PART II. CH. IV. S. 1. under the 1845 (p), the Railway Clauses Consolidation Act, 1845 (q), the Railway Companies Arbitration Act, 1859 (r), and the Lands, Rail- Companies Clauses Consolidation Act, 1845 (s), arbitrators or umpires appointed under those statutes "may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose." And they should examine them on oath unless the solemnity is dispensed with (†). ways, and Companies Clauses Acts. Form. Evidence by affidavits, when admis sible. Arbitrator under County Courts Act. Attempt to mislead arbitrator. No particular form of words is necessary to make the oath good in law (u). In the case of an ordinary reference, if the submission provided "so that the witnesses be examined on oath," the award would be set aside if affidavits were read (). It may here properly be noticed, that when a cause or other matter was referred by rule of court to the master, he was authorized to receive affidavits only, and not vivâ voce evidence, unless the court specially empowered him so to do (y). Previous to the statute 14 & 15 Vict. c. 99, s. 16, an arbitrator appointed under s. 77 of the County Courts Act, 9 & 10 Vict. c. 95, had no authority to administer an oath to a witness. If he did, and the witness swore falsely before him, the latter could not be punished for perjury (z). It may here be noticed that persons are liable to punishment for attempting to deceive an arbitrator in other ways than by perjury. The Court of Crown Cases Reserved held that manufacturing false evidence with intent to mislead a judicial tribunal which might be called into existence was an indictable misdemeanour at common law. Thus, when a man fraudulently tampered with samples of grain, taken according to the custom of the trade for the usual arbitration in case of dispute, with intent to make the quality appear different, he was held to be guilty of a misdemeanour, even though no arbitration took place (a). (p) 8 & 9 Vict. c. 18, s. 32. See Appendix of Statutes. (9) 8 & 9 Vict. c. 20, s. 133. See Appendix of Statutes. (r) 22 & 23 Vict. c. 59, s. 18. See Appendix of Statutes. (s) 8 & 9 Vict. c. 16, s. 132. See Appendix of Statutes. (t) Wakefield v. Llanelly Rail., &c. Co., 34 Beay. 245. (u) See the forms of oaths and affirmations in the Appendix of Forms. (x) Banks v. Banks, 1 Gale, 46. Noy v. Reynolds, 4 N. & M. 483. (z) R. v. Hallett, 20 L. J. M. C. 197. (a) Re Vreones, (1891) 1 Q. B. 360; 7 Times L. R. 223. PART II. CH. IV. S. 1. Arbitrator VI. Duty of the arbitrator to hear the evidence.]-The arbitrator should hear all the evidence material to the question which the parties choose to lay before him as on a trial before should hear a jury. It has been said that he may exercise some discretion all the as to the quantity of evidence he will hear (b); but declining to receive evidence on any matter is, under ordinary circumstances, a delicate step to take, for the refusal to receive proof where proof is necessary is fatal to the award (c). In order that the above statement may not give rise to any misconception, it may here be proper to call attention to the wide distinction in principle between refusing to hear evidence on any particular matter, and rejecting a piece of evidence deemed by the arbitrator inadmissible, for we shall see further on, that the exercise of the arbitrator's judgment in receiving or rejecting evidence according to his opinion as to its admissibility is not open to review (d). evidence. must be tendered. In order to make out a case entitling the party to impeach Evidence the award, the witnesses must be distinctly tendered to the arbitrator for hearing. It is not enough to put an abstract proposition to an arbitrator, and upon his answer to decline to give evidence or prefer a claim. The party should tender a specific case and specific evidence (e). Further on it will be shown how the direction of the court How arbitrator may be may be obtained to set the arbitrator right on a point of law set right. during the reference (ƒ). without hear. If an arbitrator, to whom an action for not repairing a Awarding house has been referred, make his award on a view of the ing evidence. premises without calling the parties before him, the court will set aside the award; for, though the premises may almost tell their own tale, yet there may be other facts which ought to be inquired into, such as payments by the party, or excuses for not repairing (9). Still less can an award stand where the arbitrator hears Hearing one one side only (h). A coachmaker to whom it was referred to side only. determine whether a phaeton had been built in accordance (b) Nickalls v. Warren, 6 Q. B. 615; per Lord Denman, C. J., 618. (c) Johnstone v. Cheape, 5 Dow, 247. (d) See P. II. ch. 4, s. 1, d. 11. Craven v. Craven, 7 Taunt. 644; Grazebrook v. Davis, 5 B. & (f) See P. II. ch. 4, s. 1, dd. 15 (g) Anon., 2 Chitt. Rep. 44. PART II. CH. IV. S. 1. When arbitrator may evidence. with a contract, after inspection of the phaeton refused to examine the witnesses tendered by the plaintiff, though he heard the defendant's witnesses. He was held bound to have received the testimony of the plaintiff's witnesses, however little he might have thought that their evidence would make him alter the opinion which he had formed on the inspection (i). Even when the refusal to hear one side is not wilful, the award will be bad. For where the arbitrator thought it necessary before decision to have the admission of the parties in writing that they had nothing further to offer, and that they desired a decision on the case as it stood, and was led to believe that a letter to that effect, signed by all the parties, was in the hands of the clerk to the submission (the reference being on a Scotch submission), and stated on the face of the award that he had considered that letter, and it afterwards appeared that one of the parties had made no such admission, and had signed no such letter, and had material evidence still to produce, and on that account applied to the court to have the award set aside; it was held by the House of Lords (reversing the decision of the Court of Session) that the award ought not to stand, and Lord Eldon said, "By the great principles of eternal justice, which is prior to all these acts of sederunt, regulations, and proceedings of court, it is impossible that an award can stand where the arbitrator hears one party and refuses to hear the other" (k). But when the submission recited that the arbitrator had refuse to hear been appointed on account of his skill and knowledge of the subject, and one of the parties brought before him a statement of certain facts which he alleged to be material, and offered to support it by proof, the House of Lords held the arbitrator justified in refusing to receive it, if, taking all the matters alleged to be facts into consideration, yet having his own local knowledge to guide him, and all the circumstances in his view, he felt that such facts would have no effect upon his determination (7). When pecu In a later case, when it was referred to surveyors to settle in the matter. the amount of rent and the other terms of a lease of a coal liarly skilled mine, one objection to the award was that the arbitrators examined no witnesses. Lord Chancellor Cranworth said, "I do not agree in the suggestion that it was incumbent on the arbitrators to examine witnesses. I do not think that is the meaning, when a matter is referred to surveyors and people of skill to settle what the value of the property to be bought or let is. Necessarily, they are entrusted from their experience and their observation to form a judgment which the parties referring to them agree shall be satisfactory; therefore I do not think there was anything of importance in their not examining witnesses, provided, bonâ fide, they meant to say, 'We know sufficient of the subject to decide properly without examining witnesses”” (m). PART II. CH. IV. S. 1. An arbitrator experienced in cloth was held justified in Deciding on deciding upon inspection of samples only (n). samples. Usage to award on value of A usage for arbitrators appointed to determine, as between outgoing and incoming tenants of a farm, the value of the away-going crop, and the deductions for want of repair of repairs, on inspection the farm-buildings and fences, to make their award on an without inspection of the crops and premises, without notice to the evidence. parties and without evidence, may be good, but no usage can justify the arbitrator in hearing one party and his witnesses only in the absence of, and without notice to, the other party (0). arbitrator's According to Turner, L.J., the award of a government Statutory board, such as the railway commissioners, made arbitrators by absolute statute, cannot be set aside by the courts for hearing witnesses discretion. behind the backs of the parties, on the ground that they have an absolute discretion, and are only responsible to parliament for its exercise (p). with arbi On a reference of a claim for builder's work done to a Discretionary house, it is within the discretion of the arbitrator to deter- trator to view mine whether he will comply with the request of one of the premises. parties that he should view the premises (7). (m) Eads v. Williams, 24 L. J. Ch. 531; Caledonian Rail. Co. v. Lockhart, 3 Macq. 808; Bottomley v. Amber, 38 L. T. N. S. 545. See P. II. ch. 4, s. 2, d. 2. (n) Wright v. Howson, 4 Times L. R. 386. (0) Oswald v. Lord Grey, 24 L. J. Q. B. 69. (p) The Newry and Enniskillen Rail. Co. v. The Ulster Rail. Co., 2 Jur. N. S. 936, S. C. 8 De G. M. & G. 487. (9) Munday v. Black, 9 C. B. N. S. 557, S. C. 30 L. J. C. P. 193. PART II. CH. IV. S. 1. Rejecting evidence of want of assets. Misleading party by award before case closed. Closing case too hastily. Party asking to be heard. Party asking for time. On a general reference by an executor respecting differences between his testator and a third person, an arbitrator is not justified in rejecting evidence offered by the executor to show that he has no assets to meet the demand upon his testator's estate (r). The arbitrator should be careful not to mislead the parties into a supposition that the case is still open, and then unexpectedly to make his award. For, if the arbitrator, after promising to hear some witnesses, make his award without calling them, or giving notice that he shall not examine. them (s); or if, after declaring that he can take no further proceedings in the reference till some books of account have been looked into and examined, he make his award without giving notice to the parties that he has found the inspection of the books unnecessary (t), the award will be set aside. If, though there has been some needless delay, an arbitrator do not give the party who has caused it proper opportunity to go into his case, but make his award too hastily, without giving the party due notice of his intention to do so, the court will set the award aside (u). Where a party desired the arbitrator to defer making his award until he should satisfy him as to some things which the arbitrator took to be against him; as this was within two or three days before the time for making the award was out, the arbitrator refused his request, and made his award; yet, as it seemed there was a just ground for the plaintiff's desire to be heard, though it did not appear that the plaintiff was ready to be heard, within the time, the court set aside the award (r). So, while the matters were still open, and the one party asked to be heard and the umpire refused and made his award, it was set aside (y). If a party be surprised by an unexpected case set up by his opponent, and ask for time to inquire into the matter, it (r) Riddell v. Sutton, 5 Bing. 200. (8) Earle v. Stocker, 2 Vern. 251. (t) Pepper v. Gorham, 4 Moore, 148. (u) Doddington v. Hudson, 1 Bing. 384; Bedington v. Southall, 4 Price, 232; Gladwin v. Chilcote, 9 Dowl. 550; Haigh v. Haigh, 31 (x) Spettigue v. Carpenter, 2 P. W. 361. (y) Maunder, In re, 49 L. T. 535. |