CHAP. XI.

Legal assistance.

person in deciding on the partnership accounts; the arbitrators by adopting in terms the opinions of such person do not constitute him an umpire, but make his opinions their own, and their award cannot be impeached on that account. (Anderson v. Wallace, 3 C. & F. 26.) And so, where matters in difference being referred to two arbitrators, the parties consented that they might in case of difficulty consult a third person, who was named, and the arbitrators did so on one out of the whole number of questions arising in the investigation, and they adopted the opinion which he gave them. upon it, without, as far as appeared, exercising any independent opinion, and made their award on the whole of the matters referred, it was held that the award was not thereby invalidated. (Whitmore v. Smith, 31 L. J., Ex. 107; 8 Jur., N. S. 514.) When, however, it is desired to obtain the assistance of a valuer, or scientific or skilled person, on a matter of fact, the regular and proper way to do so is to examine him as a witness. (Anderson v. Wallace, supra, per Lord Brougham; Hopcraft v. Hickman, 2 S. & S. 130.)

An action on a builder's account being referred to a master, it was held that he was entitled to appoint a surveyor to report as to value, but that he must receive the report in the same way as other evidence, and could not refuse to hear additional evidence tendered by the parties. (Gray v. Wilson, 35 L. J., C. P. 123; L. R., 1 C. P. 50.)

A lay arbitrator may consult counsel on the admissibility of evidence, or as to the framing of his award (Re Hare, 6 Bing. N. C. 158; Dobson v. Groves, 6 Q B. 637); or may take an opinion upon a point of law (Rolland v. Cassidy, 57 L. J., P. C. 99; 13 App. Cas. 770); or he may employ a professional man to draw up his award so as to make it good in point of form (Fetherstone v. Cooper, 9 Ves. 67; Baker v. Cotterill, 18 L. J., Q. B.

345; Galloway v. Keyworth, 23 L. J., C. P. 218), but it should not be the solicitor of either of the parties. (Re Underwood and Bedford and Cambridge Rail. Co., 11 C. B., N. S. 442; 31 L. J. C. P. 10.) A recital in an award that it had been drawn by a person who under the terms of the submission attended the arbitrator as his solicitor was held to show no improper delegation of authority. (Baker v. Cotterill, supra.)

As a general rule a lay arbitrator will be entitled to have a legal adviser to sit with him in the reference, for where the parties appoint a lay arbitrator, if the reference is to be brought to a safe conclusion, it is almost of necessity that he should have professional assistance in the conduct of it. (Threlfall v. Fanshawe, 19 L. J., Q. B. 334, per Coleridge, J.) But where one of the parties had expressly objected to a legal arbitrator, and a lay arbitrator was appointed, the arbitrator so appointed was held not to be entitled to have a solicitor to sit with him. (Proctor v. Williamson, 29 L. J., C. P. 157; 8 C. B., N. S. 386.)

CHAP. XI.

Lay arbitrator entitled to a

legal adviser.

When an arbitrator, in taking accounts, is authorized Employing under the reference to appoint an accountant, "not accountant. objected to by any of the parties," he may not appoint one without communicating with the parties. (Re Tidswell, 33 Beav. 213.)

An arbitrator having to settle costs may obtain professional help. (Rowcliffe v. Devon and Somerset Rail. Co., 21 W. R. 433.)

parte.

An arbitrator has power, subject to his discretion, to Power to proceed ex parte upon good cause, as, for instance, where proceed ex one of the parties keeps back his evidence to delay the reference (Hetley v. Hetley, Kyd on Awards, 100), or will not attend, the appointment being for a reasonable time, and the arbitrator is convinced that the object of non-attendance is to defeat the reference. (Wood v. Leake, 12 Ves. 412; Waller v. King, 9 Mod. 63.) Where

CHAP. XI.

Giving notice of ex parte proceedings.

one party has ineffectually attempted to revoke the sub mission, and refuses afterwards to attend the reference the arbitrator may proceed ex parte. (Harcourt v. Ramsbottom, 1 J. & W. 512.) And in Hobbs v. Ferrars (8 Dow. 779), it was held that the arbitrator might proceed ex parte, after notice, where one party became insolvent. But an arbitrator should not proceed ex parte if there is a reasonable excuse for a party's non-attendance. (Gladwin v. Chilcote, 9 Dow. 550; Proctor v. Williamson, 29 L. J., C. P., 157; 8 C. B., N. S. 386.)

When it is intended to proceed ex parte the arbitrator should generally give notice of such intention to the absenting party, either verbally or in writing. (Gladwin v. Chilcote, supra.) But where an arbitrator appoints a reasonable time for the hearing, a party who desires delay should appeal to the arbitrator, stating his reasons, and if they are well founded the delay will be granted. (Re Hewitt and Portsmouth Waterworks, 10 W. R. 780.) If he simply refuse to attend, the arbitrator may proceed ex parte. (Ib.) And where a party, having received notice of a meeting to proceed in the reference, did not attend, the arbitrator was held justified in proceeding ex parte at the next meeting without a peremptory appointment. (Angus v. Smythies, 2 F. & F. 381.) Even where an arbitrator had made an appointment for a meeting on the premises, for the purpose of a view “and to go into the reference," and one of the parties, although under the mistaken notion that there would be notice of another meeting before an award was made, went away without obtaining any other appointment, or intimating his desire to offer evidence, or to make any defence, the arbitrator was held entitled to proceed ex parte, and without further notice to make an award. (Tryer v. Shaw, 27 L. J., Ex. 320.) So where an arbitrator having, in the course of the reference, appointed a meeting for a certain day, was informed by the defendant that he did

not intend to be present, one of his reasons being that on account of the non-admissibility of certain depositions, which the arbitrator had not rejected as evidence, no award he could make would be valid, and another reason being that the notice (seventeen days) was too short; the arbitrator was held to have acted rightly in proceeding ex parte, though he had not warned the defendant that if he absented himself the arbitration would proceed. (Scott v. Van Sandau, 6 Q. B. 237.) Objections on the ground of want of notice will be waived by attendance at subsequent meetings. (Bignall v. Gale, 9 Dow. 631; 2 M. & G. 830.)

CHAP. XI.

parties should

The evidence being closed, the arbitrator should Case closed, inform both parties that he considers the case closed, be informed. and that he shall proceed to make his award. (Peterson v. Ayre, 23 L. J., C. P. 129.) Where arbitrators who had proceeded in a reference informed the defendant that they would suspend their proceedings till the books of account had been referred to, it was held that afterwards making an award in his absence, without examining the books of account, was ground for setting it aside. (Pepper v. Gorham, 4 Moore, 148.) So where arbitrators promised to hear certain witnesses and made their award without doing so (Earl v. Stocker, 2 Vern. 251); or refused to hear evidence tendered while the case was still open. (Re Maunder, 49 L. T. 535.)

the case.

When the case has been formally closed the arbi- Re-opening trator may, if he think fit, allow the production of further evidence (Bignall v. Gale, supra), or he may refuse to re-open the case. (Henning v. Parker, 14 W. R. 328.)

A.

M

CHAPTER XII.

THE AWARD.

Time within

must be made.

Meaning of "months."

SECT. 1.-Form and General Requisites of an Award.

CHAP. XII. THE evidence on both sides being fully heard and the case closed, the arbitrator proceeds to make his award. which award It must be made within the time limited for that purpose. If he has until a certain day, "until" will be construed as inclusive (Knox v. Simmonds, 3 Bro. C. C. 358; Kerr v. Jeston, 1 Dow., N. S. 538); and if he has a certain length of time "after" matters are referred, the day of reference is excluded. (Re Higham and Jessop, 9 Dow. 203.) A limitation in "months" simply, will be construed as lunar, not as calendar, months. (Re Swinford, 6 M. & S. 226; and see Simpson v. Margetson, 17 L. J., Q. B. 81; 11 Q. B. 23.) A reference under a statute which contains a limitation in "months" means calendar months, unless words be added showing lunar months to be intended. (52 & 53 Vict. c. 63, s. 3.) The arbitrator has no power to shorten the time given by the submission. Morphett, 2 D. & L. 967.)

When arbitrator bound to award.

(Re

The arbitrator is not bound to make an award, notwithstanding he has held several meetings. (Lewin v. Holbrook, 11 M. & W. 110; Crawshay v. Collins, 1 Swanst. 40; 3 ib. 90.) But he may contract to give his award upon the matter, and he is then as much. bound to do so, as the parties are to abide by his decision. (Pappa v. Rose, 41 L. J., C. P. 187; L. R., 7 C. P. 525, per Kelly, C.B.)