delivered the opinion of the court. A controversy between these parties was submitted to *41five arbitrators. The submission did not provide that a less number than the whole might make an award. All the arbitrators met, and heard the proofs and allegations of the parties, but four only agreed on the award made; and whether this award be binding, is the question now before the court.
No case has been cited by the counsel, where this question has been directly decided. I am, however, satisfied, that, as a submission to arbitrators is a delegation of power, for a mere private purpose, it is necessary that all the arbitrators should concur in the award, unless it ia otherwise, provided by the parties.. In matters of public concern, a different rule seems to prevail; there the voice of the majority shall govern. In the case of Grindley v. Barker, (l Bos. and Pull. 236.) Eyre, Ch. J. says, “ It is now pretty well established, that where a number of persons are entrusted with power, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.” The same principle was recognised by the court of K. B. in the case of The King v. Beeston, (3 Term Rep. 592.) which arose under the statute 9 Geo. I. which enables the churchwardens and overseers to contract for the providing for the poor. It was held, that it was not necessary that all the churchwardens and overseers should concur; as the contract of the majority of them would bind the rest.
Lord Kenyon, however, observes, that this was very different from the case of trustees in settlements, who are generally chosen by. the different branches of the family, in; which case it is necessary that they should all concur in every act, in order, that each may protect the interest he was appointed to guard.
These cases, I think, warrant the conclusion, that where the trust or authority delegated is for mere pri*42vate purposes, the concurrence of all interested with the power, is necessary to its due execution.
In the case of Berry v. Penning, (Cro. Jac. 100.) the submission was to the arbitrament and order of foúr persons, &c. so as the award be made and delivered in writing under the hands and seals of the four, or any three of them. The award was made by three only, and it was contended that it was void, because the arbitrativo authority was given to them, all four, and not to the three, that the words so as the award be made by them, or any three of them, did not alter the authority. And to this opinion the court were, at first, inclined, but after several arguments, they decided, that the award was good. They considered, that although the words, at the first, are to the four jointly, yet by the subsequent provision, the authority is disjoined, so as to make the submission to the four, or any three of them. No doubt can be entertained, that had it not been for the subsequent provision which was deemed explanatory of the "intention of the parties, the award by three would have been held void.
The same doctrine was established in the case of Sallows v. Girling, (Cro. Jac. 278.) which was very analogous to the one last cited. And even there Fleming, Ch. J. doubted, and rather inclined to the opinion, that all four ought to make the award.
In Barnes’s notes, p. 57. (Willes, 215.) it is laid down, that unless it be expressly provided, in the submission, that a less number than all the arbitrators named, may make the award, the concurrence of all is necessary; and where such a proviso is made, all must be present, unless those who do not attend had proper and sufficient notice, and are wilfully absent.
We are, accordingly, of the opinion, that the motion for a new trial ought to be granted.
New trial granted.