PART II. CH. XI. S. 1. Practice not to deliver award until fees paid. Costs of solicitor. had received the amount. In refusing the rule, Taunton, J., expressed his disapprobation of the opinion above cited of Eyre, C. J. (g). There does not seem to be any recorded instance of an attachment being granted to enforce an arbitrator's claim. And the courts have refused to grant a rule calling upon a party to pay the sum which the arbitrators had awarded as due in respect of their costs, and directed to be paid by the parties to a stranger, Jervis, C. J., saying that the arbitrators cannot have judgment for their costs (h). It is usual, therefore, for an arbitrator to settle for himself what he considers a proper remuneration for his trouble. He ought not in general, as we have before observed, to state the sum in the award (i); but on giving notice to the parties that the award is ready for delivery, it is advisable to notify also to them the amount of his charges, in order that the party who comes to take up the award may be prepared to pay them. The arbitrator has a lien for his reasonable costs on the award and submission, and on any memoranda or valuation obtained by himself from other persons for his own guidance, but not on documents put in evidence before him by the parties (). As the retention of the award is the only security on which practically he can rely for the satisfaction of his claim, the practice commonly prevails not to deliver the award up to the party demanding it, until he have paid the arbitrator's charges. This mode of securing payment has been sanctioned by judicial approbation, even where the party who takes up the award is not by the terms of its provisions to be the party ultimately liable to them; since the party paying in the first instance may redress himself by attachment, and recover from his opponent all the costs of the award that its directions impose upon the latter (1). It is reasonable in many cases for a lay arbitrator to employ a solicitor or counsel to draw up the award, and to charge (g) Burroughes v. Clarke, 1 Dowl. 48. (h) Laing v. Todd, 13 C. B. 276. (i) See P. II. ch. 7, s. 1, d. 3, p. 385, as to awarding costs of award. () In re Coombs, 4 Ex. 839; Ponsford v. Swaine, J. & Han. 433. (1) Hicks v. Richardson, 1 B. & P. 93; Stokes v. Lewis, 2 Smith, 12; Smith v. Troup, 7 C. B. 757. the expenses as costs of the award (m). But the court will not allow such expenses where the charges for his own fees are very high (n). PART II. CH. XI. S. 1. and referee 1889. It must here be noticed that, by the Arbitration Act, 1889, Arbitrator s. 15, in all cases of reference under an order of the court or under Arbia judge in any cause or matter, the official or special referee tration Act, or arbitrator shall be deemed to be an officer of the court, and "the remuneration to be paid to any special referee or arbitrator to whom the matter is referred under order of the court or a judge shall be determined by the court or a judge." Lands Clauses Act. An arbitrator or umpire appointed under the Lands Clauses Fees on award Consolidation Act, 1845, is not bound to deliver up the under the award to the promoters, until his reasonable charges are Consolidation paid, and cannot be compelled to do so by mandamus, for he has a lien on the award for the amount (o). Though the point has not been decided, it is apprehended that his lien is the same in cases where the claimant is, under section 34 of the act, liable to half the costs. SECTION II. OF THE LIABILITY OF THE ARBITRATOR AT LAW. PART II. CH. XI. S. 2. 1. Liability in respect of fees.]--The courts, till of late years, seem to have assumed that the amount charged for fees by the arbitrator might be summarily reviewed by them as Arbitrator attempting against the arbitrator. As between party and party it is to extort clear that the arbitrator's charges will be taxed on application excessive fee. to the court, and, if excessive, reduced (p); but it seems to have been taken for granted that the arbitrator could be compelled to deliver up the award on payment of the reduced (m) Threlfall v. Fanshawe, 19 L. J. Q. B. 334. (n) Galloway v. Keyworth, 15 C. B. 229. (0) The Queen v. The South Devon Rail. Co., 15 Q. B. 1043. (p) Brazier v. Bryant, 2 Dowl. 600; Westwood, &c. v. Cape of Good Hope, 2 Times L. R. 667. See ante, P. II. ch. 7, s. 1, dd. 1, 3, pp. 375, 385. PART II. CH. XI. S. 2. Whether liable in action for withholding award. Not liable to attachment. No attachment against arbitrator refusing to amount. In one case, where the arbitrator's claim was alleged to be exorbitant, it was held that the award was not to be considered published until the arbitrator's charges had been taxed by the officer of the court, on the ground that it could not be considered to be ready, when it was only to be had on submitting to a wrongful demand (9). This ruling assumes that after taxation the arbitrator could be forced to deliver the award up on tender of the sum found reasonable by the master. It is true that the decision as to the time of publication has been overruled, but not on the ground of any mistake in the power of the court over an arbitrator (r). How far the arbitrator is liable to an action for wrongfully withholding the award, if he refuse to deliver it up except on payment of an extortionate fee, does not seem to have been decided in any case; but it is now clear that the courts have no power to issue an attachment against him on the ground of such refusal (s); unless, perhaps, where he is now deemed to be an officer of the court under the Arbitration Act, 1889 (†), s. 15. On one occasion, indeed, the court granted a rule nisi, calling on an arbitrator to refund the difference between the sum he obtained from the party before he delivered up the refund excess. award, and the amount of fees allowed to be proper on taxation; and though they refused to make the rule absolute, it was not on any ground of want of jurisdiction, but on the ground of the lapse of time, and the death of the attorney who could have explained the circumstances (u). Court no jurisdiction over arbitrator. But it has been determined in later cases, that there is no summary jurisdiction in the courts over an arbitrator. And where an arbitrator refused to deliver the award up, except on the payment of an exorbitant fee, and thus compelled the party to pay it, as he did under protest, the court, on the ground of want of jurisdiction over the arbitrator, refused an application for an attachment to force him to refund the amount found on taxation to be an excess (x). (9) Musselbrook v. Dunkin, 9 Bing. 605. (r) Macarthur. Campbell, 5 B. & Ad. 518; Brooke v. Mitchell, 6 M. & W. 473; Moore v. Darley, 1 C. B. 445; Brazier v. Bryant, 2 Dowl. 660. (8) Dossett v. Gingell, 2 M. & G. 870, note 872. (t) 52 & 53 Vict. c. 49. (u) Brazier v. Bryant, 2 Dowl. 757, S. C. 3 M. & Sc. 844. (x) Dossett v. Gingell, 2 M. & G. 870. The court has no authority to compel the arbitrator to submit his charge to taxation by the master, but if he consent, will sometimes order that course to be adopted (y). If the arbitrator refuse to deliver up the award until an exorbitant charge be paid, the party paying it to get the award may recover the excess beyond what is a reasonable fee to the arbitrator, in an action against him for money had and received (z). In a case where the award was set aside for a gross mistake of the arbitrator, a suggestion was thrown out by Tindal, C.J., whether, as the consideration seemed to have failed for which the money expended in taking up the award was paid, the amount could be recovered from the arbitrator. He, however, expressly guarded himself against being supposed to give an opinion on the point (a). PART II. CH. XI. S. 2. Excess recoverable by action for money had and received. misconduct : 11. Liability for misconduct or in respect of the award.]-By the Removal by Arbitration Act, 1889, s. 11, "where an arbitrator or umpire Arbitration has misconducted himself, the court may remove him." It Act, 1889. should be observed that this power is given to the court alone and not to the court or a judge. It does not seem, therefore, to be one of the powers that has been transferred to the master in Ord. LIV. r. 12a, made in pursuance of section 21 of the act. or care. An action will not lie against an arbitrator for want of No action for skill, nor for negligence in making his award, nor for the like want of skill cause against an architect broker or average adjuster employed to determine matters as a quasi arbitrator (b). Ordinarily an arbitrator is no party to the agreement of Arbitrator not a party to reference, and therefore is not bound to award at all. But submission. where he is a party to the agreement, and so engages to determine the matter, he may be liable to an action if he refuses to act (c). An action, it is said, may be maintained against an Whether arbitrator for making a corrupt or partial award (d). (y) In re Coombs, 4 Ex. 839. (z) Fernley v. Branson, 20 L. J. Q. B. 178; Barnes v. Hayward, 1 H. & N. 742; Barnes v. Braithwaite, 2 H. & N. 569; Dossett v. Gingell, 2 M. & G. 870, note 872. (a) Hall v. Hinds, In re, 2 M. & G. 847. See In re Coombs, 4 Ex. 839. (b) Turner v. Goulden, L. R. 9 R. C. P. 57; Tharsis Sulphur Co. v. 525. (d) Wills v. Maccarmick, 2 Wils. 148; Pappa v. Rose, L. R. 7 C. P. 525; Stevenson v. Watson, 4 C. P. D. 148. K K arbitrator liable in action for corrupt award. PART II. CH. XI. S. 2. Mandamus to arbitrators to appoint umpire and to assess costs. Misconduct of arbitrator a misdemeanour under the On a motion to set aside an award in the time of Holt, C. J., the Court of Queen's Bench, though in opposition to that learned judge's opinion, who stated it to be contrary to all practice, ordered some arbitrators, who were accused of mismanagement and refusing to hear the defendant's case, to attend and be examined, saying that they deserved to be punished. The examination was made in court by affidavit as to all their proceedings, and it is stated great mismanagement appeared. It is not, however, reported whether anything was done to them in consequence (e). Under The Companies Clauses Consolidation Act, 1845 (ƒ), if two arbitrators neglect to appoint an umpire, they may, it is said, be compelled by mandamus to do so (g). So also a mandamus will lie to compel an arbitrator to assess costs on a reference under The Lands Clauses Consolidation Act, 1845 (h). If an arbitrator or umpire, after making and subscribing the declaration required by The Lands Clauses Consolidation Act, 1845 (), The Railways Clauses Consolidation Act, Lands and Railways 1845 (k), and The Metropolitan Sewers Act, 1848 (7), that Clauses Acts, he will faithfully and honestly, and to the best of his skill and ability, hear and determine the matters referred to him, "shall wilfully act contrary thereto, he shall be guilty of a misdemeanour." &c. Arbitrator directing to action. Although there be no misconduct, an arbitrator may, it trespass liable seems, sometimes render himself liable by the directions of his award. Thus, on the reference of an action by a landlord against a stranger for an injury to his reversion, the arbitrator, it is said, will be guilty of a trespass if, when the tenant is no party to the submission, he, without the latter's consent, order anything to be done to the demised premises, and the party ordered carry out the directions of the award (m). Liability for appointing a receiver. If the arbitrator appoint a person as receiver to receive (e) Morris v. Reynolds, 2 Ld. Raym. 857. (f) 8 & 9 Vict. c. 16. (g) Lord v. Copper Miners' Co., 1 Kay & John, 90, S. C. 24 L. J. Ch. 145. (h) 8 & 9 Vict. c. 18; The Queen v. Biram, 17 Q. B. 969. (i) 8 & 9 Vict. c. 18, s. 33. See the Appendix of Statutes. (k) 8 & 9 Vict. c. 20, s. 134. See the Appendix of Statutes. (7) 11 & 12 Vict. c. 112, s. 75. See the Appendix of Statutes. (m) Angus v. Redford, 11 M. & W. 69, S. C. 2 Dowl. N. S. 735, |