#### James M. Duncan, Plaintiff in Error, v. Clement B. Fletcher, Defendant in Error.

ERROR TO FAYETTE.

Parties who agree to submit their case to arbitration, will be governed by their agreement, and if one party stands by and suffers judgment to be entered on the award, to which technical objections could be made, this court will not interfere to reverse the judgment.

Where no fraud is charged or injustice alleged, the court will presume that the referee was sworn, if the fact does not appear on the award.

Opinion of the Court by

Justice Smith.

This is a case of reference of a suit in the circuit court of Fayette, by consent of parties, under the fourth section of the “ Act regulatingarbitrations, and references,” approved 6th of January, 1827, and brought into this court by writ of error. Two grounds are assumed as cause of error and relied on, for the reversal of the judgment of the circuit court:

1. That it does not appear on the face of the award that the arbitrator was sworn.

2. It does not appear on what day the award was made.

To determine the questions presented for the decision of the court, it will be necessary to refer to the terms of agreement under which the reference was made. The agreement is in the words following, viz.:

It is agreed between the parties in this case, that the same be referred to James Black, and that the books of C. B. Fletcher shall be evidence of the correctness of said account on the part of the plaintiff, and so far as they may make for the defendant, and that the award of the said James Black, shall be entered up as the judgment of the court. It is further agreed that said accounts shall be adjudicated, upon Saturday, the 29th of September, instant, whether the said parties are or are not present. And it is further agreed that all evidence which might be received in this court, shall be exam*324ined by the said arbitrator who may call in a proper officer to swear witnesses.

J. M. Duncan.

Signed, W. H. Brown, for plaintiff.

By this agreement it does not appear that the parties required the referee to be sworn, before acting on the matters submitted to him ; nor by his report does it appear, affirmatively, that he was not sworn. If the reference be considered as a mere matter of consent and not under the statute, then, so far as it regards the necessity of the referee being sworn before acting on the matters submitted to his decision, the parties have themselves, manifestly, waived that necessity by their agreement. But I am disposed to consider the reference as made under the fourth section of the act above quoted.

By the sixth section* of that act, it is declared that each arbitrator and referee shall, before proceeding to the duties of his appointment, take an oath or affirmation, faithfully and fairly to hear, examine and truly to award or report, on the matters submitted to him. It was necessary, no doubt, that he should have taken the oath required, but whether such oath has, or has not been taken, can not be ascertained from the face of the report of the referee; it may, or may not, have been done.

If the defendant in the court below wished to have ascertained that fact, and considered it material to the decision of the cause, the objection ought to have been there made, because it did not so appear; or he might by affidavit, have shown the fact himself and thus impeached the report; or he should at the time of filing the report, have objected to the rendition of a judgment upon it, because of the absence in the report of an averment that the referee had been sworn. This was not done ; neither course was pursued.

The court is in justice bound to presume that the requisition of the law has been complied with, after the party has stood by and neglected to make his exceptions, which are in a great measure merely technical.

It ought to presume in a case like the present, where no injustice is charged to have been done, where no fraud, partiality or mistake is alleged in the conduct of the referee, or his determinations, and for aught that appears, the report is both accurate and just as to the amount awarded, that the oath required has been taken.

It was in the power of the party in the court below to have raised the objections, and indeed to have contradicted the report, or impeached the conduct of the referee, if just cause *325had existed. He, however, lies by and suffers judgment to be entered without opposition. Had the objections been raised in the court below it would have given the plaintiff an opportunity to have made the report in respect to the objections urged, conformable to the fact, and to have inserted in the report, the averment of the oath having been taken.

Hall, for plaintiff in error.

Brown, for defendant in error.

The same view is taken of the second objection. The award is not required to be made on any day, but the adjudication, as it is termed in the agreement, is to be on a particular day, whether the parties are present or not, and the evidence to be examined is the books of the plaintiff only, and by which the precise amount due is to be determined by the referee. The report does not aver that the referee did adjudicate the matter in dispute on that day, it is true, but was it really necessary that it should be done ? The necessity for it is not perceived, and even if it were, the objection ought to have been made in the court below, so as to have afforded the plaintiff an opportunity to have shown the fact. The defendant might have shown, as has been before suggested, that it was done on a different day, and thus impeached the report; it has not been done, and the absence of the averment ought not now, when such opportunity could not be afforded, to operate to the prejudice of the plaintiff. The court is bound to presume that the condition prescribed for the observance of the referee has been complied with. In support of this rule I refer to a case decided in New York, reported in 17 Johnson, 461, where it is determined, “ that in a cause referred by the agreement of the parties to three referees, who, or any two of them were to report, and two only of the referees signed the report, which stated that the subscribers having heard the proofs and allegations of the parties, find,” &c., on a writ of error brought on a judgment entered on the report; it will be presumed that all the referees met and heard the parties, though two only signed the report, nothing appearing to the contrary on the record; but if the fact were otherwise, the objection ought to be raised in the court below on the coming in of the report, and not in the court of error, which can only look to the record. The present case, manifestly falls within the reasons of this decision, and is indeed a case analogous in principle. The judgment of the circuit court must, therefore, be affirmed with costs, (a) , (1)

Judgment affirmed.

*

Rev. Code of 1827, p. 65.

(a)

Chandler v. Gay, p. 88. Cromwell v. March, p. 295.

(1)

See note to Chandler v. Gay, ante, p. 88.