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they are intrusted, from their experience and observation, to form a judgment which the parties referring to them agree shall be considered satisfactory." (Eads v. Williams, 4 De G., M. & G. 687, per Lord Cranworth.) There might be a reference between an incoming and outgoing tenant where an inspection of the farm would afford every information necessary. In such a case it might be, if the usage were so, that the referees need not give notice of their meetings to the parties or have their attendance, but might make their award on a view of the farm. (Oswald v. Grey, 24 L. J., Q. B. 69, per Erle, J.) But in any case, unless the parties have expressly agreed that the arbitrator need not take evidence, either party may claim, at any time before the award is made, to be heard and to adduce evidence. (Re Maunder, 49 L.T. 535.) When evidence is received, the arbitrator must observe the principles of universal justice recognized in the conduct of judicial proceedings, which require that a person who may be prejudiced by evidence ought to be present sence of both to hear it taken, to suggest cross-examination, or him- parties.

self to cross-examine, and to be able to find evidence, if

he can, that shall meet and answer it.

(Drew v. Drew,
246; 16 C. B.,

2 Macq. 1; Re Brook, 33 L. J., C. P.
N. S. 403; Thorburn v. Barnes, 36 L. J., C. P. 184;
L. R., 2 C. P. 384.) An award will not stand-

1. Where the arbitrator hears one party and refuses to hear the other. (Sharpe v. Bickerdyke, 3 Dow, H. L. 102; Oswald v. Grey, 24 L. J., Q. B. 69; Phipps v. Ingram, 3 Dow. 669.)

2. Where the arbitrator holds private communications with one of the parties on the subject-matter of the reference. (Fetherstone v. Cooper, 9 Ves. 69; Harvey v. Shelton, 13 L. J., Ch. 466; 7 Beav. 462; Re Tidswell, 33 Beav. 213.)

3. Where the arbitrator, unless justifiably proceeding ex parte, examines one of the parties (Re Hick, 8 Taunt.

Arbitrator both sides and

must hear

take evidence in the pre


Private communications.


694), or the witnesses on one side (Pepper v. Gorham, 4 Moore, 148; Walker v. Frobisher, 6 Ves. 70; Re Brook, supra), in the absence of the other party; or receives information from the one party in the absence of the other. (Re Gregson and Armstrong, 70 L. T. 106.)

4. Where the arbitrator examines witnesses in the absence of both parties. (Re Plews and Middleton, 14 L. J., Q. B., 139; 6 Q. B. 845; Kingwell v. Elliott, 7 Dow. 423.)

The award will be set aside, notwithstanding the arbitrator may swear that the evidence thus received had no effect upon his award (Walker v. Frobisher, 6 Ves. 70; Dobson v. Groves, 6 Q. B. 637; 14 L. J., Q. B. 17; Fetherstone v. Cooper, 9 Ves. 67), unless the objection be waived.

The same rules apply, and the same course of proceedings ought to take place, in a mercantile as in any other reference. (Harvey v. Shelton, supra.)

Where a letter book, containing copies of letters which had been adduced in evidence before an arbitrator, and marked by him as read, was, at the close of the case, left in his hands in order that he might, before making his award, refer to the copies so adduced, and he referred to a copy of a letter which had not been so marked, the court directed that the case should be referred back to the arbitrator in order that the party against whom the letter complained of had been used might have an opportunity of explaining its contents, but refused to set aside the award. (Davenport v. Vickery, 9 W. R. 701.)

If one party make any private written communication to the arbitrator touching the subject-matter of reference, the arbitrator should inform the other party, or hand the communication over to him. (Harvey v. Shelton, 7 Beav.

462; 13 L. J., Ch. 466.)

In Anderson v. Wallace (3 C. & F. 26), it was decided whether party that an award was not invalidated by the arbitrator, in disputes items,

the absence of one of the parties, calling on the other party and asking him whether he admitted or disputed certain items in an account, and merely taking his answer to that question. But had he received any explanations of items in the absence of the other party it would have been different. (Re Haigh's Estate, 3 De

G., F. & J. 157.)

The only safe course for an arbitrator, unless proceeding ex parte, is to insist that all information in relation to the matter in reference, communicated by one party, or his witnesses or agents, shall be in the presence of the other. (Drew v. Drew, 2 Macq. 1.)


No information should be

received be

hind the back of a party.

The parties may consent to the arbitrator informing Irregular his mind by taking evidence in the absence of the parties sanctioned by proceedings (Matson v. Trower, Ry. & M. 17; Re Plews and Middle- agreement. ton, 14 L. J., Q. B. 139, per Coleridge, J.); but such a course could not be justified by any alleged usage. No usage would be legal, for arbitrators to make their award upon the examination of the witnesses of the one party in the absence of the other, and without notice to the latter. (Re Brook, 16 C. B., N. S. 403; 33 L. J., C. P. 246; Oswald v. Grey, 24 L. J., Q. B. 69.)

Any objection to irregular or improper conduct on the Or waived by part of the arbitrator may be waived by the parties, either the parties. expressly or by their conduct (Re Salkeld and Slater, 12

A. & E. 767; Bignall v. Gale, 10 L. J., C. P. 169; 2 M. & G. 830), providing the party waiving have full knowledge of the defect. (Earl of Darnley v. London, Chatham and Dover Rail. Co., L. R., 2 H. L. 43; 36 L. J., Ch. 404.) When it comes to the knowledge of a party, that the arbitrator has examined witnesses in his absence, he should at once either abandon the reference or apply in chambers to revoke the submission, for if he continue to attend the subsequent proceedings this will. be a waiver. (Drew v. Drew, 2 Macq. 1; but see Re Haigh's Estate, 31 L. J., Ch. 420.) Where, pending a


Receiving evidence of matters not within the submission.

Giving time

for the production of evidence.

reference, the umpire held a communication with the agents of one of the parties, this fact being known to all the parties at the time, and not objected to by any of them, and the reference having proceeded and the award being subsequently made, it was held that neither of the parties could object to the award on the ground of such communication, having acquiesced in it. (Mills v. Bowyer's Society, 3 K. & J. 66; Hamilton v. Bankin, 19 L. J., Ch. 307.)

An arbitrator may receive evidence upon matters denied by one of the parties to be in difference, and, provided his award does not exceed his authority, it will not be thereby invalidated (Arbuckle v. Price, 4 Dow. 174; Falkingham v. Victorian Railway Commissioners [1900] A. C. 452); and he may inquire into collateral matters necessary to decide the matters submitted. (Eastern Counties Rail. Co. v. Robertson, 1 D. & L. 498.)

If a party to a reference objects that the arbitrator is entering on the consideration of a matter not referred to him, and protests against it, and the arbitrator nevertheless goes into the question and receives evidence on it, and the party, still under protest, continues to attend before the arbitrator and cross-examines the witnesses on the point objected to, he does not thereby waive his objection, nor is he estopped from saying that the arbitrator has exceeded his authority by awarding on the matter. (Davies v. Price, 34 L. J., Q. B. 8; ante, p. 115.)

The arbitrator before closing the hearing should receive all the evidence on both sides. (Bedington v. Southall, 4 Price, 232; Doddington v. Hudson, 1 Bing. 384; Phipps v. Ingram, 3 Dow. 669.) An arbitrator has no authority to say he has fully heard the case on both sides as against the desire of one of the parties to adduce further evidence. (Re Maunder, 49 L. T. 535.) When the parties require further time for the production of evidence it is generally in the power of the arbitrator to decide whether the party

so applying has made out such a case as ought to induce him to put off the further hearing or postpone his award (Ringer v. Joyce, 1 Marsh. 404; Ginder v. Curtis, 14 C. B., N. S. 723); although the courts do not regard this as a fixed rule applicable to every case (Spettigue v. Carpenter, 3 P. W. 361); and the arbitrator ought generally to comply with the request, if it is made on reasonable grounds. (Solomon v. Solomon, 28 L. J., Ex. 129.) It is in the discretion of the arbitrator whether he will give time for one of the parties to bring a material witness from abroad. (Ginder v. Curtis, supra.) And when an application was made to arbitrators to afford time to obtain and examine a witness who was absent, and they honestly (though erroneously) exercised their discretion. as to the materiality of his evidence, and refused time, the court would not set aside the award. (Larchin v. Ellis, 11 W. R. 281.)


be taken.

Notes of the evidence should be taken by the arbi- Notes should trator, even though the case is short. (Croom v. Gore, 25 L. J., Ex. 267; 1 H. & N. 14.)

power to con


It is said that an arbitrator may consult men of Arbitrator's science in every department where it becomes necessary sult persons (Caledonian Rail. Co. v. Lockhart, 3 Macq. 808, per of skill and Lord Wensleydale); and though he cannot agree beforehand to be bound by whatever opinion another man may give, for that would be a delegation of his authority, he may submit a question to another person of skill or science and adopt the opinion given thereon as his own (Emery v. Wase, 5 Ves. 846; 8 Ves. 504; ante, p. 124), but only if he forms his own judgment upon it and believes it to be correct. (Eads v. Williams, 24 L. J., Ch. 581; 4 De G. M. & G. 674.) 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 is no objection to their award that they have availed themselves of the assistance of such a

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