
    Nathaniel Fox versus Peter Hazelton.
    Where a party to a cause which had been submitted to referees tinder a rule of court, received, previously to the hearing, sufficient notice of the partiality of one of the referees to put him on inquiry, but suffered the hearing to proceed without objection, it was held, that he was precluded from afterwards excepting to the report of the referees on the ground of such partiality.
    This action was submitted, under a rule of court, together with all other demands between the parties, to three referees, at March term 1829 of the Court of Common Pleas. The referees made a report in favor of the plaintiff; whereupon the defendant moved in that court, to set aside the award and discharge the rule, on the ground of partiality in the referees.
    Upon the hearing before the referees, the plaintiff claimed • of the defendant a large sum in damages for an .alleged malicious prosecution, and the referees awarded damages for that item.
    It was proved that one Worcester, who was a referee, had repeatedly expressed himself in the following manner, both before and after the referees were appointed, but before the parties were heard : — “that the defendant ought to pay for getting the plaintiff indicted ; that he had inquired into the business, and that the defendant was altogether in the wrong ; that the defendant did it out of spite and malice ; that he hoped the defendant would have to pay for it ; that the plaintiff was a good man, but he thought otherwise of the defendant.”
    One Hancbett testified, that after the appointment of the referees, but before the hearing, he informed the defendant that Worcester had used such expressions, and that the defendant replied, “I did not know it, but my cause is good and they cannot injure me.” It also appeared that the defendant, aftei the ride was entered into, upon being informed that Worcester was a witness at the trial of the prosecution alleged to be malicious, said, “.that made no difference, if he was an honest man.” At the time of the hearing, the defendant made no objection to the referees’ proceeding to determine the case, on the ground of the partiality of any of them, nor did be give notice to the plaintiff that any such objection would be made to the award. One of the referees testified, that at the hearing and during their, consultation, Worcester did not discover any bias against the defendant, or endeavour to influence the other two referees to award a greater sum against the defendant than they otherwise would have done.
    The Court of Common Pleas ordered the report to be accepted and judgment to be rendered accordingly, on the ground that the defendant had precluded himself from objecting to the validity of the report on account of the partiality of any of the referees. To this direction, the defendant filed his exceptions.
    The cause was argued in writing.
    
      Locke and Glidden, for the defendant.
    The defendant has not lost his right to make the objection of partiality, by omitting to do so at the hearing before the referees. This is not like the case of a challenge of a juror; here there was no court to inquire into the grounds of the objection, and to remedy the evil, if any existed, by substituting another referee. The defendant might suspect that all was not fair, but it was uncertain whether he could prove the existence of any improper bias. Must he then judge at his peril ? If he states his objection to the referees, he must there leave the case. If, after stating bis objection, he proceeds to the trial, it will be said he waives his objection. If he suffers the referees to proceed ex parte, he has no opportunity to make a defence, and if he fails before the court, to make out his objection upon the evidence, he is without remedy. Chicot v. Lequesne, 2 Ves. sen. 315 ; Bac. Abr. Arbitrament, &c. K; Boardman v. England, 6 Mass. R. 70.
    
      Hoar, for the plaintiff.
   Shaw C. J.

drew up the opinion of the Court. This case comes before the Court upon exceptions to the opinion of the Court of Common Pleas, accepting the report of the referees, made pursuant to a rule in an action between these parties, by which judgment was rendered upon the report. The ground of objection to the acceptance of the report was, the partiality of one of the referees, at and before the hearing ; which seems to have been sufficiently proved by the evidence stated in the exceptions. This proof of bias and strong partiality would have formed a very serious objection to the acceptance of the report, had it stood alone. And it would not have been a valid answer to the objection, that such referee did not discover undue partiality for one of the parties upon the deliberation of the referees, and made no unusual exertion to influence the ■minds of the other referees. It is impossible for the other referees to determine to what extent their own judgments reposed upon the reasonings and suggestions of this individual, or how far their decisions were influenced by his. If parties really intend to have their rights decided by impartial judges,, they are entitled to insist that all shall be impartial.

But volenti non jit injuria. If parties are content to submit questions in controversy to those, who are known to have formed and expressed opinions upon the subject matter, or who are known to have partialities and prejudices for or against the respective parties, an award made by such arbitrators is binding. And it is not unfrequent in practice, for each party to select a friend known to have formed and expressed opinions upon the subject, and preferences for the parties respectively, trusting that these opposite prejudices will balance each other, especially with the aid of an impartial umpire. Without commending the expediency of such references, the Court can entertain no doubt of the validity of an award made by such referees, nor could the parties be heard to impeach it on this ground.

If the objection is known to the party before the hearing and not then disclosed, and no exception taken, the objection must be taken to be waived, and the consent of the parties be presumed, that the hearing shall proceed. It is like the case o., challenge of a juror. If a party knows of any prejudice entertained by a juror, and makes no exception when the jury is empannelled, however good his cause of challenge then is, it must be deemed to be waived. Otherwise, knowing of a secret taint to which the verdict may be exposed, he takes his chance for a favorable verdict, reserving a power to impeach it, should it happen to be against him ; a proceeding inconsistent with the plain principles of fair dealing, and with the frankness which ought to characterize the whole course of judicial proceedings.

In the present case, the evidence is quite sufficient to show, that if the party was not fully apprized of the partiality of the referee before the hearing, he had ample notice to put him upon inquiry, which would have led to the full knowledge of the fact; and had the exception been taken at the hearing, and the referees had persisted in proceeding, it would have been a strong ground of objection to the award. As he was content to proceed with the knowledge of the fact, relying upon the strength of his cause, or the capacity and firmness of the other referees, he must be deemed to have waived his exceptions ; and therefore the judgment of the court below, accepting the report of the referees, must be affirmed.  