FROM GRAFTON CIRCUIT COURT. The parties to these two suits, together with others interested in the location of the same range line, agreed to submit to the determination of three referees, mutually agreed upon, the matter in dispute, which was the true location of said line. A rule of court thereupon issued to the arbitrators thus selected, and a hearing took place before them upon the premises, in the town of Bethlehem, lasting, it is said, some four or five days, and, by further agreement, without the presence of counsel. A remark made by one of the referees to Libbey, one of the persons interested in the location of the line in dispute, but not one of the parties to these suits, in regard to furnishing spirituous liquor, was evidently jocosely made, but unfortunately was differently understood. He very foolishly procured a bottle of brandy on the following day, which was passed round while the referees and parties were at dinner, and two at least of the referees partook of its contents, in the presence and with the knowledge of, and without objection from any of, the parties. One of the two referees then carried the bottle during the afternoon, but did not drink from it again — at least, until the hearing for the day was completed. There was no attempt made at concealment, and none of those who drank were intoxicated. There is no evidence that its use had any effect upon the judgment of the referees, and there is no reason for supposing it was furnished with a view of influencing their action. All the parties allowed the hearing to go on, at very considerable expense, each taking his chance of obtaining a favorable verdict.
The report being unsatisfactory to the plaintiffs, they now move to set it aside because of the above alleged improper conduct of Libbey and of two of the referees.
When parties have selected their own arbitrators for settling their disputes, the courts are slow to set aside their decision for other than substantial reasons. It will, ordinarily, not be done, unless the court can *Page 22 see that a full and fair hearing has not been had, or the conduct of the arbitrators has been such as is calculated to bring reproach upon the cause of justice, and the tribunal that may tolerate it. Accordingly, the courts of this state have set aside verdicts because of the use of stimulating liquors by a jury while deliberating upon a verdict, without first showing a case requiring such use, and procuring leave of the court for that purpose, and that without inquiring whether the use was an intemperate one or otherwise. State v. Bullard, 16 N.H. 139. They refuse to weigh and examine the quantity which may have been taken by the jury, or the effect produced — Leighton v. Sargent, 31 N.H. 119, People v. Douglas, 4 Cow. 36; and in the Newport Highway, 48 N.H. 433, where spirituous liquors were furnished by the petitioners, of which the commissioners while engaged in the hearing, repeatedly drank, BELLOWS, J., said, — "We are constrained to regard it as an abuse that ought to find no countenance in courts of justice * *. We cannot stop to inquire as to its precise effect. * * If such practices were to be tolerated, we cannot fail to see that great injustice might sometimes be the result; — and as, from the nature of the case, it would generally be impossible to measure the extent of their influence, no other course is open to us but to discountenance wholly the practice."
If, then, the court will not look with any indulgence upon the use of spirituous liquors as a beverage by juries while deliberating upon a verdict, or upon the furnishing of them by a party to county commissioners for like use at a hearing, ought the court to look with any greater indulgence upon the furnishing of them by a party to referees whom the parties have selected to settle their disputes? There does not seem to be any reason why, ordinarily, a different rule should be observed. Juries are under the immediate control of the court, in the courtroom: they have no duties to perform until they retire to consult upon their verdict, except to listen to such evidence and arguments as the court may receive. The commissioners, although chosen by the people, nevertheless act under authority from the court in the consideration of petitions in relation to highways; and for the propriety of their action the court feel, in some degree, responsible. The same is true in regard to referees. This court has "general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses — Gen. Stats., ch. 189, sec. 1; and there can be no reason why the court should refuse to rebuke the conduct of referees by setting aside their report for such abuses as tend to bring reproach upon the cause of justice. The same degree of strictness may not be practicable in the case of referees or commissioners who may, upon their own judgment, supply themselves with liquor, to be drank while deliberating upon matters referred to them, as in the case of a juror when deliberating upon a verdict; but it is quite a different matter when the liquor is furnished by one of the parties.
In this case, it appears that the liquor was furnished by one Libbey, who is not a party to either of these suits, but who was interested in the establishment of the same range line which the defendants claimed to *Page 23 be the true line, and he had agreed to submit the dispute, so far as he was concerned, to the decision of the same referees. So far as the facts reported show, neither of the three defendants of record had anything to do with furnishing the liquor and do not seem to be any more responsible for it than the plaintiffs. There is nothing to show that they assented to the use of it, any more than the plaintiffs did: it was drank in the presence and with the knowledge of both parties, and without objection from either. It does not appear, from the case sent up, that either of the plaintiffs or defendants partook of it.
Here is a case presented, then, where two of the referees were indiscreet enough to partake of liquor furnished by a person interested in the decision of the question submitted to them for determination, upon the invitation, evidently jocosely made but which he understood differently. Neither party to the record appears in any way responsible for this. Did the parties, by their silence, and by allowing the hearing to proceed, waive the objection and are they precluded from now interposing it as a reason why the report should not be accepted? In the Newport Highway, supra, the agent of the petitioners had furnished the commissioners during the hearing with intoxicating liquors, of which they partook repeatedly in the presence of the counsel for the town, who declined to partake. BELLOWS, J., in commenting on this, says, — "It is true that it was openly done, and that the counsel of the other party made no objection. In some cases the silence of counsel upon the subject would justly be regarded as a waiver of the exception; but considering the delicate nature of the objection, and the reason to fear that the urging of it would give offence to the commissioners, we are not disposed to regard it as waived in this instance. The counsel for the town, indeed, seems to have declined to partake with the commissioners, and in this way exhibited what might well be regarded as his dissent from the proceeding. Had he gone further, and made an explicit objection, he might have had reason to fear the arousing of a feeling more prejudicial to his client than any use that would be likely to be made of the liquor" — p. 435. In that case one of the parties was exclusively in fault. Whatever of reproach attached to the transaction was the direct result of the reprehensible act of the petitioners through their agent. But in this case neither party to the record is shown to have participated in the abuse complained of, or to be in any way responsible for the same. As they had full knowledge of it, and made no objection to it, but chose, each of them, to proceed with the hearing, and took each his chance of a favorable award, I think they must now be regarded as having waived the objection, and they cannot be heard to set it up. This hearing took place, it is said, in the open air, in the back woods of Bethlehem, occupying a period of four or five days, without the presence or assistance of counsel, and was no doubt intended to afford all the parties the fullest and freest opportunity to lay their respective claims before the referees, untrammelled by technical rules. Unlike the cases cited, where verdicts were set aside for the use of liquor in the jury-room, these parties knew of the use of *Page 24 liquor by the referees, and no objection was made then, or afterwards, until the award was presented in court for judgment. It is possible the plaintiffs may have refrained from objecting at the time because of the delicate nature of the objection; but I think, under such circumstances as are disclosed in this case, it was their duty to these defendants, who were innocent of the fault of which the plaintiffs complain, to have made known their objection at the time, so as to have saved them the trouble and expense of a further hearing. If the defendants had been the offending party, the case would resemble the Newport Highway, where it might well be held that no such duty was owing to a party who was guilty of such reprehensible conduct.
The plaintiffs, under these circumstances, ought not to be permitted to lie by and take their chance of obtaining a favorable award, and then, when disappointed in the result, be heard to interpose an objection which they might have made at an early stage in the hearing. And this result does not conflict with the rule laid down in State v. Bullard and Leighton v. Sargent, supra, where the bad conduct for which the verdicts were set aside took place in the jury-room, out of the presence and without the knowledge or assent of the parties, and the party, upon whose motion the verdict was set aside, interposed the objection as soon as the improper conduct of the jurors was brought to his knowledge. He could not therefore be said to have assented to it, or to have waived the objection by not making it before he had knowledge of it. As to Libbey, the plaintiffs might at any time, before the award was published, have revoked the submission, but did not choose to do so.
As the result of these views, it follows that the defendants are entitled to judgment upon the report.