when a special provision was made in the submission, his power in that respect ceased to be a general one arising from the necessity of the case, and was to be governed by the terms of that provision (7). In the same case, under an authority to arbitrators to call in a competent person to assist them in the valuation of the stock and property of a partnership, it was held by the House of Lords to be no objection to the award that they availed themselves of the assistance of such person in deciding on the partnership accounts, for that the arbitrators by adopting in terms the opinions of such person did not constitute him an umpire, but made his opinions their own, and that their award could not be impeached on that account (m). If the parties agree during the reference, with the arbitrator's assent, that the award shall be made as to part upon a valuer's report, the award adopting the report is good (n). PART II. CH. IV. S. 2. in a valuer. It was the practice of the Masters of the Common Pleas, on Power to call a compulsory reference to them of a builder's bill, to send down a surveyor to report on the work. The court approved of the practice, stating, however, that the surveyor's report was only to be received as evidence, and that the masters must also hear the evidence of the parties (o). solicitor to If an arbitrator be appointed on account of his special Calling in qualifications, a legal arbitrator being objected to, he may sit with not, if either party object, call in a solicitor to sit with and arbitrator. advise him (p). If he is authorized to call in an accountant not objected to by either party, he must give the parties an opportunity of objecting (1). should not wrong. On a reference to surveyors to settle the terms of a lease of Arbitrator a mine (where it was not necessary to examine witnesses), it adopt opinion was held no objection to the award that one of the surveyors he believes did not go down into the mine, but founded his valuation on the report of a person whom he had sent down into it, and upon his own knowledge of the neighbourhood. To enable the surveyors to form a correct judgment, it was said by Lord PART II. CH. IV. S. 2. Taking opinion on Chancellor Cranworth to be very proper for them to consult a person of skill and competent experience in those matters, and take his estimate of the value (namely, 4007. an acre) as an item for determining their ultimate opinion. But as one of the surveyors stated that he did not think the mine worth 2007. an acre, but concurred in the award because he thought it was no use differing, the Lord Chancellor held the award bad, on the ground that the latter surveyor had not exercised a judicial discretion upon the case, as he had not adopted A.'s opinion, but had merely subscribed to what he thought wrong because another person thought it right (»). 11. Duty of the arbitrator in taking an opinion as to a matter matter of fact. of fact.]—An important question here arises, whether when arbitrators require the assistance of a valuer or person of skill, they are at liberty, without the knowledge of the parties, to apply privately to one on whom they can rely, and to adopt as their own and act on the opinion which he may give them as to the particular case (s). It is to be observed, that in Emery v. Wase (t), there was no irregularity in the mode of obtaining the valuer's assistance, for there were no regular proceedings, such as meetings and examination of witnesses, as in ordinary arbitrations, nor was any objection made on the ground that the arbitrator had taken the valuer's opinion respecting the timber without the knowledge of the parties. In Hopcraft v. Hickman (u), it appears that the agents of the parties knew of the builders being employed to value the mansion-house, and made no objection to it. And in Anderson v. Wallace (x), though the arbitrators conferred with a person of experience, after the case of both parties was closed and without their knowledge, they were held warranted in doing so by the express terms of the submission. But in a modern case (y), in the House of Lords, Lord Wensleydale, on an objection being taken that an arbitrator acted ultra vires in employing an agent to survey and report, (r) Eads v. Williams, 24 L. J. Ch. 531. See the previous section, d. 6. See also Whitmore v. Smith, 5 H. & N. 824, S. C. 29 L. J. Ex. 402; in error, 7 H. & N. 509, S. C. 31 L. J. Ex. 107. (8) See the previous section, d. 6. (t) 5 Ves. 846; 8 Ves. 504, a. See ante, p. 208. (u) 2 S. & S. 130. (y) Caledonian Rail. Co. v. Lockhart, 3 Macq. 808. speaking of the arbitrator's power, said, "He has power to call in a valuer to assist him, unless restricted by the terms of the submission. That was decided in the case of Anderson v. Wallace" (z). It is to be observed that in Hopcraft v. Hickman (a), the valuer's opinion is treated as evidence; and in Anderson v. Wallace (b), Lord Brougham stated that the proper and more regular course, and one which a professional arbitrator would have followed, would have been to have examined, as a witness, the person of whose experience, pursuant to the provision of the submission, the arbitrators were empowered to avail themselves. No case, however, has yet decided that in instances in which it is permitted to an arbitrator to ask the opinion of another on a matter of law or fact, the award is bad, because he has done so without the knowledge of the parties. PART II. CH. IV. S. 2. point of law. III. Duty of the arbitrator in taking an opinion on a point of Taking law.]-The above remarks apply only to the opinions of opinion on persons of skill and science respecting matters of fact; but it may often happen that an arbitrator may wish to consult a legal friend or adviser in deciding a question of law,—for instance, respecting the admissibility of evidence, or the construction of a contract or other document. He cannot in this case pursue the course suggested above, of calling his adviser as a witness, since evidence is not admissible on a point of law. may consult award. It was said by Lord Denman, C.J., on one occasion, that it Arbitrator is quite a legitimate course for an arbitrator to consult a counsel as to legal friend as to the mode of framing his award (c). Un- framing professional arbitrators, it is well known, often employ a solicitor to prepare it for them. The circumstance of the award being prepared even by the solicitor of the defendant in the cause referred, although indelicate, was held by Lord Eldon to be no ground for setting the award aside (d). The following cases seem to show that the propositions Arbitrator broadly stated in some of the cases recently cited, that an counsel's (z) 3 C. & F. 26. (c) Dobson v. Groves, 6 Q. B. 637. (d) Featherstone v. Cooper, 9 Ves. 67. taking PART II. arbitrator may take and adopt as his own the opinion of CH. IV. 8. 2. another, will authorise an arbitrator to take the advice of counsel or other professional adviser on points of law affecting not only the form but the substance of the award. opinion on a case. Where case stated incorrectly. One of three arbitrators had taken the opinion of counsel on a case which he had drawn up, stating the circumstances respecting which the arbitrators differed: A motion was made in the Court of Common Pleas to set the award aside on the ground that the arbitrator had taken the opinion of counsel upon an incorrect statement of facts against the consent of one of the parties to the reference, and had acted on that opinion; the court said, if the facts had been so the award would have been impeachable upon ground so clear and manifest, that it was sufficient barely to state the proposition. But as the affidavit of that arbitrator stated in answer that he had made up his own opinion on the point. in dispute before he took the opinion of counsel, and that such opinion was taken for no other purpose than to guide his determination whether to accede or not to the request of a fellow-arbitrator, that the facts relating to the disputed points should be set out on the award, having intended, in case such opinion differed from his own, to accede to that request, and to state the facts on the award, and that the case submitted by him to counsel contained a fair and true statement of the circumstances, the court held the objection satisfactorily removed (e). In another instance, where two out of three arbitrators stated a case, and took the opinion of counsel on it, the Master of the Rolls (Sir Thomas Plumer) held that fact not to amount to any evidence of corruption or improper practice, so as to render the award void; but, on the contrary, to show a conscientious desire to adjudicate fairly, although the opinion was taken without the knowledge of the third arbitrator, and although it was alleged that one important fact was erroneously stated; it appearing that there was no concealment, and that the case with the opinion was shown to the dissentient arbitrator before the award was made, that the statement alleged to be erroneous was correct according to the evidence before the arbitrators, and that the party had had ample (e) Hare, In re, 6 Bing. N. C. 158. opportunity of setting forth in evidence the true state of the facts (ƒ). PART II. CH. IV. S. 2. Where one of three arbitrators bonâ fide but privately How arbiobtained the opinion of counsel, which he showed to and trator should take legal discussed with the other arbitrators before the award was opinion. made, it was held that the award could not be impugned, especially as the arbitrators were "aimiables compositeurs" under the Canadian law. The Privy Council added, however, that it would be prudent and discreet for arbitrators, when they desire to put themselves upon the best possible footing of information as to matters of law, to ask all the parties to be present when they communicate with any gentleman they may see upon that subject (g). ministerial IV. Power of the arbitrator to delegate a ministerial act.]-A Arbitrator distinction has been taken between a judicial and a ministerial may delegate the performact, and it seems clear that an arbitrator may delegate to ance of a another the performance of acts of a ministerial character act. only (h). It is not always easy to ascertain what acts are included under the head of ministerial acts. The measurement of the number of acres in a field or the surface of a lake has been so considered (i). Probably the functions of an accountant who is employed merely to make up the accounts of a firm would be held to be ministerial only (k). The taxing the costs of the arbitration is a ministerial act, Taxing costs. and where the submission could be made a rule of court, it was usually left to the master to determine the amount. When the arbitrator had to settle the amount of the costs in arbitrations under the Lands Clauses Consolidation Acts, he was performing a ministerial function, but one which he could not delegate to the master till the Statute of 1869 was passed (7). (ƒ) Goodman v. Sayers, 2 J. & W. 249. (g) Rolland v. Cassidy, 13 App. Cas. 770. (h) Thorp v. Cole, 2 C. M. & R. 367, S. C. 4 Dowl. 437. (i) Ibid. (k) Harvey v. Shelton, 7 Bea. 455. See post. (7) Sharpe v. Metropolitan District Rail. Co., 4 Q. B. D. 645; in H. L. 5 App. Cas. 425. |