No. 15. Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 435, 436.

of all matters in difference. It appeared that the claim had been brought forward by the plaintiff, but the defendant protested that the arbitrators had no right to consider it, and gave them a caution not to entertain it. The LORD CHANCELLOR says, "If the arbitrators said we think the guaranty not within our jurisdiction, that would be one case." All would agree, I apprehend, that so far the view taken was correct, because there would be an act of the arbitrators in refusing to entertain the claim which would be decisive. But in what follows the LORD CHANCELLOR appears to think the state of mind of the arbitrators is the subject of inquiry and not their acts; for he goes to say, "The plaintiff might have examined each of the arbitrators, and put this plain interrogatory to each Did you abstain in consequence of the caution, or for any other reason, from weighing the effect of the guar

anty, or did you look into it and all the matters in [*436] difference between the parties, and conclude on the whole case?" I beg most respectfully to dissent from this, as not being a correct mode of dealing with the case. The acts of the arbitrators and not the hidden operations of their minds are the proper subject of inquiry. If the claim was made and received and evidence given upon it, this would be decisive of the jurisdiction exercised by the arbitrators, quite independent of any reservation in the minds of the arbitrators at the time. One cannot help asking what would be the effect, in such a case, of the arbitrators giving different answers to the supposed question. It certainly strikes me very strongly that the state of the arbitrator's or Judge's mind is of no importance, except so far as it is embodied in some judicial act done by him. His mind may fluctuate and change more than once until the decision is delivered, and then, whether it be upon an interlocutory or final matter, the case is so far bound.

I wish to add that what has been said has reference only to such a proceeding as the present, and not to a proceeding of a different nature, viz., when an application is made (the submission having been made a rule of Court) to refer back the award, or set it aside on the ground of some mistake or misconception of the arbitrator so as to make it wrong that the award should stand. In the exercise of such a jurisdiction the Court to which the application was made would probably reject no means of informing itself whether the arbitrator had proceeded upon such a mistake or misconception. This was the nature of the application in the case In re Dare Val

No. 15.

Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 436–446.

ley Railway Company L. R., 6 Eq. 429, 37 L. J. Ch. 719, where ViceChancellor GIFFARD thought a written statement by the arbitrator of his reasons admissible in considering whether the arbitrator had proceeded upon an erroneous view of his duties or not. The opinion given has reference only to an action at law upon the award, in which of course the rules of evidence must be attended to.

I beg, therefore, to answer your Lordships' first question, by giving my humble opinion that the umpire was a competent witness, that he might properly be questioned as to the subject of claim put forward and inquired into before him, and that he could not properly be questioned as to the matters which he included in or excluded from his award.

[*437]

*I am authorized by my Brother BRAMWELL to state (by permission of your Lordships) that he was misunderstood when he gave his opinion in the Court of Exchequer, if he was supposed to hold that the umpire was not a competent witness; Buccleuch v. The Board of Works, L. R., 3 Ex. 327; 37 L. J. Ex. 177. He did not hold that he was not competent for any purpose, but only that he could not be questioned as to the composition of his award. This appears from the report of what he said, especially from that in the Law Journal.

The effect of the above opinion applied to the present case is, that the questions as to what were the matters in discussion before the umpire were properly put, and that those which follow beginning with the question: "Will you tell us of what items the £8000 was composed ?" were improperly put; and it seems that the answers to the questions properly put raise sufficiently the question of excess of jurisdiction by the umpire. .

My Lords, in answer to the first question proposed by your Lordships, I say that I am of opinion that the evidence of the umpire was admissible, and in support of this opinion I [* 442] beg leave to refer to the reasons given by my Brother BLACKBURN in his judgment in the Court below, to which I am unable to add anything.

[446]

Mr. Justice BLACKBURN:

My Lords, in answer to your Lordships' first question, I have to state that I am of opinion that the evidence of the umpire was admissible, so far as it tended to show that he had exceeded his jurisdiction by including in the award compensation for matters for which he was not authorized to give compensation.

- Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 446-449.

I stated fully in the judgment I delivered in the Exchequer Chamber in this case, L. R., 5 Ex. 228, my reasons for coming to this opinion, and then quoted all the authorities that I am aware of bearing on the question; and, as nothing has occurred to me in addition to what I there stated, I think it better to refer your Lordships to that printed judgment than to repeat the same words.

I have only to add that I think the evidence of a juryman as to what were the grounds of the verdict of himself and his fellowjurors has always been rejected on grounds of public policy, some of which are well indicated in the opinion which my Brother MARTIN is about to deliver to your Lordships in this case, and which I have had the advantage of perusing. I [* 447] think those grounds are not applicable to an umpire, and, consequently, I do not think that a decision by your Lordships that the umpire's evidence is admissible would render it necessary to admit the evidence of jurors.

Mr. Justice BYLES:

I entirely agree with the judgment about to be delivered. by my Brother Martin.

*Mr. Baron MARTIN:

[448]

[* 449]

My Lords, in answer to your Lordships' first question, I am of opinion that the evidence given by the umpire was admissible, and I see no limit as to its purpose and extent beyond the ordinary one, that evidence is to be confined to the matter in issue. The object of calling him was to prove the seventh plea, viz. that the sum awarded by him included damages and compensation for matters in respect of which he had no power or right to award or assess compensation. Now if this matter is to be the subject of judicial inquiry, there is no person who possesses the same means of proving the truth as the umpire. He must know in respect of what he awarded, and to exclude him would seem like excluding the truth. At the same time I cannot but feel that if he be an admissible witness, there will be very great difficulty in excluding a juryman who has assessed compensation in a case under the Lands Clauses Act.

The award is said to be bad, because the umpire has only a limited authority by virtue of the 63rd section, which it is alleged he has exceeded. By the 49th section jurymen have precisely the same limited authority. They must deliver their verdict in two separate sums, but the same limited authority is conferred upon

No. 15.

- Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 449–454.

both. Now if the arbitrator or umpire is competent to give evidence that he exceeded his authority, and so to annul and defeat his award, what reason is there why a juryman is not competent to give evidence to prove that the jurors included in their verdict compensation in respect of a matter which is without the 49th section? I find a difficulty in answering the question. There can be no doubt as to the inconvenience and uncertainty which will arise if jurymen are permitted to give evidence to defeat their verdicts. If one juryman is admissible all are admissible, and their evidence may be conflicting, and great inconvenience arise. In ordinary cases in the Courts of Law and Equity jurymen are not permitted to make affidavits, or give evidence to affect or defeat their verdicts, and although I feel myself bound to answer your Lordship's question as I have done, I am conscious that your Lordships, as the Court of ultimate resort, may, by reason of the great inconvenience, feel yourselves called upon to arrive at a different conclusion.

[* 450] *I can find no authority against the umpire's admissi bility. Two cases have been cited in its favour, and although I feel that great inconvenience may arise from permitting an award to be so impeached, I nevertheless feel constrained to answer your Lordships' first question as I have done... I am authorized to state that Sir Montagu Smith, who heard the arguments, concurs in this judgment.

[454]

My Lords, in this case the four Judges of the Court of Exchequer were unanimous in favour of the plaintiff in error; but in the Court of Exchequer Chamber their judgment was reversed by a majority of four Judges to three; the opinions of seven Judges having been thus overruled by a minority of four. Of the six Judges whose assistance your Lordships had upon the hearing of the appeal, all of them, with the exception of Mr. Justice BLACKBURN, concurred in the judgment of the Court of Exchequer.

The case upon the appeal may conveniently be considered under the heads of the two questions put by your Lordships to the learned Judges. First, whether the evidence given by the umpire was admissible, and if so, to what extent and to what purpose? Secondly, whether, upon the facts, admissions, and evidence (so far as such evidence was admissible) the plaintiff in error is entitled to a verdict on the issue raised on the 7th plea.

- Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 454, 455.

The Duke of Buccleuch is tenant to the Crown of Montagu House in Whitehall Place. At the time the Metropolitan Board of Works was proceeding to construct the embankment on the north side of the River Thames the Duke held the premises under a lease, dated the 19th of April, 1810, for a term of sixty-two years from the 5th of January, 1806, by the description of "all the piece of ground, &c., abutting eastward on the River Thames, on which Montagu House stood, together (inter alia) [* 455] with all easements, waters, watercourses, profits, commodities, advantages, and appurtenances whatsoever to the said piece of ground belonging or appertaining, or therewith or with any part thereof held, used, occupied, or enjoyed, or acccepted, reputed, deemed, taken, or known as part, parcel, or member thereof." This lease would have expired in January, 1868; but before its expiration the Duke, by agreements with the Crown, upon spending £20,000 upon the premises in rebuilding the house and in other improvements, was to be entitled to a renewal for a term of ninety-nine years. He had performed his part under these agreements, and therefore at the time of the execution of the works by the Metropolitan Board of Works his interest in Montagu House and premises was that of a lessee for the residue of a term of ninety-nine years.

Montagu House and premises were bounded on the river side by a wall, along the whole length of which, at high water, the river flowed. There was a gate in this wall, usually kept locked, which led from some stairs in the garden of the house to a causeway or pier which ran out into the river to low-water mark. The causeway had been used for more than forty years for landing coals from barges, and for bringing vegetables, &c., for the use of the tenants of Montagu House, who always repaired the causeway at their own expense when it needed repair.

By the Thames Embankment Act, 25 & 26 Vict. c. 93, the Metropolitan Board of Works was authorized to construct an embankment on the north side of the Thames from Westminster Bridge to Blackfriars Bridge. In the course of performing the necessary works it became necessary to remove the causeway and the landing-place connected therewith, and also entirely to shut off Montagu House and premises from direct access to the river. In the place where the water had previously flowed a solid embankment was made, which has since become a public highway.