PART II. CH. III. 8. 3. of law, of death being a revocation, it was suggested by Lord Eldon that the contract might be framed so as to prevent its operation (p); and it was recommended by Lord Tenterden (7) being a rethat the parties should insert a clause in their submission pro- vocation. viding that the death of either or any of them should not revoke the authority of the arbitrator, and that the award, in case of a death, should be delivered to the personal representative. Clauses to this effect have been generally adopted since, as they have been decided to be perfectly valid and efficacious to keep alive the authority of the arbitrator (r). The usual clause runs thus: "That the award is to be de- Usual form of livered to the parties, or either of them, or if either of them the clause. should be dead before the making of the award, to their respective personal representatives requiring the same." From these words the law will imply a stipulation that the arbitrator's authority is not to be determined by a death, without there being any express provision to that effect (s). The clause in question amounts to an agreement that the Effect of the personal representative shall pay any sum of money found clause. due from the deceased either in his lifetime or after his death. The personal representatives, indeed, cannot be compelled to appear before the arbitrator, nor can the award be enforced by attachment against them; but the assets of the deceased are bound by this agreement as by any other simple contract (f); and the executors will be bound to contribute to the costs of the reference and award which have been paid by a surviving party to the solicitor jointly employed by him and the deceased to conduct the reference on their behalf (u). In an action of tort referred to arbitration, before verdict, No effect in where the plaintiff died, and the award was made afterwards, tort. it was held that this clause had no effect, and that the award was a nullity, as the right of action for the tort was determined by the death (x). (p) Blundell v. Brettargh, 17 Ves. 232. (q) Cooper v. Johnson, 2 B. & A. 394; Prior v. Hembrow, 8 M. & W. 873. (r) M'Dougal v. Robertson, 4 Bing. 435; Dowse v. Coxe, 3 Bing. 20, S. C. 10 Moore, 272. (8) Clarke v. Crofts, 4 Bing. 143; Lewis v. Winter, W. W. & D. 47. (t) Lewin v. Holbrook, 2 Dowl. N. S. 991; Tyler v. Jones, 3 B. & C. 144; Dowse v. Coxe, 3 Bing. 20. (u) Prior v. Hembrow, 8 M. & W. 873. (x) Bowker v. Evans, 15 Q. B D. 565. PART II. CH. III. s. 3. survivors. As against the surviving parties the award in an action of contract may generally be enforced by attachment. If, howEnforcing award against ever, on the motion thus to enforce it, it can be made to appear to the court that the party called upon to perform the award has incurred any danger or lost any benefit by reason of the personal representative of the deceased party not having been brought before the arbitrators, in such case terms and conditions would probably be imposed by the court calculated to remove such danger or inconvenience; or the party would be left to his remedy by action on the award. But where the award is made in favour of the side of the deceased no such difficulty seems likely to occur (y). Death no revocation under the Lands, Rail- It is provided in the Lands Clauses Consolidation Act, 1845 (2), the Railways Clauses Consolidation Act, 1845 (a), and the Companies Clauses Consolidation Act, 1845 (b), with respect to references under those acts, that after the appointment of an arbitrator by either party, the death of either party shall not operate as a revocation. (y) Hare v. Milne, In re, 6 Bing. N. C. 158. See Wrightson v. Bywater, 3 M. & W. 199. (z) 8 & 9 Vict. c. 18, s. 25. See Appendix of Statutes. (a) 8 & 9 Vict. c. 20, s. 126. See Appendix of Statutes. (b) 8 & 9 Vict. c. 16, s. 128. See Appendix of Statutes. CHAPTER IV. THE POWER AND DUTY OF THE ARBITRATOR BEFORE PART II. CH. IV. AN endeavour has been made to comprise in this chapter a consideration of the chief things an arbitrator either may do, or must do, in the fulfilment of his office, up to the time Scope and of making his award. The first section treats largely of the powers to be exercised, and of the duties to be performed, by the arbitrator in the ordinary course of a reference, and also includes some provisions respecting the attendance of parties and witnesses before him. The second section, after showing the arbitrator's want of power to delegate his authority to another, discusses how far he may take, and adopt as his own, a scientific opinion on matters of fact, or a legal opinion as to a point of law. In the third section are laid down rules for the conduct of the case, when there are several arbitrators jointly called upon to act, instead of one only. The fourth section concludes the chapter with a dissertation on the mode of appointment, and on the powers and duties of an umpire. contents of the fourth chapter. SECTION I. OF PROCEEDINGS IN THE REFERENCE. .I. Serving the submission on the arbitrator.]-When a cause is referred at Nisi Prius, the solicitor of one of the parties PART II. CH. IV. S. 1. PART II. CH. IV. S. 1. Procuring and serving order of reference. Power of To fix time and place of meeting. should procure the order of reference from the proper officer of the court (a), and serve it on the arbitrator without any great delay, for the original time limited for making the award is often very short; and if it expire before the submission is served on the arbitrator, the reference would be entirely defeated (b), unless the court or a judge on special motion should think fit, in the exercise of their discretion under the statute (c), to enlarge the time and thus to remedy the neglect. The submission in general should be left with the arbitrator, as it is the document which authorises his proceedings and defines his powers. He usually requires it, also, for the purpose of from time to time making the necessary indorsements on it. It is advisable, therefore, to take a copy of it before it is served. 11. Power of the arbitrator to regulate the proceedings in the reference.]-The mode in which the reference is to be conducted used to depend entirely upon the arbitrator. The courts will not often review his discretion, provided he acts within his authority according to the principles of justice, and behaves fairly to each party (d). It usually lies entirely with the arbitrator to appoint the time and place of meeting for proceeding in the reference, and it is the duty of the parties to attend to his appointment (e). In general, soon after the submission is made, the party who wishes to go on with the reference will call upon the arbitrator, deliver to him the submission, and request him to appoint a meeting. It is usual to try to arrange some day by agreement that is convenient for all parties; but if such an arrangement cannot be made and it be necessary for the arbitrator to make the appointment, he generally gives to the party applying for it a written appointment, specifying the time and place at which the parties and their witnesses are to appear (f). The arbitrator ought not to fix on too early a day, considering that he must give the parties time to get up their proofs (a) Arch. Prac. 1324, 13th ed. ; 1606, 14th ed. (b) Doe d. Fisher v. Saunders, (c) 52 & 53 Vict. c. 49, s. 9. Haigh v. Haigh, 31 L. J. Ch. 420, 67. (f) For forms of appointment see Appendix of Forms, p. 752. and collect their witnesses; nor, when either party is anxious to press on the case, ought he on light grounds to appoint a distant day, for delay in the decision often causes serious inconvenience to the party entitled to recover, and may amount even to practical injustice. PART II. CH. IV. S. 1. The party obtaining the written appointment should serve Serving a copy of it on his opponent without delay, or at least within appointment a reasonable time before the day of meeting. on opponent. arbitrator to The arbitrator may revoke the appointment he has given Power of if he shall think fit. If from any cause either party find that rescind he will not be able, or that it will be very inconvenient for appointment. him to attend at the specified time, he should give timely notice of it both to his opponent and to the arbitrator; and the latter will in his discretion either insist on his attendance or put off the meeting and appoint another day (g). But the discretionary power of the arbitrator in the whole conduct of the case, though large, never was absolute (except perhaps in the case where a government board was made an arbitrator by statute) (h), and his decision would have been reviewed by the courts and his award set aside if it were made to appear that in the course which he had pursued he had acted, though with the best intentions, unfairly to either party (i). The exercise of his discre tion when reviewed by the court. It is the duty of a party who intends to employ counsel in Notice of the reference to give notice of his intention to his opponent counsel. attendance by previous to the meeting, in order that the latter may, if he please, provide himself with the like assistance. On an occasion where no such notice had been given, and one side appeared by counsel, and the other side complained of the want of notice, and begged for a postponement in consequence with a view to instruct counsel on his part, and the arbitrator refused to put off the meeting, the court held, that in refusing the request he had not performed his duty of acting fairly between the parties, and consequently annulled the award (k). Generally, the inquiry before an arbitrator is assimilated Ordinary as near as may be to the proceedings on a trial in the courts. reference. (g) See Eastham v. Tyler, 2 Bail Court Rep. 136. (h) The Newry and Enniskillen Rail. Co. v. The Ulster Rail. Co., 2 Jur. N. S. 936, S. C. 8 De G. M. & G. 487. (i) Haigh v. Haigh, 31 L. J. Ch. 249. course of a |