PART II.

CH. XI. S. 3.

proved, condemned in costs.

Award set aside on

motion, pro

ceedings irregular.

No moral mis

conduct.

Serving notice

of motion on arbitrator.

guilty of the corruption or collusion charged, we have previously seen that the penalty attaching to him in equity is, that he may be condemned to pay them (»).

By an order made in a suit in Chancery, certain matters were referred, and an award was made. The award was set aside on motion, on the ground that the arbitrator had improperly excluded from the meeting the son of one of the parties and a shorthand writer on his behalf. No imputation was thrown on the moral conduct of the arbitrator. The lords justices ordered the costs of the arbitrator to be paid by the party making the motion, who had brought the arbitrator before the court (s).

Arbitrators whose awards are sought to be set aside on motion for alleged irregularity on their parts are not necessarily parties, and, it seems, should not be served with notice of motion, and if so served and appearing may probably be entitled to ask for costs, unless they are shown to have been guilty of improper conduct (t).

PART II.

CH. XI. S. 4. Arbitrator as

witness.

SECTION IV.

OF TESTIMONY BY THE ARBITRATOR.

1. The arbitrator called as a witness.]-Though the arbitrator's whole power over the parties ends with the award, yet, as his testimony respecting matters connected with the reference is often requisite, it is advisable for him carefully to preserve the notes which he has made of the evidence taken before him. Though the notes are his own, and the court has no power to compel them to be produced, or make any order respecting them any more than with respect to a judge's minutes (u), yet he may require them to assist his

(r) Lingood v. Croucher, 2 Atk. 395; Chicot v. Lequesne, 2 Ves. Sr. 315; Ward v. Periam, cited in Chicot v. Lequesne, 2 Ves. Sr. 315; Lord Lonsdale v. Littledale, 2 Ves. Jr. 451.

(8) Haigh v. Haigh, 31 L. J. Ch. 420, S. C. 3 De G. F. & J. 157.

(t) Moseley v. Simpson, L. R. 16 Eq. 226.

(u) Scougull v. Campbell, 1 Chitt. 283.

memory in giving an account of what took place before him.

PART II.

CH. XI. S. 4.

arbitrator

award.

An arbitrator may often be called as a witness to give Whether evidence in the courts both of law and equity respecting need state proceedings in the arbitration. There does not seem any grounds of privilege attaching to him in his judicial character, whether he be a legal or lay person, entitling him to refuse his testimony, though it was held by Mansfield, C.J., that he might decline to state the grounds on which he made his award.

For where, in an action on an award, the defendant called the arbitrator to prove the ground on which he made his award, in order to show that he had exceeded the limits of the submission, Mansfield, C.J., told the witness that he need not be examined, unless he chose, thinking that an arbitrator was not, after making his award, to be worried as a witness. The arbitrator in consequence declined to be examined. On a motion for a new trial, and cause shown, no objection was made to this decision (x).

arbitrator

sidered.

In a more recent case, where the award made no allowance Inquiry of to the plaintiff in respect of a certain guarantee, and the whether plaintiff filed a bill in the Court of Chancery in Ireland, matter concomplaining that in taking the account the guarantee had been excluded; the court said that the plaintiff might have examined each of the arbitrators, and asked them whether they had abstained from weighing the effect of the guarantee, thinking it beyond their jurisdiction, or for any other cause, or whether they had taken it into their consideration together with the other matters in difference in coming to their conclusion on the whole case. And Lord Chancellor Hart added, had the case originally come before him he should have directed a short inquiry to examine the arbitrators on that single point (y).

Inquiry may matter beyond

be whether

It was decided in the House of Lords, after much discussion in the courts below, that an arbitrator called as a witness, in an action on an award, might (per Lord Cairns) be examined jurisdiction as to every matter of fact, with reference to the making of the award, what claims were made and what admitted, so as

(x) Ellis v. Saltau, 4 C. & P. 327, note; Johnson v. Durant, 4 C. & P. 327. See Anon. 3 Atk.

644.

(y) Brophy v. Holmes, 2 Molloy, 1.

considered not

as to grounds

of compensation.

PART II.

CH. XI. S. 4.

Fuller inquiry

set aside.

to put the court in possession of the history of the litigation up to the time of his proceeding to make the award, and (per Lord Chelmsford, Chancellor), whether in his estimate of the compensation he took into consideration any matters not included in the reference, and therefore not within his jurisdiction.

And it was laid down plainly that the defendants had no right to go farther and question the arbitrator as to the elements which he took into his consideration in determining the quantum of compensation, or to scrutinise the exercise by the arbitrator of his discretionary power to award compensation. In advising the House of Lords in accordance with the on motion to rule above stated, Cleasby, B., noted a distinction apparently approved by Lord Cairns, that this limitation of examining an arbitrator was confined to actions at law, where the rules of evidence must be attended to, but that where a summary application was made to set aside or refer back an award on the ground of mistake or misconception of the arbitrator, a written statement by the arbitrator of the reasons by which he was actuated might often be receivable (≈).

Valuer.

Award not

taken up.

It is to be noticed that a valuer who is not an arbitrator may be examined as to the basis of his valuation, on interrogatories, in an action against himself, for want of reasonable care and skill (a).

Where the award has not been taken up, the arbitrators will be protected from producing the submission and from disclosing the contents or the grounds of the award, or the discussions which took place between themselves, but they ought to answer whether either party had requested them to discuss certain accounts, and must produce the documents put in evidence before them which are in their hands (b).

And Hannen, J., has said that an arbitrator might be asked whether he had been requested by either party to find on specific issues, he being authorised to award generally, unless so requested (c).

Giffard, V.-C., held that an arbitrator might be examined

(z) Buccleuch, Duke, v. Metropolitan Board of Works, L. R. 5 App. Cas. 418; same case below, L. R. 3 Ex. 306; L. R. 5 Ex. 221.

(a) Turner v. Goulden, L. R. 9

C. P. 57.

(b) Ponsford v. Swaine, 1 J. & Hem. 433.

(c) Wilson v. Hinckley, 18 L. T. N. S. 695.

on a question of fraud, or to prove whether he has mistakenly awarded on a wrong subject-matter, or been guilty of a mistake in law going directly to the basis on which the award is founded (d).

PART II.

CH. XI. S. 4.

The arbitrator may be a witness to prove a submission by Arbitrator parol, to state facts relating to the conduct of a party, which proving proceedings in show his assent to be bound by the award (e), to prove what reference. matters were matters in difference in the reference (f), and whether a party claimed compensation for a particular injury (g).

In an old case, where the award was general and purported to decide all matters in difference, the court refused to receive evidence to contradict the award, or to allow the arbitrator to be called to prove that in respect of a claim made before him, and within the submission, he had refused to award a compensation (1).

admission of

He may be called upon to prove admissions made by the Proving parties in the course of the proceedings, other than mere parties. admissions made for the purpose of buying peace; for there is no ground why the statement of the parties before an arbitrator should be excluded, as they are not made in confidence or with a view to a compromise, and the matter comes as adversely before him as before any other tribunal (i).

sions made

able.

Lord Kenyon, at one time, made it a rule never to receive What admisevidence of any admissions of the parties whatever which before arbiwere made on a reference that was not effective; but he sub- trator receivsequently stated that he felt he had carried the rule too far, and that he should receive evidence of all admissions before an arbitrator which the defendant would be obliged to make in equity, and reject none but such as were mere concessions with a view to a compromise (k).

In a subsequent case, the same learned judge rejected the evidence of an arbitrator under the following circumstances:

(d) Rhys v. Dare Valley Rail. Co., 37 L. J. Ch. 719, S. C. L. R. 6 Eq. 429.

(e) Adams v. Bankhart, 1 C. M. & R. 681.

(f) Ravee v. Farmer, 4 T. R. 146; Golightly v. Jellicoe, cited in note, 4 T. R. 146; Trimingham v. Trimingham, 4 N. & M. 786.

(g) Martin v. Thornton, 4 Esp.

180.

(h) Shelling v. Farmer, 1 Stra.

646.

(1) Slack v. Buchanan, 1 Peake, N. P. C. 7; Doe d. Lloyd v. Evans, 3 C. & P. 219; Westlake v. Collard, Bull, N. P. 236b, 7th ed.; Gregory v. Howard, 3 Esp. 113.

(k) Slack v. Buchanan, 1 Peake, N. P. C. 7.

PART II.

CH. XI. S. 4.

Referee

An action, brought by a master against his servant for money had and received, coming on to be tried, the servant offered to suffer a verdict against himself, provided his master would produce his books before an arbitrator, and it did not appear by the master's cheques and entries that the servant had fully accounted. A verdict was accordingly taken by consent, and the cause referred, with power to the arbitrator to examine the parties upon oath, and to compel a production of the books. The arbitrator having examined the books, and the parties on oath, awarded in favour of the servant, who subsequently brought an action against his master for maliciously holding him to bail in the former cause. On the trial, the plaintiff's counsel called for the books, and proposed to examine the arbitrator to prove his case, but Lord Kenyon rejected the evidence, saying, "It seems to me the arbitrator ought not to be permitted to depose here as to what transpired before him, either upon the examination of the parties themselves or on an inspection of the books, upon the principle that the parties themselves could not have been examined in the former cause, nor could the plaintiff have been compelled by a judge at Nisi Prius to produce his books, and it would be a dangerous thing if such evidence were admitted to prove the arrest in that cause to be malicious, as the arbitrator might have proceeded to cut the knot rather than to unloose it, according to the strict rules of law, from a wish to do complete justice between the parties ” (1).

But where the plaintiff said to the clerk of the defendant's attorney that he would refer the question in dispute to him as an arbitrator, and on the clerk declining the office, added a statement admitting the defendant's set-off, the court held that the statement of the plaintiff was admissible against him and might be proved by the clerk, as it was no concession to buy peace, although the clerk added that the plaintiff desired him to communicate to the defendant what he had said, with a view of inducing the latter to agree to a compromise (m).

A referee to report may be examined as to the grounds of his report (n).

38.

(1) Habershon v. Troby, 3 Esp.

(m) Thomson v. Austen, 2 D. &

R. 358.

(n) Rust v. Victoria Graving Dock Co., 36 Ch. D. 777.