Howard v. Sexton , 1 Denio 440 ( 1845 )

By the Court, Bronson, Ch. J.

It is not denied that there was a statute submission; (2 R. S. 541, § 1,) hut the argument for the defendant is, that because the arbitrators were not sworn, (§ 4,) the whole proceeding before them was coram nonjudice; )r at least, that it was not a statute arbitration, and consequently there was no authority to swear the witnesses, as there would have been had the arbitrators been sworn. (§ 5.) Such is not my opinion. True, the statute says, the arbitrators shall be sworn. But that, like similar provisions in relation to judges and jurors, was only intended to secure to the parties, if either of them desired it, a hearing and decision by persons sworn to a faithful discharge of their duties. I cannot suppose that the legislature intended to prohibit the parties from waiving the oath to the arbitrators; nor that going on by consent without the oath changes the legal character of the tribunal. Suppose the parties should waive the swearing of the jury at the circuit, or agree that eleven, instead of twelve, jurors might hear the cause and render a verdict, I cannot for a moment suppose that false swearing by a witness on the trial would not be perjury. Or if parties should go to a trial before a judge or a justice of the peace who had not taken the oath of office, I think a witness who should swear false on such trial could not escape the pains of perjury. Here both parties tacitly consented to go on without swearing the arbitrators: but they had their witnesses sworn by a justice of the peace pursuant to law. I think the witnesses could commit perjury before the arbitrators; and consequently that an action may be maintained for words imputing perjury to them on that occasion.

New trial granted.