Small v. Trickey

Appleton, J.

After the parties had introduced such proof as they severally relied upon, and had each presented their views as to the effect of the same, the referees adjourned for a final decision. Before the award was made, it was deemed desirable by the referees to verify an account, which had been sworn by a witness to be correct, by comparing the same with the original books of account from which it had been copied. A comparison was made, and the copy was found correct. The party in whose favor the award was made accompanied one of the referees, who made this examination, and aided in making the comparison. This was done for the purpose of preventing any possible mistake. It is not alleged that the comparison was fraudulently or erroneously made. This cannot be regarded in any meaning of the phrase, as an ex parte hearing. No misconduct, partiality or fraud on the part of the referees is shown to exist.

It was held in the House of Lords, in Drew v. Drew, 33 Eng. Law & Eq. 9, that where an arbitrator examines witnesses behind the back o.f one of the parties, such party is justified in at once abandoning the reference and applying to a Judge to rescind the submission; but if he continue, after the fact come to his knowledge, to attend the subsequent proceedings, this will be a waiver of the irregularity, and he cannot afterwards set aside the award on that ground. But in the present case no witnesses were examined, and no evidence was heard. The comparison instituted was a measure of extraordinary precaution on the part of the referees, and for the benefit of the losing party. No error having been discovered, the award was based upon the evidence introduced at the trial, and was entirely unaffected by the subsequent proceeding, to which the defendant objects.

No reason is perceived for taking off the default which has been entered. Default to stand.

Tenney, C. J., and Hathaway, May and Goodenow, J. J., concurred.