When the arbitrator has accepted his office, he fixes the times and place for the parties to appear before him. Each of them furnishes him with a statement of his case, which is usually done by giving him a copy of the briefs on each side ; and on the day appointed he proceeds to hear them (either in person, or by their counsel or attorneys), and to receive the evidence on each side, nearly in the same manner as a judge at an ordinary trial : but he is frequently invested by the order of reference, with a power of examining the parties themselves.
No means existed of compelling the attendance of witnesses, or the production of documents, before an arbitrator, until the statute 3 & 4 Will. IV. c. 42, au thorized the court or a judge to make an order to that effect ; disobedience to which order, if served with proper notice of the time and place of attendance, becomes a contempt of court. The witnesses, thus compelled to attend, are entitled to their expenses in the same manner as at a trial. And where the order requires the wit nesses to be examined upon oath, the ar bitrator is by the same statute authorized to administer an oath or affirmation, as the case may require ; and any person who gives false evidence may be indicted for perjury.
The extent of an arbitrator's authority depends on the terms of the reference : it may either be confined to the action pend ing between the parties, or it may include any other specified grounds of dispute, or all disputes and controversies whatever existing between them at the time of the reference. Where the matters referred to him are specified, it is his duty to de cide upon them all ; where they are not specified, it is his duty to decide upon as many as are laid before him. In no case is an arbitrator authorized to adju dicate upon anything not comprehended in the reference ; such, for instance, as any claims or disputes which may have arisen after the reference was made, or, where the reference is specific, anything not expressly included in it.
An arbitrator being a judge appointed by the parties themselves for the settlement of their differences, his decision on the merits of the case submitted to him is conclusive. But if his award be partially or illegally made, the superior courts have the power of setting it aside, upon application being made within reasonable time. This happens either, 1. where the award is not co-extensive with the arbi trator's authority ; or, 2. where it appears on the face of it to proceed on mistaken views of law, or to fail in some of the qualities required for its validity ; or, 3. where any misconduct has been
committed. This may happen in two cases : 1st, where the arbitrators have been guilty of corruption or other misbe haviour, as, if they have proceeded to ar bitrate without giving notice of the meet ing, have improperly refused to receiva evidence, or committed any other gross irregularity in practice : 2ndly, where it is proved that the arbitrator has been misled by fraud used by either of the parties. Where an award is absolutely void. as where it is made after the au thority of the arbitrator has ceased, it is not in general necessary to set it aside, for it is incapable of being enforced.
When the award has been made and delivered, if one of the parties refuses to comply with it, the other may bring an action against him on the award. But the most prompt and efficient remedy is to apply to the court for an attachment, grounded on the contempt of court which he has been guilty of by disobeying the order of reference. In opposing this application, the other party may insist on any objection apparent on the award itself; but if there were any other objections affecting its validity, and he has neglected to apply to the court to set it aside within the time fixed by them for that purpose, it is too late for him to avail himself of them.
When, in the original action, a verdict has been given for the plaintiff subject to a reference, if the defendant does not abide by and perform the award, the plaintiff may, by leave of the court, en ter a judgment and sue out execution for the whole damages mentioned in the verdict.
2. Where no action has been com menced, the parties may refer their differences to arbitration by mutual agreement. Every person capable of making a disposition of his property may be party to such an agreement : no pecu liar form is necessary for its validity.
Whether the submission be verbal or in writing, it is in the power of either of the parties to revoke it, and thus put an end to the authority of the arbitrator at any time before the award is made. In order to prevent this, it is usual for the parties to make it a part of their agree ment, that they will abide by and perform the award ; and if after this either of them should, without sufficient reason, revoke his submission, or otherwise prevent the arbitrator from proceeding with the arbi tration, he will be liable to an action for the breach of his agreement.