Other grounds of objection to an award, are irregularity of proceedings.1 Thus, a want of notice to the parties furnishes a ground of objection to the award. (k) And for this purpose the judgment of the arbitrators. Besides, under such a general submission, the reasonable rule seems to be, that the referees are not bound to award upon the mere dry principles of law applicable to the case before them. They may decide upon principles of equity and good conscience, and may make their award ex aequo et bono. We hold, in this respect, the doctrine of Lord Talbot in the South Sea Company v. Rumbstead, of Lord Thurlow in Knox v. Simonds, of the King's Bench in Ainslie v. Goff, and of the Common Pleas in Delver v. Barnes. If, therefore, under an unqualified submission, the referees, meaning to take upon themselves the whole responsibility, and not to refer it to the court, do decide differently from what the court would on a point of law, the award ought not to be set aside. If, however, the referees mean to decide according to law, and mistake, and refer it to the court to review their decision (as in all cases, where they specially state the principles on which they have acted, they are presumed to do), in such cases the court will set aside the award; for it is not the award which the referees meant to make, and they acted under a mistake. On the other hand, if knowing what the law is, they mean not to be bound by it, but to decide, what in equity and good conscience ought to be done between the parties, their award ought to be supported, although the whole proceedings should be apparent on the face of the award. And this, in our opinion, notwithstanding some contrariety, is the good sense to be extracted from the authorities. In Morgan v. Mather, Lord Loughborough lays it down as clear, that corruption, misbehavior, or excess of power, are the only grounds for setting aside awards; and although in the same case Mr. Commissioner Wilson says, that arbitrators cannot award contrary to law, because that is beyond their power, for the parties intend to submit to them only the legal consequences of their transactions and agreements; yet this reasoning is wholy unsatisfactory, not only from its begging the question, but from its being in direct opposition to very high authority. If, in the case before the court, the referees had made a general award, without any specification of the reasons of their decision, it would have deserved very grave consideration, whether we could, by collateral evidence, have examined into the existence of any errors of law. We are not prepared to say that such a course would be proper, unless the submission were restrained to that effect, or misbehavior were justly imputed to the referees. But here the referees have expressly laid the grounds of their decision before us, and have thereby submitted it for our consideration. This course is not much to be commended. Arbitrators may act with perfect equity between the parties, and yet may not always give good reasons for their decisions; and a disclosure of their reasons may often enable a party to take advantage of a slight mistake of law, which may have very little bearing on the merits. A special award, therefore, is very perilous; but when it is once before the court, it must stand or fall by its intrinsic correctness, tested by legal principles."

(k) Paschal v. Terry, Kelynge, 132; Rigden v. Martin, 6 Harris & J. 403; Falconer v. Montgomery, 4 Dall. 232; Lutz v. Linthicum, 8 ret. 178; Peters v. Newkirk, 6 Cowen. 103; Rivers v. Walker, 1 Dall. 81; Webber v. Ives, 1 Tyler, 441; Craig v. Hawkins, Hardin, 46. In Crowell v. Davis, 12 Met. 293, C. and D. agreed to submit all disputed claims between them to the final award of B., and to abide by his decision; and that if B. should decline to act alone as referee, he might select one or two other referees to act with him; and that if he should decline altogether, the matter should be referred to such person or persons as he should select. B. declined to act, and appointed G., H., and I. as referees, on the 23d of March, of which appointment C. and D. had immediate notice, and G., as chairman of said referees, called on D., and informed him that the referees had agreed to hear the parties in the afternoon of that day. D. told G. that he could not attend to the business on that day; and G. told D. that H. and I. could not attend at any other time, and that other referees would

1 Where one of three arbitrators had conversed with an outside party about the matter in controversy, under such circumstances as to probably influence his mind in making the award, the award was set aside, although the submission provided that an agreement of only two arbitrators should be necessary to make a binding award. Moshiei v. Shear, 102 Ill. 169.

* it is not necessary that the submission provide for giving such notice, because a right to notice springs from the agreement to submit. (l) But this rule is not of universal application; for there may be cases where all the facts have been agreed upon and made known to the arbitrators, and where the case does not depend upon the evidence, and no hearing is desired, and therefore notice would be unnecessary. (m)

Another instance of irregularity is the omission to examine witnesses, (n)1 or an examination of them when the parties were * not present, and their absence was for good cause; (o) but the examination of witnesses without puthave to be appointed in their place, to which D. made no objection or reply. On the next day, G. gave notice to D. that the hearing would be on the 27th of March, at a certain place. On the said 27th of March H. and I. were not present at the appointed place, and B., at the request of C. and G., appointed K. and L. as referees in their stead. G., K., and L. thereupon proceeded to hear C., in the absence of D., and made an award in C.'s favor. Held, that D. was not bound by the award. And see Peterson v. Ayre, 17 C. B. 724, 25 Eng. L. & Eq. 825; Oswald v. Gray, Bail Court, 1855, 29 Eng. L. & Eq. 85.