is proper for the arbitrator to comply with his request, and to give reasonable opportunity for investigating the matter (≈). PART II. CH. IV. S. 1. When the case is closed, it is in the discretion of the arbi- Refusing to trator whether he will re-open it and receive further evidence. re-open case. And where it was agreed that a certain meeting should be the last, and that all the evidence on both sides should be produced, and the defendant afterwards applied to the arbitrator for another hearing, alleging that he was in possession of fresh evidence to rebut the effect of certain accounts put in evidence by the plaintiff at the last meeting, and the arbitrator refused the hearing, and made his award without any more evidence, the court declined to interfere, saying that the arbitrator must use his own discretion whether he would grant another meeting or not (a). absent Where an arbitrator refused to wait for the return of an Refusing to alleged material witness, absent on a voyage to China, and wait for made his award, the court declined to interfere with the witness. exercise of his discretion (b). should take As a general practice, the arbitrator should carefully take Arbitrator notes in writing of everything material stated by the wit- notes of the nesses, in order that he may be enabled to do full justice evidence. between the parties, by going over the whole collectively and deliberately, by accurately comparing what a witness says at first with what he admits on cross-examination, and what one. witness states with what a second witness deposes to. Even when the case is so short that the arbitrator can safely trust to carrying all the evidence in his head, it is advisable that there should be written minutes of the evidence, in case any ulterior proceeding be taken on the award, and the arbitrator be required to give information respecting the proceedings before him (c). parties as Formerly nice questions were raised as to the extent of the Examining power of the arbitrator to examine the parties to the cause, witnesses. and the proper mode of such examination (d), but these have (2) Solomon v. Solomon, 28 L. J. Ex. 129. (a) Ringer v. Joyce, 1 Marsh, 404. See Hall v. Anderton, In re, 8 Dowl. 326; Larchin v. Ellis, 11 W.R.281; Hemming v. Parker, 14 W. R. 328. (b) Ginder v. Curtis, 14 C. B. N. S. 723. (c) Croom v. Gore, 1 H. & N. 14, S. C. 25 L. J. Ex. 267. (d) Lloyd v. Archbowle, 2 Taunt. 323; Smith v. Sparrow, 16 L. J. Q. B. 139; Scales v. East London Waterworks, 1 Hodges, 91; Wells v. Benskin, 9 M. & W. 45; Morgan v. Morgan, 1 Dowl. 611; Keene v. Deeble, 3 B. & C. 491; PART II. CH. IV. S. 1. Examining Railways, and Calling for documents. Arbitrator calling for accounts to decide what are matters in difference. Power under Railways, and lost their interest since the change in the law of evidence which allows parties generally to be examined as witnesses in their own behalf. By the special provisions of the Land Clauses Consolidation Act, 1845 (e), the Railways Clauses Consolidation Act, 1845 (f), and the Companies Clauses Consolidation Act, 1845 (g), the arbitrators or umpire, on references under those acts, have power to examine the parties on oath, and may administer the oath for that purpose. VII. Power of the arbitrator to call for documents.]—A provision is generally inserted in orders of reference that the parties shall produce before the arbitrator all books, papers, deeds, and writings, relating to the matters in difference between them, as the arbitrator shall require Compliance with the arbitrator's demand for production will be enforced by attachment (h). A submission usually contains, or is deemed to contain, a similar clause (i). If on a general reference the arbitrator call for certain books of account, it is no answer for the party who is ordered to produce them to say that they relate to accounts long since settled, and not now matters in dispute; for the arbitrator is for this purpose to determine what are the matters in dispute (). In references under the Lands Clauses Consolidation Act, 1845 (k), the Railways Clauses Consolidation Act, 1845 (1), the Railway Companies Arbitration Act, 1859 (m), and the Companies Clauses Consolidation Act, 1845 (n), the arbitrators, or the umpire, are empowered to call for the production of any documents in the possession or power of either party, which he or they may think necessary for determining the question in dispute. Warne v. Bryant, 3 B. & C. 590; (f) 8 & 9 Vict. c. 20, s. 133. (g) 8 & 9 Vict. c. 16, s. 132. See Appendix of Statutes. (h) Arbuckle v. Price, 4 Dowl. (i) 52 & 53 Vict. c. 49, Sched. I. (k) 8 & 9 Vict. c. 18, s. 32. See Appendix of Statutes. (7) 8 & 9 Vict. c. 20, s. 133. See Appendix of Statutes. (m) 22 & 23 Vict. c. 59. See Appendix of Statutes. (n) 8 & 9 Vict. c. 16, s. 132. See Appendix of Statutes. PART II. CH. IV. S. 1. should not re statement VIII. Duty of the arbitrator to receive no evidence unless both parties are present.]—An arbitrator can hardly be too scrupulous in guarding against the possibility of being charged with Arbitrator not dealing equally with both parties. Neither side can be ceive private allowed to use any means of influencing his mind which are from a party. not known to, and capable of being met and resisted by, the other. As much as possible the arbitrator should decline to receive private communications from either litigant respecting the subject-matter of the reference. It is a prudent course to make a rule of handing over to the opponent all written statements sent to him by a party, and to take care that no kind of communication concerning the points under discussion be made to him, without giving information of it to the other side (o). examine Except in the few cases where exceptions are unavoidable, Should as where the arbitrator is justified in proceeding ex parte, witness in both sides must be heard, and each in the presence of the presence of both parties. other. However immaterial the arbitrator may deem a point to be, he should be very careful not to examine a party or a witness upon it, except in the presence of the opponent. If Irregular he err in this respect he exposes himself to the gravest avoids award. censure, and the smallest irregularity is often fatal to the award (p). Where some witnesses attended before the arbitrator to give evidence on behalf of the defendant, and he, notwithstanding the parties, pursuant to his recommendation, had agreed to produce no more evidence, received the testimony of these witnesses, the parties and solicitors on both sides being absent, Lord Eldon, C., set aside the award, on the ground that the evidence had been improperly admitted, although the arbitrator swore that the evidence thus received had had no effect on his award (q); the learned judge being of opinion that no court should permit an arbitrator to decide so delicate a matter as whether a witness examined in the absence of one of the parties had an influence on him or not (»). (0) Harvey v. Shelton, 7 Beav. 455, S. C. 13 L. J. Ch. 466. (p) Harvey v. Shelton, 7 Beav. 455, S. C. 13 L. J. Ch. 466; Hick, In re, 8 Taunt. 694; Drew v. Leburn, 2 Macq. 1; Tidswell, In re, 33 Beav. 213. 70. 67. (2) Walker v. Frobisher, 6 Ves. (r) Fetherstone v. Cooper, 9 Ves. examination PART II. CH. IV. S. 1. Held in C. P. only when party in fault. Held in Q. B., not in fault. But this rule has not always been strictly adhered to, for in two instances it has been held by the Court of Common Pleas, that if the arbitrator re-examined a witness after the case on both sides was closed, and the plaintiff's attorney gone away, that circumstance would not induce the court to set aside the award, although the arbitrator admitted his judgment had been influenced by the answer, unless it appeared that the second examination of the witness was brought about by the management of the opposite party (8). In a more recent case, however, the Court of Queen's Bench though party stated that the two cases in the Common Pleas were not satisfactory to them, and that they would rather abide by the broad principle laid down by Lord Eldon in Walker v. Frobisher (t), and reiterated in Fetherstone v. Cooper (u). In that case, one party had brought an action for obstructing the waterway in front of their houses, which faced on to the River Thames. The obstruction complained of consisted of a floating pier composed of barges. The other party indicted the former for a nuisance, alleging that an embankment in front of the house was an encroachment on the river. Both the action and indictment were, by different orders of reference, referred to the same arbitrator, with power to order the removal of obstructions, and to regulate the waterway. After the arbitrator had heard the case, and stated that he wanted nothing further from either party, he sent for the deputy water-bailiff, who had been examined as a witness, and questioned him as to the means of giving convenient access to the shore, supposing the embankment removed. No notice of this meeting was given to either side, but a special pleader was present at it, who had acted as an advocate for one of the parties in a former stage of the reference. One of the other party coming accidentally into the room, asked permission to remain also, but this the arbitrator refused, saying that he had the special pleader there to give him some information, by which, however, his opinion would not be biassed. The court said that, though there was no imputation on the motives of the arbitrator, the irregularity of his conduct was fatal to the validity of the award; that they could draw no line, but must abide by the general principle, that where by possibility the arbitrator's mind may have been biassed, the objection is fatal; and that they must oppose all attempts to explain, by the bearing of particular parcels of the evidence, whether the inquiry had, or by any probability might have had, an effect on the decision; and as there was only one subject-matter, they set aside the award, both upon the indictment, as well as upon the action (x). On a later occasion, when the cases in the Common Pleas above referred to (y) were relied on in the Queen's Bench, Lord Denman, C. J., again intimated that that court did not accede to their authority, and that they had in preference adopted the rule laid down by Lord Eldon at the commencement of his career (≈). PART II. CH. IV. S. 1. At the present day, if no personal misconduct, or evil inten- Referring tion, or gross disregard of proper rules, be imputable to the back award for irregular arbitrator, the courts will often refer back the award to him examination notwithstanding he may have been guilty of some irregularities in the examination of the witnesses (a). of witnesses. witness when Though both the parties are absent, and are thus in a Examining measure on an equality, the course of examining a witness both parties in private cannot, under ordinary circumstances, be jus- absent. tified (b). The Court of Chancery, also, has exhibited its adherence to Examining one party in the rule laid down by Lord Eldon (c). For where the arbiprivate bad trator summoned one of the parties before him to explain an on public grounds. apparent error in the accounts, without giving any notice of the meeting to the other side, even though the meeting took place in the presence of an accountant employed by both sides, the Master of the Rolls held that this was such a deviation from the course of justice, that the award could not be supported, although it did not appear that the party excluded had in fact been injured; and that the absent party was not precluded from objecting to this irregularity, by reason of |