 436, 449, Holker vs. Parker.—Caldwell on Arbitrations 31.

Judgment reversed,