as to the other part by the umpire (y), unless, indeed, there be an express provision for the purpose (2). SECT. 2. The umpire, instead of examining the witnesses, &c., him- Examination self, may receive the evidence from the arbitrators, unless the of Witnesses, parties, or one of them, object to such a course, and require him to examine them himself (a). &c., by. within limited The umpirage, like the award, must be ready to be delivered Umpirage within the time limited for it. Where, by deed of arbitration, must be made dated the 1st of June, the arbitrators were to make their award Time. on or before the 1st of October, with power, in case they should not agree in making their award within the time, to appoint an umpire, and his award to be binding, so as it were made within six months after the date of his appointment; and the arbitrators appointed an umpire within the time allowed to them, who made his umpirage within six calendar, but not within six lunar months of his appointment, the court held that the umpirage was ill made (b). Umpire. In a case where the arbitrators were to make an award by Enlargement 20th August, or such other day as they should appoint, and of Time by in case they disagreed an umpire was to decide by the 20th September, or such other day as he should appoint; the arbitrators enlarged their time to the 1st November, and in October gave the umpire notice of their being unable to agree; the umpire had previously (on 17th September) enlarged his time to December, in which month he made his award; and the court held, that such award was good, inasmuch as the power of enlargement by the umpire was not suspended, until, by the final disagreement of the arbitrators, he became empowered to decide upon the case, and that the non-agreement of the arbitrators was sufficient to authorize his interference to enlarge his time. The court also held, that notice of the enlargement by the umpire was sufficiently given to the defendant by a verbal intimation at the time of serving the award, and demanding performance; and that the non-agreement of the arbitrators, so as to authorize the umpire to interfere, was sufficiently notified by its appearing on the face of the award (c). No stamp is requisite to the appointment of the umpire (d). Stamps. Court. Costs. Where there is no cause in court, the award as to Costs. costs depends entirely upon the terms of the submission; if where there the submission give the arbitrator no authority as to costs, he is no Cause in cannot award them (e). But where authority is given to him upon that subject, he may order either party to pay the costs, or each to pay a moiety, unless the submission require that the costs abide the event; or if the award be silent as to costs each party must pay his own costs, and the costs of the reference, equally. Where there is a cause in court, the award, as to the costs Where there of the reference, depends upon the terms of the rule or order is a Cause in (y) Tollit v. Saunders, 9 Price, 612. (3) Per Wood, B., Tollit v. Saunders, 9 Price, 619: see Heatherington v. Robinson, 7 Dowl. 192. (a) Hall v. Lawrence, 4 T. R. 589: post, 1248: Re Tunno, 2 Nev. & M. 328: Twogood v. Twogood, Id. 335, n. (b) Re Swinford, 6 M. & Sel. 226. (c) Doddington v. Bailward, 7 Dowl 640. (d) Routledge v. Thornton, 4 Taunt. (e) See Candler v. Fuller, Willes, 64: Court. BOOK IV. Reference. under which the cause is referred; and if the rule or order give the arbitrator no authority as to costs, he cannot award them (f). But if, by the rule or order of reference, the costs (generally) are to abide the event, this includes the costs of Costs of the the reference, as well as the costs of the cause (g). And generally, the costs of the reference are costs in the cause, where the reference is solely of the matters in dispute in the action (h). But this is, it seems, otherwise where other matters not in the cause are referred (i). And in a case where all matters in difference were referred, except the costs of the action or suit, which were to abide the event of the arbitration, in like manner as if the cause had been tried, it was decided that the arbitrator had no power over the costs of the reference; and Gibbs, C. J., observed, in giving judgment, "The substance of the cases cited is, that where parties have agreed that the arbitrator shall give costs generally, they extend to the costs of the reference, as well as to those of the suit; but there was no such agreement here." It is, however, perfectly clear, that, where a cause is referred, and the order of reference is silent as to costs, the arbitrator has power over the costs of the action, but not over the costs of the reference (k). Where the arbitrator awarded the costs of the reference, but did not specify the sum, the Court of Common Pleas also held, that it might be ascertained by the prothono tary (1); and, in other cases, where the sum was specified, that court held, that it was examinable by the officer of the court, who might reduce it if he thought it exorbitant (m). If each party be ordered to repay a moiety of the costs of the reference, one of them may pay the entire sum, in order to get the award from the arbitrator; and he may afterwards have the same remedy against the other, if he refuse to repay his moiety, as he would have for the non-performance of any other part of the award (n). In practice, however, in order to obviate all questions upon this point, it is usual, in the award, to order the party in whose favour the award is made to pay the entire costs of the award in the first instance, and then that the other party shall repay him a moiety of them (o). Costs of the But as to the costs of the action, the arbitrator may order either party to pay them, although no express authority had been given to him upon that subject by the rule or order of reference (p). But if, by such rule or order, the costs are "to abide the event," the arbitrator cannot exercise any discretion in the awarding of them, or even in fixing their (f) Firth v. Robinson, 1 B. & C. 277: Candler v. Fuller, Willes, 64: Strutt v. Rogers, 7 Taunt. 213; 2 Marsh, 524, S. C.: see Grove v. Cor, 1 Taunt. 165: Mackintosh v. Blyth, 1 Bing. 269; 8 Moore, 211, S. C. (g) Wood v. O'Kelly, 9 East, 436; but see Barnes, 123; Pract. Reg. 103. (h) Taylor v. Gordon, 1 Dowl. 720: see Firth v. Robinson, 1 B. & Cres. 277. (i) Tregoning v. Attenborough, 1 Dowl. 225; 5 Moo. & P. 453; 7 Bing. 733, S. C: see Mackintosh v. Blyth, 8 Moore, 211; 1 Bing. 269, S. C. (k) Firth v. Robinson, 1 B. & Cres. 277: Candler v. Fuller, Willes, 64; Roll. Arbitr. (K.) 13: Whitehead v. Firth, 12 East, 167: Bell v. Bellson, 1 Chit. Rep. 157; 1 B. & (1) Barrett v. Parry, 4 Taunt. 658. (n) Hicks v. Richardson, 1 B. & P. 93: Stokes v. Lewis, 2 Smith, 12. (0) This is of use for another purpose, vis. to secure to the arbitrator his costs of the award, for which it is very doubtful whether he has any remedy. (See Burroughs v. Clarke, 1 Dowl. 48). (p) Roe Wood v. Doe, 2 T. R.644: Firth v. Robinson, 1 B. & C. 277: see Lerois v. Harris, 4 D. & R. 129; 2 B. & C. 620, &. C. : Rigby v. O'Kell, 7 B. & C. 57. amount (q), unless such discretion be necessary for properly adjudicating upon all the matters referred (r); and the party who would have been entitled to ordinary (s) costs if the action had proceeded, shall be entitled to them under the award (t), and to the same amount, and under the same circumstances; and, therefore, if the defendant, from the amount of the damages awarded, would have been entitled to enter a suggestion on the roll under a court of conscience act, if a verdict for the same amount had been given, he shall be entitled to costs under the award; and the same where the plaintiff is awarded no more than what is paid into court(u). And where a plaintiff in trespass would be entitled only to as much costs as damages, he shall have no more under the award (v). And the arbitrator need not notice the costs of the cause where they are to abide the event (w). In such a case, if the award amount to a legal termination of the suit, each party is, in general, entitled to costs on the issues on which he succeeds (r). If, on the other hand, it do not amount to a legal termination of the suit, and be partly in favour of one party and partly of the other, neither is, in general, entitled to costs (y). In some cases, however, as where several actions are referred, the submission provides that the costs shall abide the event of each (2). If all in favour of one, he is, of course, in such case, entitled to costs (a). It should be observed, however, that the award does not of itself entitle the party in whose favour it is made to costs allowed by particular statutes, on verdict, nonsuit, or other specified mode of termination of the suit, unless the arbitrator has and exercises the power of ordering the suit to be terminated in that particular mode(b). Therefore a defendant in replevin is not entitled to double costs, under 11 G. 2, c. 19, on an award made in his favour in pursuance of a reference before issue joined (c). And the court cannot award costs to a defendant where the plaintiff, on a reference before issue joined, has been awarded an amount less than that for which he had arrested the defendant (d). SECT. 2. of abortive Reference. When the cause goes off upon an ineffectual arbitration, Costs in Case and is afterwards tried, costs are allowed as upon a remanet (e). But where a cause was referred at Nisi Prius, and the award thereon was afterwards set aside, and the cause tried again, it was held, that the party ultimately succeeding was not entitled to the costs of the first trial (ƒ) And where a cause was referred before trial, and the reference proving abortive, the cause was afterwards tried, it was held, that the successful (9) Kendrick v. Davis, 5 Dowl. 693. (r) Reeves v. M'Gregor, 1 Per. & D. 372. (8) See Gurney v. Buller, 1 B. & A. 670: Holder v. Raith, 4 Nev. & M. 466. (t) See Highgate Archway Company v. Nash, 2 B. & Ald. 597: Boodle v. Davies, 4 Nev. & M. 788. (u) Dawson v. Garrett, 2 Dowl. 624. (v) Swinglehurst v. Altham, 3 T. R. 138, 139: ante, 1142. See upon this subject generally, Hullock, 417 to 432: Watson on Awards, 89: Finlayam v. M'Leod, 1 B. & Ald. 663: Pratt v. Hillman, 6 D. & R. 481: Rigby v. O'Kell, 7 B. & C. 57: Stratton v. Green, 1 Moo. & Scott, 668; 8 Bing. 437, & C.: Sivy v. Webster, 2 Dowl. 46. (w) Jurp v. Grayson, 1 C., M. & R. (x) Danbury v. Rickman, 1 Scott, 564. (e) Gurney v. Buller, 1 B. & A. 670: see - (d) Holder v. Raith, 4 Nev. & M. 466. (e) Burchell v. Bellamy, 5 Burr. 2694; Sayer, Costs, 179, S. C.; Tidd, 9th ed. 833: and see Seeley v. Powis, 3 Dowl. 373. (J) Wood v. Dunean, 5 M. & W. 87. party was not entitled to the costs of the reference as costs in the cause (g). Lastly, as to the taxation of the costs awarded:-If the arbitrator have not awarded a gross sum for costs, but costs generally, with or without any express direction as to their being taxed by the master, move to make the order or submission a rule of court; draw up the rule with one of the masters, and get an appointment from him at the foot of it; give the usual one day's notice of taxation; serve a copy of the rule and appointment on the opposite attorney; and at the time appointed attend before the master, who will tax the costs and mark them on the rule. When the arbitrator directs that the costs of the cause should be taxed by the proper officer, they should be taxed according to the postea (h). Even where the cause is referred before issue actually made up, the rule of H. T., 2 W. 4, r. 74, as to deducting costs of issue found for the opposite party, must be observed on the taxation of costs(i). Where a cause is referred at Nisi Prius, and less than 207. is awarded, the costs must be taxed on the lower scale, unless there be an express provision to the contrary in the submission (j). Care should therefore be taken to insert in the submission a provision that the arbitrator may certify that the cause was proper to be tried before a judge. Indeed, even in a case where such a clause was inserted, and the arbitrator certified, but the judge died before the certificate was made known to him, the Court of Queen's Bench held, that they had no power to order full costs (k). If the arbitrators award the defendant to pay the plaintiff his costs of suit, to be taxed by the proper officer before a particular day, it is the defendant's business to have them taxed before that day (7); and if he do not, the plaintiff may, it seems, proceed to have them taxed ex parte(m). It may be here observed, that an arbitrator cannot award costs to be taxed by any person except the proper officer of the superior court; for this would be a delegation of the authority: the taxation of costs by the master being a ministerial act, but in any other person a judicial act (n). And it would appear that the arbitrator should assess the costs of an action in an inferior court, for there may be no proper officer to tax them (o). Where the arbitrator has a discretion in awarding costs, he cannot award any other than the common costs between party and party, unless he be expressly authorized so to do(p); and of course, where the arbitrator awards costs to be taxed by the master, such costs will be taxed as between party and party, and not as between attorney and client (q); and where a cause was referred by order of Nisi Prius, and by the order the costs of the cause were to abide the event of the award, and the costs of the special jury, which had been obtained on the motion of the defendant, and of the reference, (g) Doe Davies v. Morgan, 4 M. & W.171. (j) Wallen v. Smith, 5 M. & W. 159. (m) Sadler v. Robins, 1 Camp. 253. temp. Hardw. 181, S. C. (0) Winter v. Garlick, 1 Salk. 75: see Addison v. Gray, 2 Wils 293: For v. Smith, Id. 268: Hanson v. Liversedge, 2 Vent 242, 243. (p) Whitehead v. Firth, 12 East. 167: Barker v. Tibson, 2 Bla. Rep. 953: Marder v. Cox, Cowp. 127: but see Hartnall v. Hill, 1 Forest's R. 73 (q) Pratt v. Salt, Cas, temp. Hardw. 161. were to be in the discretion of the arbitrator; the court held, that the arbitrator had only the power of allowing the costs of the special jury as costs in the cause, if the party who moved for the same were to succeed; and, therefore, that, after awarding a verdict for the plaintiff, he could not award that he should pay the costs of the special jury (r). Where a submission is made under an order of Nisi Prius, the arbitrator may award costs subsequent to the order. But where the submission is by bond, he cannot award subsequent costs (s). An error as to costs does not necessarily vitiate the award (t). As to liability to pay costs caused by revocation, default of parties, &c., see Morgan v. Williams, 2 Dowl. 153, and ante, 1225. SECT. 3. how deter Arbitrator's Authority, how determined.] The arbitrator, as Arbitrator's soon as he has made his award, is functus officio, and cannot Authority. afterwards alter it in any material part (u). So, if he do not mined. make his award within the time limited by the rule, order, or submission, or within the enlarged time, (if the time have been enlarged), any award made by him afterwards will be void (x). So, in general, but not necessarily, by the appointment of an umpire (y), or by an express revocation of the submission (z), or by an implied revocation of it (a), the authority of the arbitrator is determined. In what Cases, 1239. SECT. 3. Setting aside the Award. 1. Where the Arbitrator has 2. Where the Award is uncer- Final, either by reason 4. Where the Award is incon- 5. Where the Award is ille- In what Cases-continued. 6. Where the Proceedings 7. Where the Arbitrator has Costs of Application, 1254. In what Cases.] Ir may be necessary to premise, that the In what Cases. court will not enter into an examination of the merits, upon |