Ford v. Potts

6 N.J.L. 473

• Court: Supreme Court of New Jersey
• Decided: May 15, 1797
• Status: Published

Opinion

Kinsey 0. J.

delivered the opinion of the court. (After stating the ease.) It is contended, on the part of the plaintiff, that a bill of exceptions would not lie in a case of this kind. This objection wo consider as entitled to little weight. The design of the statute was to provide a mode for examining errors which could not properly be inserted in the record, and allows an exception wherever a party is impleaded, that is, sued or prosecuted; and 1 see no reason for restricting it to trials. I recollect a case where a challenge to the array was made, and, being overruled, a bill of exceptions was taken, and the question carried before the governor and council, by whom it was determined; and the right to except was never questioned.

If the proceedings of the inferior court were illegal, and violated the rights of the party, this court would, in some form or another, come at the error, and see that justice was dono. Mease v. Mease, Cowp. 47.

After removing this preliminary difficulty, we come to the error complained of. It is contended, that the court below ought not to have rejected the affidavits and reasons, because the witness being present might have been cross-examined, and because, had the opposite party complained of surprise, further time might have been allowed, which was the usual practice of the court. The circumstances of the case which has been referred to as establishing a precedent, and authorizing this practice, are not precisely known; but we think that every court possesses the right of rejecting affidavits, when offered at so late a period as not to allow a full hearing, when they perceive that the receiving them will be productive of delay, and that delay is attempted by the party thus guilty of laches; and when, as in the present case, the time for hearing the argument was fixed by the party who has delayed taking the affidavits at a period sufficiently early to admit of disproving the facts. The delay was altogether unnecessary and unaccounted for, and not to be encouraged. We cannot therefore say, that the justices below were wrong in rejecting this attempt to create delay.

But however this maj? be, if the facts serving as the foundation for the exceptions to the award are insufficient to vitiate it, the judgment ought to be affirmed, although the court erred in refusing to hear the affidavits and reasons.

There seems some weight in the observation, that if the sixth section of the act of 1794 applied to this case, and the referees should have been sworn before they proceeded to business, this fact ought, in some manner or another, to have been made to appear on the face of the proceedings themselves. The case of a jury is perfectly analogous: a jury is summoned to try facts before the court; the universal practice is to state, on, the record, that they were previously and regularly sworn, and a failure to state this would be error. I cannot distinguish, in principle, between the. two cases. If it is not necessary that the fact should appear, the statute may become altogether inoperative.

The case from Raymond is inapplicable. This is a special jurisdiction, created for a particular purpose, and the regularity of the whole proceeding must be shewn. I do not think that the single circumstance of appearing before an arbitrator and defending a suit, would estop a party from questioning his authority. Want of jurisdiction may be taken advantage of at any time.

The next question to be considered is, whether the act of 1794 applies to the arbitrators in this suit ? It is important here to attend with some exactness to dates. The reference was entered into in August, 1793; the act of assembly requiring arbitrators to be qualified, was passed in 1794; the award, dated April, 1795, was filed in May, 1795.

This act is almost a transcript of the 9 and 10 Will. III. c. 15. With the exception of the sixth section, the parts which relate to references, it is chiefly confined to cases where no suit is actually depending, and seems intended to put such disputes on the same footing as if there had been a suit commenced. Where there is a suit depending, a reference depends on the common law; it is not affected by the statute. Lucas v. Wilson, 2 Bur. 701.

The words of the sixth section are more general, and do not seem restricted to any particular references. It directs, that in cases of arbitration, every arbitrator, " before he proceeds, &c., shall take an oath or affirmation,” &c. These words, however, according to their usual acceptation, would seem to impose a duty rather on the arbitrator than on the party. If the direction is not complied with, the law subjects him to no penalty; it does not invalidate the proceedings, or empower any court to set them aside. The qualification appears to me to be required for the security of the parties. If they knowingly go to a hearing before the arbitrators, and either neglect or omit to avail themselves of the security offered by the legislature, it would be unjust that they should be permitted to hold up the award as void. It is a principle quilibet potest renunciare jus pro se introducto. Many cases might be imagined, in which it would be in the highest degree unjust to declare the award void. If one of the parties were to suffer the arbitrators to proceed without being sworn, with the intention of availing himself of the defect, I should compare it to the case of Gillman v. Hill, Cowp. 141, where one knowingly executed a warrant of attorney in custody, with the design of availing himself of the circumstance, the court refused to set it aside.

The legislature have not declared, that the omission to take the oath should invalidate the award, and we cannot suppose that, this was their meaning. If such was their intention, it might easily have been expressed, but as it is omitted, we can only judge of their intentions by what they have done.

We are also of opinion, that the act does not extend to cases which had been referred previously to its passing. The design of the legislature was to provide a rule for future cases. A parol promise, made before the statute of frauds, to be performed afterwards, is not. within it, though the statute says, no suit shall be brought, after a certain day, on a parol promise, and the suit was brought after that day. 2 Lev. 227.

Judgment affirmed.