PART II. CH. I. S. 1. Judge. Stewards of a horse race. Fluctuating body. French law. Arbitrators by statute. Mining engineer. Manufacturers and workmen. Justice or person appointed by justices. Barrister. Matters in a cause are often referred to the presiding judge as arbitrator (q). Stewards of a horse-race are not disqualified from deciding disputes by reason of their being interested by betting on the race, the parties knowing that it was probable that they might bet. They are not strictly arbitrators ("). The question, what is a reference to arbitrators, has been previously considered (s). A reference may apparently be made to a society consisting of a fluctuating body of members (t). It seems that by the law of France, when parties agree to submit any difference that shall arise to two arbitrators who are merchants, an appointment by one of the parties of a foreigner as arbitrator is not a valid appointment (u). Sometimes by statute the class from which arbitrators are to be selected for settling particular disputes is pointed out. Under the Coal Mines Regulation Act, 1887 (x), the arbitrator is to be a "practical mining engineer or person accustomed to the working of mines," and the umpire to be a county court judge, stipendiary magistrate, recorder, or registrar. Under the 5 G. IV. c. 96, for settling by arbitration disputes between masters and workmen, the referee, if the disputants can agree on one, is to be a justice of the peace; if not, there are to be two arbitrators, one a master manufacturer, or agent or foreman of a master manufacturer, the other a workman in the manufacture respecting which the dispute has arisen (y). Under the Allotments and Cottage Gardens (Compensation for Crops) Act, 1887 (≈), if the landlord and tenant do not appoint an arbitrator within twenty-eight days after the end of the tenancy, justices in petty sessions are to appoint one of their number or some other competent person. On differences arising respecting the expenses of prisoners 226, S. C. Comb. 218. See Hunter (9) Durham County Permanent Ch. 45. (r) Ellis v. Hopper, 28 L. J. Ex. 1; Parr v. Winteringham, 28 L. J. Q. B. 123. P. I. ch. 3, s. 1, d. 2, p. 41. (t) Rathven v. Elgin, L. R. 2 Scotch App. 535. (u) Alivon v. Furnival, 1 C. M. & R. 277. (x) 50 & 51 Vict. c. 58, s. 47. (y) S. 3. (z) 50 & 51 Vict. c. 26, s. 38. from a borough kept in a county gaol, a barrister was required by statute to be the arbitrator (a). The barrister to certify the rules of Savings Banks was by the old statute to decide in many cases as an arbitrator (b), but his functions are now transferred to other persons (c). The Board of Trade and Local Government Board in many cases have by statute to appoint arbitrators (d), whose appointment seems often irrevocable (e). PART II. CH. I. S. 1. Barrister to of savings certify rules banks. Nominee of Board of Trade. settle costs of The costs of the inquiry before a compensation jury or Master to arbitrators under the Lands Clauses Consolidation Act, 1845, compensation are to be settled by one of the masters of the Court of inquiry. Queen's Bench as an arbitrator, not as an officer of the court (f). So a reference was often made to the master under the Master. Common Law Procedure Act, 1854, and the Judicature Act, 1873 (g). judge. It might, under the Common Law Procedure Act, have County court been made to a county court judge, and he could not have declined it (h). But as far as county court judges are concerned, the act was repealed by the stat. 21 & 22 Vict. c. 74, s. 5. A county court judge cannot now in any case act as arbitrator for reward (i). referees. The official and special referees appointed under the Judi- Official cature Acts perform functions analogous to those of arbitrators at common law, and must be guided by the same general principles. deemed officer By the Arbitration Act, 1889, s. 15, all official or special Arbitrator referees or arbitrators on a reference under an order of court or of court. a judge within the act are to be deemed officers of the court. (a) Stat. 5 G. IV. c. 85, s. 2; 5 & 6 W. IV. c. 76, s. 114; 5 & 6 Vict. c. 98, s. 20; 13 & 14 Vict. c. 91, s. 5. (b) 9 G. IV. c. 92, s. 45. (c) 26 & 27 Vict. c. 87, s. 45; 39 & 40 Vict. c. 52, s. 3. (d) 33 & 34 Vict. c. 78, s. 33; the Housing of the Working Classes Act, 1890, 53 & 54 Vict. c. 70, s. 41. (e) Wakefield Corporation v. Wakefield Guardians, 4 Times L. R. 561. (f) Sandback Trustees v. North Staffordshire Rail. Co., 3 Q. B. D. 1; Owen v. London and North Western Rail. Co., 7 B. & S. 758; (g) Cruikshank v. Floating (h) Cummins v. Birket, 27 L. J. (i) The County Courts Act, 1888, 51 & 52 Vict. c. 43, s. 14. PART II. CH. I. S. 2. Arbitrator must be incorrupt. Removal for misconduct. Taking money before award made. Purchasing claims in dispute. Arbitrator must be impartial. SECTION II. OF THE MORAL QUALITIES REQUISITE IN AN ARBITRATOR. It is hardly necessary to state, that in conducting the reference, the first duty of the arbitrator is to be incorrupt and impartial. If there be any ground for imputing corruption, fraud, or partiality to him, the award cannot stand (k). Though the courts will rarely review the bonâ fide exercise of the arbitrator's authority, yet evidence of the merits will always be let in, so far as it may throw light upon his conduct with reference to the above imputations (), but to induce the court to interfere with the award on the ground of misconduct of the arbitrator there must be something more than mere suspicion (m). Under the Arbitration Act the court may now remove an arbitrator or umpire for misconduct (n). Where the arbitrators took money of one of the parties alone for their charges without any bill delivered, and before the making of the award, Lord Hardwicke, C., thought this a sufficient reason to set the award aside, for if this were suffered it would, he said, be hard to distinguish what was corruption (o). It will not be permitted to a person chosen as an arbitrator to buy up the unascertained claims of any of the parties to the reference; or to purchase an interest in those rights upon which he is to adjudicate. Such a proceeding would corrupt the fountain of justice and contaminate the award (p). The arbitrator must also as much as possible keep his mind free from all personal feelings respecting the case, for if an arbitrator use any expressions towards either party, which discover a strong bias or prejudice in his mind, or show that (k) Morgan v. Mather, 2 Ves. 15; Clarke v. Stocken, 2 Bing. N.C. 651; Bac. Ab. Arb. K.; Com. Dig. Arb. C.; Tittenson v. Peat, 3 Atk. 529; Earle v. Stocker, 2 Vern. 251; Burton v. Knight, 2 Vern. 514; Travers v. Ld. Stafford, 2 Ves. sen. 19; Emery v. Wase, 5 Ves. 846; Ld. Lonsdale v. Littledale, 2 Ves. jun. 451; Sturt v. Moggeridge, 2 Tidd Pr. 841, 9th ed. (1) Goodman v. Sayers, 2 J. & W. 249; Anon., 2 Vern. 100. (m) Crossley v. Clay, 5 C. B. 581. (n) 52 & 53 Vict. c. 49, s. 11. (0) Shephard v. Brand, Cas. temp. Hardwicke, 53, S. C. 2 Barnardiston, 463; Bac. Ab. Arb. K. (p) Blennerhasset v. Day, 2 Ball & Beatty, 104. he has been actuated by any hostile feeling, the award may be set aside, and this even where there is nothing to impeach the conduct of another arbitrator, who has joined in the award (2). PART II. CH. I. S. 2. bonâ fide Any private agreement between the arbitrator and a party Private respecting the subject of reference intended to be considered agreement. in the award is objectionable, though perfectly bonâ fide; as, for instance, if the question be respecting the amount of rent a tenant is to pay, the arbitrator should not, in making his valuation, take into account an agreement with himself by the tenant to lay out a large sum upon the premises, of which agreement the landlord has no power to enforce performance (). terms on party. Commissioners appointed by statute to ascertain by their Imposing award the bounds of the respective mines in a certain district, and to fix the rent payable to the Crown by the several miners who work them, are not justified in imposing on a miner the condition, that he shall pay up to the Crown arrears due for the last workings of his mine, before they give him the benefit of the act of parliament by inserting his name and portion of mine in their award (s). SECTION III. OF THE PRINCIPLES BY WHICH THE ARBITRATOR SHOULD BE GUIDED. PART II. CH. I. S. 3. In order for an arbitrator to ascertain what are his powers and duties, he must look in each case to the submission which confers the one, and imposes the other, and gather therefrom the intention of the parties (t), and this intention he should arbitrator. (9) Burton v. Knight, 2 Vern. 515, S. C. Bac. Ab. Arb. K.; Parker v. Burroughs, Colle's Parl. Cas. 257; Ward's case, cited 2 Atk. 155, 396; Chicot v. Lequesne, 2 Ves. sen. 315. (r) Chichester v. M'Intire, 1 Dowl. N. S. 460. (8) Attorney-General v. Jackson, 5 Hare, 355. (t) Samways v. Eldsley, 2 Mod. 73; Winter v. White, 1 B. & B. 350, 357. Characters filled by PART II. CH. I. S. 3. Judge of law and fact. Jury. be careful to carry out (u). The characters which arbitrators have to sustain vary materially according to the effect of the respective submissions. An arbitrator is generally the final judge of law and fact (x). On the reference of an action at the trial, he usually stood in the place of the jury, and his award was looked upon as their Judge of Nisi verdict (); at times he was clothed with many of the powers of a judge at Nisi Prius (≈); and occasionally some of the functions of the Court in Bank devolved upon him («). Prius. Court in Master in Lord Chancellor. Attorney- Dictator. Principles of decision generally. With respect to matters in Chancery referred to a master, sometimes he represented only a master of that court, and his award was open to revision as a master's report (b); at other times his decision was looked upon as that of the Chancellor himself (c); under special circumstances he was vested with the powers of the Attorney-General as to informations in charity cases (d). An arbitrator is often also a sort of dictator armed with powers beyond those of any court of justice to control the future conduct of parties, and to regulate their enjoyment of their property (e). A very important question here presents itself for solution. According to what principles is the arbitrator to act? What control ought the rules of the courts to have over his decision? The following proposition (which, however, only gives a partial answer) is hazarded as the safest general rule that can be drawn from a consideration of the cases-that an arbitrator should endeavour to arrive at his conclusions upon the same rules and principles which would have actuated the tribunal or tribunals for which he is substituted in coming to a decision. (u) Hooper v. Balfour, 62 L. T. 646; Couvela v. Volkart, 4 Times L. R. 209. (x) Morgan v. Mather, 2 Ves. 17; Dick v. Milligan, 2 Ves. 23; Armstrong v. Marshall, 4 Dowl. 593; Perriman v. Steggall, 9 Bing. 679; Angus v. Redford, 11 M. &. W. 69, S. C. 2 Dowl. N. S. 735. (y) Angus v. Redford, 11 M. & W. 69, S. C. 2 Dowl. N. S. 735; Lee v. Lingard, 1 East, 400; Borrowdale v. Hitchener, 3 B. & P. 244; Bury v. Dunn, 1 D. & L. 141. (z) Caila v. Elgood, 2 D. & R. 193. (a) Allen v. Lowe, 4 Q. B. 66. (b) Knox v. Simmonds, 1 Ves. jun. 369; Cruikshank v. The Floating Swimming Baths Co., 1 C. P. D. 260, S. C. 45 L. J. Com. Law, 684. (c) Pitcher v. Rigby, 9 Price, 79. (d) Prior v. Hembrow, 8 M. & W. 873. (e) Wood v. Griffith, 1 Swanst. 43; Boodle v. Davies, 3 A. & E. 200. |