Patterson v. Leavitt , 4 Conn. 50 ( 1821 )

Hosmer, Ch. J.

The sole question in this case, is, whether an award made by two only of three arbitrators, no such power having been expressly given, and the other having dissented, is legally valid.

The principles applicable to this case are indisputably settled; and the only enquiry relates to their application. It is said, by Lord Coke, (Co. Litt. 181. b.) that there is a diversity between, authorities, created by the party, for private causes, and an authority created by law, for the administration of justice; as if a man devise, that his two executors shall sell, or a charter of feoffment be made to deliver seisin, they must concur. But, if the sheriff, on a capias directed to him, make a warrant to four or three, jointly or severally, to arrest, two may make the arrest, because it is for the execution of justice, which is pro bono publico, and therefore, shall be more favourably expounded.

It is established beyond a question, that an authority given, for a private purpose, to a number of individuals, is joint, and must be strictly pursued. 3 Vin. Abr. 421. Pow. Dev. 294. Guppy & al. v. Crown, 4 Dall. 410.

On the other hand, if a power be of a public nature, the majority may perform the act delegated; the power being considered as joint or several. Grindley & al. v. Barker & al. 1 Bos. & Pull. 229. The King v. Beeston, 3 Term Rep. 592. Withnell v. Gartham, 6 Term Rep. 388.

A submission to arbitration in Westmister Hall, as well as in the adjoining states of New-York and Massachusetts, has been uniformly considered to be a delegation of power for a mere private purpose; and all the arbitrators must concur, unless it is otherwise provided by the parties.Sallows v. Girling, Cro. Jac. 277. Berry v. Penring, Cro. Jac. 399. Dalling v. Matchett, Willes 215. S. C.Barnes' Notes 57. Kyd on Awards 106. Green v. Miller, 6 Johns. Rep. 39. Towne v. Jaquith, 6 Mass. Rep. 46.

The correctness of these decisions is evinced, by the common practice of authorizing a number of the arbitrators, less than the whole, to make a valid award, if the parties elect to confer this authority. Nor do I know, that any determination has ever been made, establishing an award made by a part of the arbitrators, unless the power was specifically given.

It has been contended, that the law in Connecticut has been otherwise established; but of this no evidence appears, except the dictum in the second volume of Swift's System, (p. 8.) for which no authority is cited; and to which, in opposition as it is to all the cases, I cannot defer. I think it not improbable that from a supposed analogy to the awards of referees and auditors, who derive their power to administer justice, by the act of law, the awards of arbitrators have often been considered, not only by the courts, but by individuals, as resting on the same ground. A mistake so obvious, had this consideration, and the practice in consequence of it, been more general than they have been, could only warrant a prompt correction of the error, and not a confirmation of it.

The construction which I have adopted, can result in no possible inconvenience. It assumes the principle, that a general delegation of authority for a private purpose, is intended to be strictly expounded; and that such is a submission to arbitration. But the parties submitting may confer a special authority, authorizing a valid determination, by any number of the arbitrators.

I would advise that judgment be rendered for the defendant.

The other Judges were of the same opinion, except Brainard, J., who was absent.

Judgment to be rendered for the defendant.