dеlivered the opinion of the court. A controversy between thеse parties was submitted to
No case has been cited by the counsеl, where this question has been directly decided. I am, however, satisfiеd, that, as a submission to arbitrators is a delegation of power, for a mere private purpose, it is necessary that all the arbitrators should concur in the award, unless it ia otherwise, provided by the parties.. In matters of public concern, a different rule seems to prevail; there the voice оf the majority shall govern. In the case of Grindley v. Barker, (l Bos. and Pull. 236.) Eyre, Ch. J. says, “ It is now pretty well established, that where a number of persons are entrusted with power, not of mere private confidence, but in some respects of a general nature, and all of them аre regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.” The same principle was rеcognised by the court of K. B. in the case of The King v. Beeston, (3 Term Rep. 592.) which arose under the statute 9 Geo. I. which enables the сhurchwardens and overseers to contract for the providing for the poor. It was held, that it was not necessary that all the churchwardens and overseers should concur; as the cоntract of the majority of them would bind the rest.
Lord Kenyon, however, observes, that this was very different from the case of trustees in settlemеnts, who are generally chosen by. the different branches of the family, in; which case it is necessary that they should all concur in every act, in order, that each may protect the interest he was аppointed to guard.
These cases, I think, warrant the conclusiоn, that where the trust or authority delegated is for mere pri
In the case of Berry v. Penning, (Cro. Jac. 100.) the submission was to the arbitrаment and order of foúr persons, &c. so as the award be made and delivered in writing under the hands and seals of the four, or any three of them. The award was made by three only, and it was contended that it was void, beсause the arbitrativo authority was given to them, all four, and not to the three, that the words so as the award be made by them, or any three of them, did not alter the аuthority. And to this opinion the court were, at first, inclined, but after several arguments, they decided, that the award was good. They considerеd, that although the words, at the first, are to the four jointly, yet by the subsequent рrovision, the authority is disjoined, so as to make the submission to the four, or any three of them. No doubt can be entertained, that had it not been for the subsequent provision which was deemed explanatory of the "intention of the parties, the award by three would have bеen held void.
The same doctrine was established in the case of Sallows v. Girling, (Cro. Jac. 278.) which was very analogous to the one last cited. And even there Fleming, Ch. J. doubted, and rather inclined to the opinion, that all fоur ought to make the award.
In Barnes’s notes, p. 57. (Willes, 215.) it is laid down, that unless it be expressly provided, in the submission, that a less number than all the arbitrators named, may make the award, the concurrence of all is necessary; and where such a proviso is mаde, all must be present, unless those who do not attend had proрer and sufficient notice, and are wilfully absent.
We are, acсordingly, of the opinion, that the motion for a new trial ought to be granted.
New trial granted.