amenities of whatever kind they may be. Among these was loss of prospect, comfort and privacy.

Q. How did you make up the item of 8,000l. ?

A. In order that your Lordship and the jury may understand it, I will tell you the mode in which on the part of the Board they shaped their case. They said, true, the Duke's house might be injured if he did nothing, but the Duke may, if he likes, under the Act of Parliament, become a lessee of the Crown of, I think, very nearly half an acre of ground, between the house and the river. Then they said, you must assume that he will become the lessee of the half acre. I may say at once, that if I had assumed that he had no power to take that land, my damages would have been larger, and I assumed that he and all those who advised him would advise him to take that piece of land as lessee of the Crown. Then there was no dispute that if he did so the capitalised rent of the garden which Mr. Pownall put on it, and which was not disputed, was 150l. a year, and he said that for the Duke's remaining term would be sixteen and a half years' purchase, and that he said, therefore, would be capitalised at 2,4751 Adopting as I did that as a datum, my award was this: loss of jetty 2007., the structural damage to the walls 501. I think the kitchen was said to have been penetrated by water. The capitalised rent of the garden 2,4751. Then I put it that the expense of building a wall, laying out the garden, and other matters which the Duke would be put to, would be 6007.; and then I thought, after all had been done, the house would be of less value to be occupied by a nobleman or a gentleman than it had been before by the sum of 5,000l., and if those are added together, I think they will make up a sum of 8,3251.

Q. As to the last item what was it that occasioned the loss in the value of the house?

A. I said in the market: If that house was to be let to a nobleman or gentleman who came to take the house he would give less for it by a capitalized sum of 5,0007.

Q. By reason of what?

A. By reason of a good many things if I am to go into them; but that would only be matter that was passing in my own mind.

Q. How was the 5,000l. made up? was it 1,000l. for this and 1,000l. for that? Can you give us generally what the elements were?

A. I cannot give you one single amount but I can give you the elements. I had of course evidence given before me as your Lordship has heard by the surveyors who put it at 16,000l. They said the annual depreciation is 1,000l. a year in the rental. I did not think that, but when I took into consideration the fact that the Duke of Buccleuch's house was as it stood before with the road on one side in continuation of Parliament Street to Whitehall and on the other side perfect privacy, and although the garden is smaller than it will be if the Duke adopts what I thought he would adopt, namely, get. ting this piece of land, still there was perfect privacy. When the embankment was made the evidence shewed there would be a roadway and that roadway would be above the present level of the Duke's garden, and that therefore the only thing he could do would be to build a high wall and shut it out very much in the same way as the gardens of Buckingham Palace are shut out from the road. There would be traffic and dust and dirt and commotion and noise which seemed to me to alter the character of that house entirely. After I had heard all the speeches and had been a second time to see the place and had gone on the terraco and had walked round and had taken into consideration all I could, it seemed to me, although it is quite true some people might not have the same objection to it that others might, upon the whole if a person came there to take that house he would not give for it by 5,000l. what he would have given for it before.

The evidence of the umpire was objected to by the plaintiff and admitted by the judge subject to such objection and on the terms that such parts as the Court should deem inadmissible should be struck out. The Lord Chief Baron directed the jury to find a verdict for the plaintiff for the full amount, 8,235l., with interest

and costs, and gave the defendants leave to move to set it aside, if the Court should hold the award had been given for something in respect of which the umpire had not power to make an award.

A rule was obtained and cause shewn against it, and the Court of Exchequer unanimously discharged the rule (1). On appeal the Court of Exchequer Chamber reversed the judgment of the Court of Exchequer by a majority of four to two (2).

The judges were summoned, and Martin, B., Byles, J., Blackburn, J., Montague Smith, J., Hannen, J., and Cleasby, B., attended.

Sir R. Palmer and Kemplay for the appellant. The award is perfectly good on the face of it, and you cannot search into the mind of the umpire. If there was jurisdiction your Lordships cannot consider the mode in which it was exercised -Mortimer v. The South Wales Railway Company (3), unless misconduct is imputed-Hodgkinson v. Fernie (4), and that is not the case here. Therefore the umpire's evidence is inadmissible. In The City of Glasgow Railway Company v. Hunter (5), the damage did not arise from what was done on the land taken by the company from the plaintiff, and in The Caledonian Railway Company v. Ogilvy (6), no land of the plaintiffs was taken. The same in The Hammersmith and City Railway Company v. Brand (7), while in Rickett v. The Metropolitan Railway Company (8), the damage to the plaintiff beyond that sustained by the public generally was purely consequential. Now here the damage is direct, there is, besides dust and noise, the direct loss of

the advantage of having the river way up to and all along the length of the garden, and the jetty has been altogether removed. The use of the jetty and the advantage of having the river flowing past the garden were advantages peculiar to the plaintiff, and were not participated in by the public at all. He is therefore entitled to compensation-The Queen v. The Eastern Counties Railway Company (9), and not only had the Crown right and power to grant to the plaintiff these special easements, the same not interfering with the rights of the public in the tidal river-Gann v. The Free Fishers of Whitstable (10), The Attorney-General v. Johnson (11), Mason v. Hill (12), Miner v. Gilmour (13), Sampson v. Hoddinot (14), but the Thames Embankment Act specially mentions and directs parties to be compensated for loss of river frontage (15). Therefore the umpire had jurisdiction to include these matters in his award, and as the other damages directly flowed from the taking and appropriation of these easements he was titled to consider these other damages in the sum he thought proper to awardRe The Stockport, Timperley and Altringham Railway Company (16). It is contended that some at all events of the matters which the arbitrator took into his consideration were not within his jurisdiction, as the annoyance from passengers on omnibuses overlooking the plaintiff's garden, and Re Penny and The SouthEastern Railway Company (17) was cited. But in that case the sheriff specially directed the jury to assess in respect of such matters; their verdict was therefore bad of necessity; while in this case the award is perfectly good on the face of it, and even if the umpire had been influenced (9) 2 Q.B. Rep. 347; s. c. 11 Law J. Rep. (N.s.) Q.B. 66.

en

by the consideration of matters he ought not to have considered, which we deny, it was not open to the defendants to examine the umpire himself to shew that he had done so. His award was on the face of it given in respect of matters within his competency. His evidence confirmed this; and all that he said besides was inadmissible.

Hawkins and Philbrick for the respondents. If the arbitrator cannot be examined to shew that he has exceeded his jurisdiction, suppose he has really awarded upon matters on which he had no right to award, but this does not appear on the face of the award, then any arbitrator can give himself jurisdiction in respect of matters over which he has none, simply by making his award good on the face of it. This is not a case of privilege of the umpire but a matter of public policy. An umpire is a limited tribunal and it is open to anyone concerned to shew a superior Court that he has exceeded his jurisdiction. But the umpire himself is the only person who can give the necessary evidence-Brophy v. Holmes (18), Re The Dare Valley Railway Company (19), Ponsford v. Swaine (20). The umpire is not to be judge of what matters in point of law he had jurisdiction over. He is not to assume the authority of both judge and jury, or if he does there must be a mode of ascertaining whether he has exercised. the part of the judge correctly. judge misdirect a jury their verdict can be set aside, and if an umpire exceed his jurisdiction it would be most unfortunate if his award could not be set aside; but the only evidence is that of the umpire himself. This must therefore be admissible. On the evidence of the umpire it is perfectly clear that he awarded compensation in respect of injury (not structural) consequent on the execution of this work which has been authorised by Act of Parliament. This he had no power to do. The only authority the appellant's counsel could cite in favour of these claims was Re The Stockport, Timperley and Altringham Railway Company

(18) 2 Molloy 1.

If a

(16). That was very different from this case, for there the company took the plaintiff's land and upon it constructed their railway so close to his mill that he was in danger of fire from the sparks of their engine. The defendants have not taken land of the plaintiff. They have only placed a road on land which did not belong to him, and even if he were entitled to compensation for injuries of the kind considered by the umpire resulting from the taking of the jetty, the case of The City of Glasgow Railway Company v. Hunter (5), in this House, is a clear authority that the plaintiff cannot be entitled to compensation for injuries resulting from a roadway constructed on land which never did belong to him, like the soil or bed of this tidal river.

Sir R. Palmer replied, and cited, as to the appellant's right to use the river in connexion with his river frontage, The Attorney-General v. The Earl of Lonsdale (21).

The following questions were submitted to the judges:

(Questions to the Judges.)

1st. Whether the evidence given by the umpire was admissible; and if so, to what extent, and for what purpose?

2nd. Whether, upon the facts, admissions and evidence set forth in the Case and the appendix (so far as such evidence was admissible), the plaintiff in error is entitled to a verdict on the issue raised on the seventh plea ?

The learned Judges delivered their opinions as follows

CLEASBY, B.-Two questions were put by your Lordships to the judges in this

case

First. Whether the evidence given by the umpire was admissible; and if so, to what extent, and for what purpose?

Second. Whether upon the facts, admissions and evidence set forth in the Case and appendix (so far as the evidence was admissible), the plaintiff in error is entitled to a verdict on the issue raised on the seventh plea?

(21) 38 Law J. Rep. (N.s.) Chanc. 335; s. c. Law Rep. 7 Eq. 377.

I answer the first question by giving it as my humble opinion

1. That the umpire was a competent witness, like any other person, to prove matters material to the issues.

2. That questions might be properly put to him for the purpose of proving the proceedings before him, so as to arrive at what was the subject matter of adjudication when the proceedings closed and he was about to make his award.

3. That as regards the effect of the award no questions could properly be put to the umpire for the purpose of proving how it was arrived at, or what items it included, or what was the meaning which he intended at the time to be given to it.

First. With regard to the competency of the umpire as a witness, I am not aware of any real objection to it. With respect to those who fill the office of judge it has been felt that there are grave objections to their conduct being made the subject of cross-examination and comment (to which hardly any limit could be put) in relation to proceedings before them; and, as everything which they can properly prove can be proved by others, the Courts of law discountenance, and I think I may say prevent them being examined. But those objections do not apply at all to a person selected as arbitrator for the particular occasion by the parties, and he comes within the general obligation of being bound to give evidence. The practice entirely agrees with this; for it is every day's practice for the arbitrator to make an affidavit where a question arises as to what took place before him, and I have known him to be examined as a witness without objection.

Secondly. Being competent generally, it follows that he may be questioned as to what took place before him, so as to shew over what subject matter he was exercising jurisdiction. He might, therefore, prove that a claim was made for compensation in respect of one matter, A., and also in respect of another matter, B., and that both were entertained without objection; or he might prove that claim. B. was objected to and rejected, or that it was after objection received. He might, in short, give any evidence for the purpose

of shewing what was the subject matter into which he was inquiring, and upon which his judgment therefore was to be founded. This would enable us to judge whether he was acting within his jurisdiction or not, for a person exceeds his jurisdiction by prosecuting a judicial inquiry in a matter over which he has no jurisdiction, quite independent of the judgment eventually given. And it deserves notice, that as to this evidence the umpire would be no better witness than any other person, and would not have it in his power afterwards, by his own evidence, to sustain or destroy the award. He could be corrected by any other person present at the proceedings, including the shorthand writer, if there was one.

Thirdly. As soon as the award is made it must speak for itself. It must be applied, as in other cases, by extrinsic evidence to the subject matter, but cannot be explained or varied or extended by extrinsic evidence of the intention of the person making it. There appear to me to be the strongest objections against allowing the umpire to be examined for the purpose of shewing what he intended to be included in the award.

In the first place it is (and, indeed, must be) a written instrument, and the general rule is applicable, that its effect must be collected from the instrument itself. The subject matter to which it is applicable is ascertained by proof of the subject matter of the inquiry. I cannot think that if the umpire admitted upon the inquiry claims A. and B., and made a general award of one sum for compensation, he could be allowed to prove that in arriving at that sum he had rejected claim B. from the computation, or vice versa, if he had rejected claim B. upon the inquiry, could he be allowed to prove that he had included it in the computation?

The award taken by itself is something certain and fixed, and settles the rights of the parties; but if evidence be admitted of the intention and state of mind of the umpire when he made it, its certainty is destroyed, and its effect depends upon his memory, clearness of intellect, and perhaps upon his views and wishes taken up afterwards. Surely it would be a most

dangerous thing, after an award has been made which becomes of itself the foundation of a right, to allow anyone to retain the power of explaining it away, or even of defeating it. We can properly investigate the acts of a judge or arbitrator in prosecuting a particular inquiry, and his judgment founded upon it; but how can we investigate his secret thoughts or intentions? He is the only master of them, and what he says must be conclusive, as there is nothing which can contradict or explain it.

The objection to such evidence would be more striking if, instead of the umpire being appealed to, two arbitrators had joined in an award. Could each have been questioned as to the composition of the award? Although they had agreed as to the result and amount of the award it would not at all follow that they agreed in the steps by which it was arrived at. Indeed we know that agreement in such a result is often only arrived at by some concession and compromise, and in case of a difference in the evidence of what was intended, which is to govern and influence the award?

Or it may be further illustrated by supposing the case, instead of going to arbitration, to go to a jury. There is an assessor who presides, and he directs the jury to reject certain heads of claim and to compensate for others. The jury give a general verdict. Could the twelve jurymen be called as witnesses to shew to what extent they had severally acted upon the direction given, or against it, so as to vitiate the verdict by shewing that some of the jury included in it matters they could not properly include? I submit not, and that the verdict must speak for itself and be applied to the proper subject matter, viz., so much of the claim put forward as had been entertained.

An authority has been referred to which does not seem to agree with the opinion which I have ventured to express, the case of Brophy v. Holmes (18), decided by Lord Chancellor Hart. A question arose in that case whether a certain equitable claim under a guarantee had been disposed of by arbitrators in a reference of all matters in difference. It appeared that the claim had been brought forward by

the plaintiff, but the defendant protested 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 guarantee 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 on 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 guarantee, or did you look into it and all the matters in 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 this 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, namely, 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