The opinion of the Court was drawn up by
Whitman C. J.No doubt is entertained, that the powers delegated to arbitrators, and referees by rule of Court, depend alike in each case, upon the agreement of the parties thereto.
*44To establish such a position in the defence, the citation of authorities was a work of supererogation. The memorandum, however, from which the entry on the docket of the agreement to refer was made, and to which no reference is made in such entry, cannot be regarded as in anywise affecting the construction thereof.
A memorandum of an agreement, made out of Court, to refer, and subsequently carried into effect by an entry in Court, and under its sanction, on the docket, is thereby wholly superseded, as much so as if it had never existed. The question then depends upon the construction to be put upon the entry upon the docket. Such entries are always brief, and merely to indicate to the clerk, vyhen about to make up an extended and permanent record, what is to be the scope and effect of it. Such abbreviated entries by long usage, become perfectly in-, telligible to the Court and the bar; as much so as LL. D. or S. T. I), et cetera, in a university catalogue.
In entering an agreement to refer upon the docket it almost never occurs, that the parties contemplate a reference otherwise than in the pommon form, viz. that if the referees cannot agree, after hearing the parties, a report made by the major part of' them shall be final.
So generally has this been the case, that, formerly, some, if not all the clerks, while we were a part of Massachusetts, when they entered upon the docket referred,” added, “ common rule ex parte”' This addition would be unintelligible tq pH such as were not conversant with such entries. 4- common rule was one in which it was agreed, that a majority should depide in case of necessity; and ex parte meant, that the referees should proceed, if one of the parties, upon being duly notified should not appear.
For many years past, it is believed, the above addition to the entry of “ referred” has been wholly omitted; and the word referred has been considered as importing, without it, the same as it formerly did with it. If any thing different were intended the parties have been expected to specify it. This modern practice would, seem to have obtained, in the county of Pe» *45nobscot, from the time of its establishment; for this is asserted to be the case by the counsel for the plaintiff, and not controverted by the indefatigable counsel for the defendant. It is not to be questioned, therefore, that there has been a perfect understanding at the bar, when, “ referred,” simply, has been entered under an action, that it has been perfectly well under-, stood to import a reference in the common form, viz. with power to the referees to decide, in case of necessity, by a ma-. jority, and to proceed upon hearing one party if the other, being duly notified, failed to be present. The report of the referees was therefore upon this ground unobjectionable.
It is further objected that in the rule issued by the clerk, the order of the names of the referees, as they stand upon the docket, is reversed, whereby the one on the docket, who, being first there named, would be expected to act as chairman, was superseded; and the last there named as a referee, substituted in his place. This was undoubtedly an irregularity on the part of the clerk; and we are by no means prepared to say, if it had not been acquiesced in at the hearing before the referees, that the report should not have been set aside for this cause. The parties have clearly a right to agree as to which of their referees shall act as chairman, and, not unfrequently, much importance is attached to such an incident. The first name in the order in which the names are introduced upon the docket, is considered as affording a designation qf the one intended to act as chairman. But it is not apparent, that the irregularity complained of could be attended with much, if any detriment to the parties; and it would seem that it could not be otherwise than competent fqr them to waive any exception on account of it. Such waiver may bo implied or express. At the hearing it could not have been unknown to them, who was acting as chairman, even if they can be believed to have been guilty of so great an oversight as not to have inspected the rule for the purpose; and knowing who acted as chairman, and going through the whole investigation without making any objection to the procedure, should certainly preclude the right to do so, when the result became known.
*46This objection, therefore, we do not consider as open to the defendant at the coming in of the report.
As to the exception, that the report is uncertain for want "of an ascertainment of the costs of reference, as the plaintiff moves for the acceptance of the report, in whose favor, in case of acceptance, judgment is to be rendered for such costs as he may be entitled to; and as no costs can be taxed for him, except such as may be ascertainable by the Court, according to the rules of law, it is not apparent why the defendants should, for the cause alleged, object to the acceptance of it. As to the costs, which Leonard would be bound to pay to the plaintiff, it is true, that the report of the referees contains no definite award ; and the subject does not seem to have been, and perhaps could not be embraced in the submission.
According to the requirement of the statute, with which it is to be presumed he had complied, he should have given bond, or have recognized, with sureties, to pay to the plaintiff all such costs and damages, as the Court should adjudge and decree to have been occasioned to the plaintiff by his defence. If it were competent to the parties to refer this question, by rule of court, it would not seem that they had done it. All that is embraced in the rule is the subject matter of the action pending between the original parties; and this would seem to have been done with the concurrence of the principal defendant ; for in the exceptions, by the defendant’s counsel, it appears that one of them, McLellan, appeared as well for the defendant as for Leonard.
■ The award therefore may be regarded as correct, and well made, independent of any adjudication as to what would concern Leonard and the plaintiff, and hence, if the latter is content with it, it is sufficiently certain.
The exceptions therefore are overruled, and the acceptance of the report is confirmed.