(m) If one party to a statute submission make out and sign his demand, and by agreement between them, at the request of the other party, it is omitted to be annexed until the close of the investigation before the referees, and it is then annexed, the opposing party cannot avail himself of this error.

16

(2) A statute submission of "all demands after" a specified day, must have a specification of the claims annexed.17

(0) But a submission "of all demands except heirship," entered into by parties between whom there existed no controversy respecting inherited estates, no specific demand is necessary.18

3. All the referees must meet and hear the parties; but a majority may make the report, which shall be as valid as if signed by all, if it appears by the report, or certificate of the dissenting referee, that all attended and heard the parties. They may allow costs or not to either party unless special provision is made therefor in the submission, but the court may reduce their compensation; and any referee may swear witnesses.1

19

(p) If a report made by three referees be recommitted, and one of them neglects or refuses to sit again, the other two are competent to make a new award similar to the former, with additional costs.20

(9) After an arbitrator has made and published his award, he cannot reëxamine the merits of the case, even to correct an error, without consent of parties or a recommittal.21

(r) When two arbitrators are selected, who are to choose an umpire in case of disagreement, and such umpire is selected, but not in writing, and the parties acquiesce by submitting questions to the three, a subsequent objection to the competency of the umpire comes too late 22 And when the umpire takes the testimony from the other referees, and neither the umpire nor either party expresses a wish that such referee should hear the witnesses, the objection cannot subsequently be taken.22

(s) When a report of the majority of referees is recommitted, for the specific purpose of having them certify the action of the disagreeing referee, they may thus amend their report without the knowledge or presence of their dissenting associate.23

4. The report shall be made to the court and within the time specified in the submission; one of the referees shall deliver it into court, or it shall be sealed up and sent sealed to the court, and opened by the clerk.24

10 Harmon v. Jennings, supra.-17 Pierce v. Pierce, 30 Me. 113.-18 Kendall v. Bates, 35 Me. 357.-13 R. S. c. 108, §3.-20 Peterson v. Loring, 1 Me. 64.-21 Wood bury v. Northy, 3 Greenl. 81.-22 Knowlton v. Homer, 30 Me. 552.-23 Brann v. Vassalboro', 50 Me. 64.-24 R. S. c. 108, § 4.

(t) An action at law cannot be sustained upon a report of referees, made under a statute submission; the only remedy is that specified in the submission.25

(u) If a report is not made within the time specified in the submission, it will be inoperative; and when it is made to the court after the time limited in the submission, a recommittal by the presiding judge will not give the referees subsequent jurisdiction.26

(v) A referee under a submission may, by an alternative report, present legal questions for the consideration of the court. Such report must not recite tlre testimony, but the facts as the referee has found them from the testimony; and a submission containing a provision that the referee should report the facts, is not complied with by a report of the evidence only; and if such condition be not fulfilled, the report is to be taken as if it contained no such provision.27

5. The court may accept, reject, or recommit the report, and either party may file exceptions thereto; if recommitted, the referees shall notify the parties of the time and place of a new hearing; and when the report is accepted, judgment shall be entered thereon as in case of submissions by rule of court; and either party may bring a writ of error to reverse such judgment.28

(w) In a submission, by parties who had been copartners, of all demands of every description, whether arising out of their business as partners or out of any other transactions, the referees cannot adjudicate upon the property belonging to the firm, or the debts due from the firm.29 The interest which the members of the company have in such matters, is not a demand by one of them against the other.29

(x) Upon the party alleging that some of the matters in controversy have not been decided, rests the burden of proving that such matters were made known to the referees, and that they were not decided.29

(y) This discretionary power of the court to accept, reject, or recommit a report of referees, is only a judicial one, to be exercised upon consideration of the facts and circumstances.of the case. Where no newly discovered evidence is pretended, and no prejudice, bias, or mistake on the part of the referees established, their report must be accepted.3) The court may recommit a report against the written protest of one party, and the referees may make a new report after the time specified in the submission. 30

25 Sargent v. Hampden, 32 Me. 78.-26 Field v. Bissell, 36 Me. 593.-27 Bar nard v. Spofford, 31 Me. 39.-28 R. S. c. 108, § 5.-29 Hayes v. Forskoll, 31 Me. 112.-30 Long v. Rhodes, 36 Me. 108; Hickey v. Veazie, 59 Me. 282.

(2) A report under a submission as to the ownership of a yoke of oxen (in which three persons claimed separate interests), that one of them should pay a certain sum of money to each of the others, is sufficient evidence that the ownership of the oxen is adjudged to be in him who is to pay the money; and where the report thus settles the title of the property, and the other claimants are to receive their just proportions of its value, no objection of want of mutuality can be raised.31 Nor is an alternative mode of payment therein set forth, conferring a privilege upon the party, if he should accept it, but otherwise to pay a sum certain, any objection to the validity of the report.31

(a) A statute submission requires an independent entry, and is the subject-matter of an independent judgment and execution.32 And no valid judgment can be rendered under such a submission, except by consent, without allowing to the ag grieved party the time prescribed by the statute (R. S. of 1871, c. 77, § 21), in which to present exceptions.32 And until the report has passed through all the ordeals of the law, it is not a bar to a pending suit.32

(b) Referees need not be sworn, notwithstanding the agreement to refer confers upon them the powers of commissioners, who, by law, must act and determine on their oaths.33

(c) Exceptions to the report of referees are not sustainable if objections, in writing, were not filed, as by the 21st Rule of Court.34

(d) To be conclusive upon the parties to it, an award must contain, in express terms, a clear and distinct determination of the exact point submitted.35

(e) The burden is upon the party objecting to a report of referees to establish the facts upon which he relies.35

1. Of acknowledgment.

(f) FORMS.

[Name of county], ss., [date]. Then personally appeared the above-named A. B. and C. D., and acknowledged the above instrument by them signed to be their voluntary act.

Before me,

2. Form of demand annexed.

C. C., Justice of the Peace.

A. B., of, &c., demands of C. D., of, &c., the sum of being the amount of the following account, to wit: [Set out the account.]

3. Notice to parties by the referees.

dollars,

A. B.

To A. B., of, &c.

We have appointed the

-day of

18-, at o'clock in the

31 Hanson v. Webber, 40 Me. 194.-32 Crooker v. Buck, 41 Me. 355.-33 Bradstreet V. Erskine, 50 Me. 407.-84 Hall v. Decker, 51 Me. 31.-35 Wyman v. Hammond, 55 Me. 534.-36 Rawson v. Hall, 56 Me. 142.

;

noon, and the office of ―, in —, in said county, the time and place for hearing the parties in the case submitted to us by C. D. and yourself.

"to us.

وو

J. A.,
S. C.,

M. W.,

Referees.

Notice may be given by the chairman alone, and the above form may be varied by using "I" instead of "we," and "submitted to S. C., M. W., and myself," instead of (Signed), J. A., Chairman. The referees are judges of what is "due notice," and they may give such notice as they see fit, provided it is a reasonable notice. The report may be sealed and directed in an envelope to the court as follows:

4. Direction.

To the Hon. the Supreme Judicial Court, next to be holden at - within and for the county of -, on the of—, A. D. — Inclosed is the report of the referees to whom was referred the claim of A. B. against C. D.

Sealed up by J. A., Chairman of Referees.

5. Form of award. The referees named in the annexed agreement having given the parties due notice of the time and place of hearing, and having heard them, and examined and considered their allegations and evidence, do award that the said A. B. recover of the said C. D. the sum of dollars, and costs of reference taxed at 18— J. A.,

Referees' Fees, $—.

S. C., Referees.

M. W.,

CHAPTER XXII.

FORCIBLE ENTRY AND DETAINER.

TENANCIES.

1. A process of forcible entry and detainer may be maintained against a disseizor, who has not acquired any claim by possession and improvement; and against a tenant holding under a written lease or contract, or person holding under such tenant, at the expiration or forfeiture of the term, without notice, if commenced within seven days from the expiration or forfeiture of the term; and against a tenant at will, whose tenancy has been terminated as provided in the following section.1

1 R. S. c. 94, § 1.

(a) The process cannot be maintained by proof of a forcible detainer after the making of the process, and before the service thereof, on the same day.2

(b) Where the occupant of land held under a written lease from the owner for the term of one year, and held over after the expiration of that term for nearly two years, and neglected to pay any rent, he is only a tenant at will, and after the expiration of the thirty days' notice to quit, he will be liable to the process of forcible entry and detainer.3

(c) A tenancy at will must first be terminated before he will be liable to this process.*

(d) From the mere continuance of occupation by the lessee after the expiration of a written lease, there arises no legal presumption of a tenancy at will. But a tenant, holding under a lease for a definite time, may, by a delay of the lessor to enter after its termination, acquire the rights of a tenant at will."

(e) This process is not adapted to a case where the relation of mortgager and mortgagee exists; for the mortgager, having a right to redeem, should not be regarded as a disseizor.?

(f) But where a mortgagee of a lot of land with a house on a portion of it, purchased by sheriff's sale the mortgager's right in equity to redeem; and, in the temporary personal absence of the mortgager, whose family still remained in the house, the mortgagee entered peaceably into the possession of a part of the land, without entering the house; and, while so in possession, the mortgager returned and expelled him by force, this expulsion constituted the mortgager a disseizor, and the disseisin was such as entitled the mortgagee to this process.8

(g) Where an execution in favor of an insolvent bank has been legally extended on real estate, and seisin thereof delivered to the receivers, they may maintain, in their own names, this process against the execution debtor, provided he continues in possession without their consent; and it may be commenced and maintained before the expiration of the time for the redemption of the levy.9

(h) It is not essential to the maintenance of this process that the defendant should be tenant to the plaintiff; but it is sufficient if the defendant be a disseizor of the plaintiff, and has not acquired any claim by possession and improvement.9

(i) The writ of replevin was never intended as a means for the summary removal from a dwelling-house of a tenant at will, who has a possession thereof, which he has a right to retain until removed by due process of law for such cases made and provided.10

2 Clapp v. Paine, 18 Me. 264.-3 Wheeler v. Cowan, 25 Me. 283.— Wheeler v. Wood, 25 Me. 287.5 Lithgow v. Moody, 35 Me. 214.-6 Chesley v. Welch, 37 Me. 106. Reed v. Elwell, 46 Me. 270; Dunning v. Finsin, 46 Me. 546.-8 Dyer v. Chick, 52 Me. 350. Baker v. Cooper, 57 Me. 388.-10 Smith v. Grant, 56 Me. 255.