the usual order of reference to the Master; and on the 6th of February, the Master being of opinion that the answer was impertinent to a large extent, made his report or certificate accordingly. The Master, at the same time, stated, that in the view which he took of the case, it was not a case for costs, and that he should not give costs against the Defendant. This was done, on the supposition that the Master had a discretion upon the subject of costs in such a case: but this was denied by the Plaintiff. The certificate was filed on the 8th of February, and on that day, the Plaintiff gave notice to the Defendant, that he should proceed to tax and, if necessary, to enforce payment of the costs in the usual manner; and, further, that the Defendant was not to refrain from excepting, on the supposition that he was not liable to costs. To this the Defendant answered, that the Master had given no costs, and he relied on that. The Plaintiff, however, persevered, and on further consideration the Master was of opinion, that according to the practice of the Court, the Plaintiff was entitled to costs, and that the Master had no discretion on the subject; and accordingly, after the warrant to expunge was taken out, and the costs left, the taxing Master was requested to tax them. They were taxed, and a subpœna for payment of them was issued. I am of opinion, that the Master has no authority to determine whether the Defendant is or is not to pay the costs occasioned by impertinence in his answer. Before 1844. LEWIS บ. SMITH. 1844. LEWIS บ. SMITH. Before the order of December 1833, after the impertinence had been found, the Plaintiff was entitled, as of course, to an order to expunge the impertinent matter, and for the taxation and payment of the costs. (a) And the 22nd Order (b), directing the Master to expunge the impertinence, and enabling him, without further order, to tax the costs, did not do more than relieve the Plaintiff from the expence of obtaining an order, which he was previously entitled to as of course. The Master was enabled to do, without order, that which before he could only do under an order, which the Plaintiff obtained as of course. It appears to me that the Master's second thoughts were right, and that he had no discretion to refuse the costs which the Plaintiff demanded. On reading the affidavits, and after communicating with the Master, I have great doubt whether the Defendant was really misled, or under any mistake which prevented him from endeavouring to obtain relief from the report in due time. Nevertheless, it may have been so; and if the Defendant now informs me that he is advised that he has good ground for excepting to the report, I think that I ought to give him leave to do so, and to stay the proceeding for the costs until the exceptions are disposed of. (c) If he does not now intend to except, I must dismiss this petition. (a) See Hinde's Pr. 256., 1 Turn. & V. Pr. 782., 1 Newland's Pr. 277., 1 Harrison's Chanc. Pr. 193.; Muscott v. Halhed, 4 B. C. C. 222.; and Tyrrel v. Redifer, 1 Mer. 132. (b) Ordines Can. 50. (c) See also Desanges v. Gregory, 6 Sim. 475.; and Everett v. Prythergch, 12 Sim. 464. 1844. HARVEY v. SHELTON. THIS July 3. 4. Award set aside, on the ground of interviews having taken place between and one party, Disputes arose between the Plaintiff and Defendant, the arbitrator which gave rise to a cross suit, which proceeded to a decree to take the accounts. The parties thereupon referred the matters in difference to the arbitration of a Mr. Wakefield. Two meetings took place between the parties before the arbitrator, on the 26th and 27th of September 1843, respectively; and on the second occasion, it was arranged, that the accounts should be referred to Mr. Norris an accountant. It was sworn, on the one side, that at the second meeting it was agreed that a further meeting of the parties should take place before the arbitrator; but this was denied by the other side. Norris, however, proceeded in the examination of the accounts, but before the award was made, the following circumstance took place, which was relied on as inva lidating the award : "On the 6th of December, Shelton was sent for by the arbitrator, to meet him at the office of the accountant, on which occasion he was called upon explain an entry of 350%. in the ledger, and which to in the absence of the other. Similar misconduct on the part of the person applying, will not prevent the Court setting aside the award, for the matter concerns the due adminis tration of justice. A motion was made to upon the last The respon- Shelton the motion was ordered to stand over, with liberty for the respondent to give notice of motion to dispute the award: Held, that this operated as an extension of the time. 1844. HARVEY v. SHELTON. Shelton pointed out to the arbitrator to have been accidentally overlooked by the accountant, and with which the arbitrator was satisfied; and nothing else whatever passed or took place at such meeting, in relation to the matters in reference, or any of them. On the 27th of January, Shelton was again sent to by the arbitrator, to meet him at the office of the accountant, when he was again called upon by the arbitrator to explain, as he thought, an omission of 377. 10s. in the account, and one or two other small omissions, all of which sums Shelton pointed out; upon which the arbitrator was satisfied, and the accountant expressed his surprise that he had overlooked the same, and regretted to have thus troubled Shelton; and nothing else passed between Shelton and the arbitrator on such last occasion, or at any other time, except in giving the explanations hereinbefore mentioned and required by such arbitrator." Neither the Plaintiff nor any person on his behalf was present at these meetings between Shelton and the arbitrator. On the other hand, it was objected, that Harvey had sent to the arbitrator a letter relating to the matters, which he had not communicated to the other side, and that he also had attended the arbitrator and accountant in the absence of Shelton. Mr. W. T. Daniel, in support of the motion, contended, that the award was invalid; first, because at the second meeting, it had been agreed that a further meeting of the parties should take place, yet the award had been made without any such further meeting having been had. In Dodington v. Hudson (a), the De (a) 1 Bingham, 384. fendant's fendant's attorney, swore he understood the arbitrator meant to have called another meeting, and none having been had, the Court set aside the award. So in Pepper v. Gorham (a), where arbitrators, who had proceeded in a reference, informed the Defendant, who was present at the meeting, that they would suspend their proceedings till the books of account had been referred to, it was held, that the having afterwards made an award in his absence, without examining such books, was a good ground for setting aside the award. And in Walker v. Frobisher (b), an award was set aside, the arbitrator having received evidence, after notice to the parties that he would receive no more, in which they acquiesced. Secondly, because there had been private meetings between Shelton and the Arbitrator, where statements had been made in the absence of the Plaintiff, which the Plaintiff had not the opportunity of meeting, and which influenced the arbitrator's decision; and that this was manifestly contrary to the first principles of justice. Thus where a private examination of a party by arbitrators had taken place, the Court of Common Pleas set aside an award: in the Matter of Hick. (c) Thirdly, he relied on errors in the award, the particulars of which, however, it is not necessary to state. Mr. Turner and Mr. Glasse contrà. On the first point, the evidence shews distinctly that there was no arrangement made at the second meeting for a further hearing. All that then remained to be done, was a matter of account, to be settled by the arbitrator with the assistance of the accountant. (a) 1 Moore, 148. (b) 6 Ves. 70.; and see In re Plews, Q. B., January 29, 1845. Secondly, (c) 8 Taunt. 694. 1844. HARVEY บ. SHELTON. |