FOR REFER ENCE TO ARBI TRATION. referred to an arbitrator, named, the matters in dispute, or performed by, or are applicable to them, or either of them, their, or either of their heirs, executors, or administrators), covenant with the said E. F. and G. H., their heirs, executors, and administrators, in manner following; (that That it shall be is to say): THAT it shall be, and it is hereby referred to S. S., Esquire, barrister-at-law, one of her Majesty's counsel learned in the law, (an arbiter indifferently elected, and named on the respective parts and behalves of all the said parties hereto respectively, and their respective heirs, -to decide on executors, and administrators), to arbitrate, determine, and award of and concerning all, and all manner of difficulties, questions, matters, and things, which have arisen, or which may arise between the said parties hereto respectively, or their respective heirs, executors, or administrators, in respect of, or in anywise relating to the said sale, and generally of, and concerning the premises, including therein the question (ƒ), whether the said E. F. and G. H. were, or were not duly authorized to make the aforesaid sale; and whether the said purchasers ought, or ought not to complete the said purchase, and the aforesaid claim to compensation; and any question or questions as to a compensation being made to either party, in respect of the delay which hath arisen in or about the completion of the said purchase, or in any other respect; and if the said arbiter shall be of opinion that the said present sale ought not to be carried into effect; it shall be lawful for him, As to the conclusiveness of the arbitrator's decision on law. (f) If a point of law be referred to the decision of an arbitrator, the parties are bound by his decision, whether right or wrong, unless fraud or corruption is imputable; (Steff v. Andrews, 2 Mad. 6; Wood v. Griffith, 2 Swans. 52); and the arbitrator's decision as to the admission of evidence is conclusive. Campbell v. Twamlow, 1 Price, 81; Wohlenberg v. Lageman, 6 Taunt. 254; 1 Marsh. 579). And where matters are referred generally to an arbitrator, who is a lawyer, the referee is thereby made judge of the law as well as the fact. (Perriman v. Steggall, 9 Bing. 679, S. C.; 3 M. & Scott. 93; see, too, Cramp v. Symons, 1 Bing, 104; 7 Moore, 434; Williams v. Jones, 5 Man. & Ryl. 3). See further on this subject, Watson on Arbitration, 226, 234. (Symes v. Goodfellow, 2 Bing. N. C. 532; Steeple v. Bonsall, 4 Ad. & Ell. 950). FOR REFERENCE TO ARBI TRATION. if he shall see fit so to do, to fix the price and terms (g) with power to take opinions, &c. That parties will observe the tion. (g) There is no doubt, that an agreement to sell upon terms to be Agreement to fixed by arbitrators, is binding; and that when the terms have been sell at a valuafixed, according to the agreement, a court of equity will decree a specific performance. (Blundell v. Brettargh, 17 Ves. 241; Milnes v. Gery, 14 Ves. 400; Chichester v. M'Intyre, 1 Dow, N. S. 460, S. C.; 4 Bligh, N. S. 78). But if the arbitrators do not fix the terms, the court will give no assistance. (Milnes v. Gerý, ubi supra; Hopcraft v. Hickman, 2 Sim. & Stu. 130; Emery v. Wase, 5 Ves. 846). Where on an agreement for a sale of lands, the title was objected to, and all questions were referred to arbitration; and the arbitrator decided, that the purchaser should take the title with an indemnity; it was held that he had exceeded his authority, and that the award was bad. (Ross v. Boards, 3 Nev. & Per. 382). (h) An arbitrator has a right to take the opinions of professional Arbitrator's or other qualified persons, for the purpose of enabling him to form power to take opinions and his decision. (Hopcraft v. Hickman, 2 Sim. & Stu. 130; Emery v. advice. Wase, 5 Ves. 846, 848). But where there are more arbitrators than one, those arbitrators have no authority to agree to take the opinion of another person, and to be bound by it, whatever it shall be. (Hopcraft v. Hickman, ubi supra). It is desirable, however, to give the arbitrator specific authority to call in all assistance which he shall deem expedient; and to provide, that the cost of such assistance shall be borne by the parties to the reference, for otherwise, as the arbitrator takes opinions for his own satisfaction, it is by no means clear, that he could call on the parties to reimburse him the expenses which he might so incur. FOR REFER TRATION. or administrators, shall and will, on their respective parts ENCE TO ARBI and behalves, in all things, well and truly, stand to, obey, abide by, observe, perform, fulfil, and keep (i) the award, order, arbitrament, final end, and determination of the said S. S. of and concerning the differences, questions, matters, things, and premises, so agreed to be referred to him the said arbiter, as hereinbefore is mentioned, so as the award of the said arbiter be made in writing under his hand, and ready to be delivered (k) to the said parties respectively, Award to be ready by a given day. bitration. Revocation of (i) Before the statute 3 & 4 Will. 4, c. 42, it was competent for reference to ar- either of the parties to a reference to arbitration, to revoke the reference at any time before the award was made. (Milne v. Gratrix, 7 East, 608; King v. Joseph, 5 Taunt. 452). Such a revocation, however, was a breach of the agreement to abide by and perform the award; (King v. Joseph, ubi supra; Warburton v. Storer, 4 B. & C. 103, S. C.; 6 Dow. & Ry. 213); and if the reference had been made a rule of court, a revocation of the authority was a contempt of court. (Haggett v. Welsh, 1 Sim. 134). But, by the stat. 3 & 4 Will. 4, c. 42, s. 39, no reference to arbitration containing an agreement, that it shall be made a rule of court, is revocable, without the order, either of the court or of a judge. (See further, on the subject of revocation, Watson on Arbitration, 21, 35). As to the delivery of the award on the day fixed. (*) Where the day is fixed for the delivery of the award in the manner in which it is fixed in the precedent, if the award be actually made on the day, it is then ready to be delivered; and in pleading, it is not necessary to aver that the award was ready to be delivered. But if either of the parties do, on the last day, request the arbitrators to deliver the award to him, and they neglect, or refuse to do so, the reference is void; but the matter must be specially pleaded. (1 Wms. Saund. 327 b. and the cases there cited; Brown v. Vawser, 4 East, 584). An award is to be considered as published within the meaning of the statute 9 & 10 Will. 3, c. 15, when the parties have notice that it is ready for delivery, on payment of the reasonable charges. (Musselbrook v. Dunkin, 9 Bing. 605, S. C.; 2 M. & Scott, 740; see further, Watson on Arbitration, 105, 114). It is said that, if no time is fixed, within which the award is to be made, still the arbitrator must make the award within a reasonable time, of which the court shall judge. (Curtis v. Potts, 3 Mau. & Sel. 145, and cases there cited; Macdougall v. Robertson, 2 You. & Jerv. 11). Of course, however, a time should always be fixed with a limited power to the arbitrator of enlarging it. If the reference contain an agreement for making it a rule of court, the time may be FOR REFERENCE TO ARBITRATION. Award to be ready by a given day. That parties will be exa mined, and fur nish evidence. or their respective heirs, executors, or administrators, or such of them as shall desire the same, on or before the day of now next ensuing, or on or before such subsequent day, not exceeding calendar months from the day of the date of these presents, as the said arbiter shall, at any time, or from time to time, by writing, under his hand. appoint: THAT the said parties hereto respectively, and their respective heirs, executors, or administrators, shall and will, if the same shall be required by the said arbiter, attend personally upon him, and submit to be examined relative to the premises; and shall and will produce to, and deposit with, the said arbiter, all such deeds, evidences, letters, papers, and writings, relative to the premises, as shall be in the possession or power of the said parties respectively, or their respective heirs, executors, or administrators; and as the said arbiter may wish to peruse or inspect; and shall and will, so far as in them respectively may be, furnish, or cause to be furnished, the said arbiter with all such documents, proofs, and evidence, and do or cause to be done, all such acts and things for better enabling him to make the said award, as the said arbiter shall require (7). THAT the said parties That witnesses enlarged by the court, or a judge thereof. See 3 & 4 Will. 4, c. 42, sect. 39; Burley v. Stephens, 1 Mee. & Wels. 156. See Watson on Arbitration, 114, 121. (1) The clause in a reference to arbitration, authorizing the arbitrator to examine the parties, empowers him to examine either of them to a point upon which no other evidence can be adduced on the same side. (Warne v. Bryant, 3 B. & C. 590; S. C. 5 D. & R. 301). And to waive the objection taken to the competency of a witness, that he has such an interest that he ought to have been made a party. (Lloyd v. Archbowle, 2 Taunt. 324). And it is no sufficient reason for revoking a reference to arbitration, that one party has died, so that the other cannot have the benefit of having him examined. (Smith v. Fielder, 10 Bing. 306). See further, Watson on Arbitration, 102-105. Before the act, 3 & 4 Will. 4, c. 42, it seems that there was no power in an arbitrator, or in the court, to compel the attendance of witnesses; (Wansel v. Southwood, 4 Man. & Ry. 359); and see the Second Report of the common law commissioners; but, by sect. 40 of may be examined on oath. As to the exa- FOR REFER ENCE TO ARBI TRATION. respectively, or their respective heirs, executors, or administrators, if examined, and all other witnesses who shall be produced to give evidence before the said arbiter, of and concerning the premises, shall, (if required by the opposite party, or the party against whom such witnesses shall be produced), and also, any surveyor or surveyors, or other person or persons, who may be called upon by the said arbiter as aforesaid, shall, (if the same shall be thought proper by the said arbiter), be examined upon oath, or upon their affirmation, in cases where affirmation is allowed That pending by law instead of oath (m). THAT the said action, now suspended, and depending between the said parties, shall be suspended, no further legal and no further proceedings had therein during the said proceedings taken. reference; and that neither party, (including therein the representatives of any person or persons dying), shall or will, during the said reference, commence or prosecute any action, suit, or proceeding in any court of law or equity, against each other, (including representatives as aforesaid), action shall be As to examina the above act, whenever the submission contains an agreement for making it a rule of court, the court, which is mentioned in the submission, or any judge, by rule or order, may command the attendance and examination of any person to be named, or the production of any documents to be mentioned in such rule or order; and disobedience is to be deemed a contempt, subject to the rules as to notice, and costs and time of attendance in the act mentioned. (m) Previously to the stat. 3 & 4 Will. 4, c. 40, an arbitrator tion upon oath. could not be empowered to examine upon oath. (Halfhide v. Fenning, 2 Bro. C. C. 336; 6 Ves. 280). But by the above statute, section 41, it is enacted, that when it shall be agreed in any submission, containing an agreement, to make it a rule of court, that the witnesses shall be examined upon oath; the arbitrator or umpire, or any one arbitrator, may, and are required to administer an oath to such witnesses, or to take their affirmation in cases where affirmation is allowed by law instead of oath, and perjury may be assigned on such oath or affirmation. It was held, before the statute, that an award was not to be set aside on the ground of the witnesses not having been examined upon oath, if the objection was not taken at the examination. (Ridout v. Pye, 1 Bos. & Pul. 91). As to the cases in which affirmation is allowed by law instead of oath, see 7 & 8 Will. 3, c. 34; 3 & 4 Will. 4, c. 49, c. 82; and 1 & 2 Vict. c. 77. |