THE STEWARD V. PROCTER ARBITRATION.

Oamaru Mail, Volume IV, Issue 1029, 7 August 1879, Page 2

THE STEWARD V. PROCTER ARBITRATION.

The following is tho judgment «tetivored in this case, which we copy from tho Otago Daily Times : "I find that I am able to decide this, case upon facts which appear to be admitted or undisputed on the affidavits. The reference was made to two arbitrators or an umpire appointed by them.. The arbitrators, the umpire, and tho: parties all met at the oflice of Messrs. Procter and Steward, 011 the 28th of May. At tho meeting a balance-sheet and other papers wero produced in duplicate by Mr. Steward, and one copy was handed to each arbitrator. These statements of account were examined ana checked' by Mr. Steward and Mr. Smith,, one of the arbitrators. Mr. Barracloughj, the umpire, was present, but according to a statement in paragraph 9 of Mr. Smith's affidavit, ' he took no part in the examination, nor was he in a position to see whether the figures as put in the balancesheet were correct or not.' After this examination the two arbitrators and tho umpire adjourned to Mr. Smith's office, where the matter was further considered by the arbitrators in the absence of both Mr. Steward and Mr. Procter. On certain points the arbitrators disagreed, and the umpire, on being referred to, decided in favor of the view taken by the arbitrator for Mr. Steward. The arbitrators, and the umpire then proceeded to a soliei-. tor's office, and the umpire gave instructions for the award. After leaving thesolicitor's office the three met Procter in. the street, when Barraclough, the umpire,, told Procter that the award had beeut made, and Proctor protested that hewould not stand by it. It appears, therefore, that the award was made by theumpire before either party was aware that, the time had arrived when the umpire'si functions were to commence. The jurisdiction of the umpire did not attach until! ,a difference of opinion had arisen between the arbitrators, and no difference of opinion had arisen when the arbitrators and umpire left Steward and office. It is the duty of an umpire v> pursue the same regular course with respect, to the conduct of the case as if lie- were commencing a new case as arbitrator. It is true that an arrangement ia often made that the umpire shall sit with the arbitrators and itear the evidenco once for all. If an, arrangement of that kind is proved to exist, then no doubt the. umpire woxild not be bound ta hear the-, evidence aver again. There must, how-, ever, be clear proof of an arrangoment. : between the parties that such a course is; to be, adopted. All that appears in the: present case is that the umpire was present, in the room while the arbitrators were, investigating the, accounts, but took; no part himself in the investigation). This circumstance, in my opinion, affords no sufficient proof that the ordinary procedure was to be departed from or that either party was to bo deprived of his right of being heard before the umpiro. The umpire has in effect determinod behind the backs of the parties, and before they were aware that tho circumstancos had arisen which gave the umpire jurisdiction. This, in my opinion, renders the award invalid. The rule to set aside the award must be made absolute." —Rule ! absolute, with costs.