Frissell v. Fickes

Scott, Judge, delivered the opinion of the court. It is objected to the award that the umpire was not sworn. Arbitrators must be sworn before they hear the evidence. (Toler v. Hayden, 18 Mo. 399; Caldwell on Arbitration, 101 note.) A submission to two arbitrators and their umpire, or to two and their umpire in case of disagreement, means precisely the same thing; for umpire, in the common signification of the word, denotes a person that is to make an end of the matter, if the others can not. (Bac. Abr. Arbitrator D., 279; 10 B. Mon. 123.) If arbitrators join with the umpire in the deed of umpirage, it is merely surplusage and the deed is good. (3 Burr. 1474; Bates v. Cook, 9 Barn. & Cr. 407.) It is now established that the arbitrators do not divest themselves of the power to proceed in the reference by nominating an umpire. Such appointment may be made either before or after their own investigation of the matter has commenced, or in any stage of their proceedings. In one case, the court of King’s bench expressed their opinion that it was the fairest way to do so in the first instance. (Roe v. Doe, 2 Term, 644; Harding v. Watts, 15 E. 556; Bac. Tit. Arb. 279.) In the case of Salkeld v. Slater, 12 Adol. & Ellis, -, it was said that it is important to have it understood that the umpire, as well as the arbitrators, ought to see and hear the witnesses. In Passmore v. Pettel, 4 Dallas, 271, the court say, where an umpire is to be chosen by referees, he stands in the same situation precisely as the referees themselves, both with respect to the powers to be exercised and the duties to be performed. From this principle it seems to follow that the umpire, when he takes upon himself that character, must proceed in the examination of the matter submitted to him in the same manner as the arbitrators are required to do. Then the umpire must be sworn before he can hear the evidence. [560] ¥e do not seo the ground on which the arbitrators proceeded in trebling the damages. There was nothing in the terms of the submission which authorized such a step. It is certainly the fairest way to have it expressly understood that the damages shall be trebled, if that is the agreement, by making it a part of the submission. But what we consider as conclusive on this subject is, that it does not appear from the matter submitted to arbitration that it was such a trespass as would have wai’ranted the court in trebling the damages had the cause not been referred. Reversed and remanded. Judge Richardson concurs.