The validity of this award must depend upon the due and proper appointment of the arbitrators, and the regularity of their proceedings. If Baxter, after he had declined to act as referee, and had appointed Goodspeed, Francis Hallet and Crowell, and given notice thereof to the parties, had the further power, under the instrument of submission, to substitute new referees, toties quoties, of which we give no opinion, we are of opinion, that such authority could only be well executed by giving notice to the defendant, that two of the referees, first appointed, had declined, and that two others had been appointed. Such notice was necessary, among other things, to give the defendant an opportunity to except to the appointment of the substituted referees, or either of them, for just cause. But further; having had notice to attend, before the referees first named, at Barnstable, supposing it reasonable, as to time and place, without any notice that any change of referees had been made or intended, if he knew the fact, as he might, that two of the referees did not go to Barnstable at the time notified, he could have no reason to suppose that a hearing would or could then and there be had. Now it appears, by the facts, that Warren Hallett and Jonathan Hallett were appointed in place of Francis Hallett and Crowell, who had declined, at Barnstable, on the day of the ex parte hearing. Of this appointment the defendant had no notice in fact; and if it was not his duty to be there at that time, such want of notice was not attributable to his own default.
But no notice of the time and place of hearing was given by the referees who made the award. A notice was made and given to the defendant at Boston, to appear at Barnstable, signed by Goodspeed, chairman. He was then chairman of the board first named, and he must have acted under their authority and direction; otherwise, his act was void. This notice, in its legal effect, was a notice from Goodspeed. Crowell and Francis Hallett, to appear for a hearing before *297them. The giving notice of the time and place of hearing is essentially a part of the authority conferred on referees, and is often very important, to insure a full and fair hearing And although Goodspeed may have acted as chairman, in the second board of referees, as well as the first, yet they were distinct aggregate bodies. The notice issued by him in Boston, as chairman, could not be regarded as done under the authority and in behalf of the second board, who actually made the award; because they were not then appointed. It was not, therefore, their act done through him, as their chairman.
Without considering other objections to this award, the court are of opinion that it was not valid, because the defendant had no notice of the appointment of two of the referees, till after the award was made, and because he had no notice of the time and place of hearing, from the referees, who made the Sward.
Exceptions overruled.