As I understand the case, the controversy between the plaintiffs and Libbey was not submitted under a rule of court, but by agreement; and as to him and the other parties situated as he was, the plaintiff might have revoked the submission. Dexter v. Young, 40 N.H. 130; Morse on Arb. and Awd. 230, et seq. The brandy was furnished openly, and what was drank was drank openly, while all the parties and referees were together taking a luncheon in the woods, and nobody was intoxicated. I think the failure of the plaintiffs to revoke the submission with Libbey and the other defendants situated as he was, and their going on with the hearing after the liquor was drank, and taking the chance of an award in their favor, cannot fairly be regarded as anything less than a waiver of this irregularity as to him.
As to those defendants who entered into the rule of court, the plaintiffs could not revoke directly; but there was a remedy equally effectual open to them. They might have declined to proceed with the hearing, and applied to the court to rescind the rule. Dexter v. Young, *Page 26 40 N.H. 130. I think the case is clearly distinguishable from Newport Highway, 48 N.H. 434, by the fact that county commissioners are public officers, charged by law with the duty of hearing and deciding such matters relating to highways as may be committed to them. The only remedy a party aggrieved by their misconduct has, is to move in court that their report be set aside. Arbitrators, on the other hand, are persons selected and agreed upon by the parties; and, although they may act under a rule of court, there is no reason why a party should proceed with a hearing before them after he has become aware of such misconduct as ought to disqualify them to act. The court, for reasonable cause, would rescind the rule.
There is no pretence here that the liquor was furnished with a view to influence the decision of the referees. There was no secrecy or concealment. The idea of having it did not originate with Libbey, or any interested party, but came from one of the referees. I certainly should not be inclined to relax the rule which requires abstinence from the use of spirituous liquors as a beverage, by a jury or other tribunal, while engaged in the trial of a cause. But it seems to me it would be carrying the rule to a very great and unreasonable extremity of rigor to set aside this award under the circumstances shown. In order to give it that effect, we must hold for aught I can see, that if a referee, while a cause is on trial before him, should drink any intoxicating liquor, no matter how obtained by him, no matter even if furnished by the party against whom the award is made, and drank without concealment in the presence of all parties, such award must for that reason be set aside.
It appears that the bottle of brandy was passed round. Whether the plaintiffs drank does not appear; but they were present, and made no objection. Suppose they had privately said to one another, "This is enough to destroy the award if it should happen to be against us; but we will go on and allow all the expense of a full hearing to be incurred. Perhaps the award may be in our favor; — if so, we can avail ourselves of it; if not, we can get rid of it by showing this circumstance to the court, and the defendants will have to pay not only all the expense incurred by themselves, but our taxable costs." Suppose such a conversation were shown to have occurred between the plaintiffs, at the time of the dinner in the woods: could a court look with much favor upon an application to set aside an award against them for that cause, made in pursuance of such deliberate plan? I think not. I cannot but think the plaintiffs, having full knowledge of all the facts, knowing exactly the extent of the misconduct of the referees, were called upon to do or say something. It seems to fall little short of an agreement that the award should not for this cause be attacked. If their delicacy, or fear that they might prejudice their cause with the referees by objecting, deterred them from interfering to prevent the use of the liquor when they saw what was going on, and that two of the referees had partaken of the liquor which one of them had required Libbey to furnish, they might have notified the other party and the referees *Page 27 that they considered the misconduct of such a character as to disqualify the referees, and that, if a report should be made under the circumstances, they should move the court to set it aside. This would have been the fair way, and, under the circumstances, I think it was no more than they were bound to do. They did not do this, but acquiesced in what was done, and went on with the hearing.
For these reasons I am of opinion that the exception should be overruled, and that there should be
Judgment on the report for the defendants.