(l) Elmendorf v. Harris, 23 Wend. 628; Peters v. Newkirk, 6 Cowen, 108.

(m) Miller v. Kennedy, 3 Rand. 2. Notice to sureties on the submission bond is not necessary. Farmer v. Stewart, 2 N. H. 97. In Ranney v. Edwards, 17 Conn. 309, A and B having unsettled accounts between them, submitted such accounts to the arbitrament of C and D; and in case they should not agree, they were authorized to select a third person, who, either individually, or in conjunction with the other two, should determine the cause. C and D, after hearing the parties, and examining their books and accounts, were unable to agree upon a part of the matter in controversy; and thereupon they selected E as a third person to act with them in making the award. C and D then stated to E the claims, accounts, and evidence of the parties, relative to the matters about which they disagreed; after which C, D, and E made their award in favor of B. A and B had no notice of the appointment of E, until after the publication of the award; nor had they, or either of them, any hearing before the arbitrators, after such appointment; but C and D in omitting to give such notice, and in making their statement to E, acted under a sense of duty, and were not guilty of any fraud, concealment, or partiality. On a bill in chancery, brought by A against B, to have the award set aside, it was held, Church, J., dissenting, that no sufficient cause was shown for such an interference, and the bill was dismissed. And semble that where the submission is to two arbitrators, with power, in case of disagreement, to select a third person to act conjointly with them, the necessity of a rehearing, in the absence of any express request by one or both of the parties, is a matter resting in the sound discretion of the arbitrators; but if such request be made, it is their duty to comply with it. See further Rigden v. Martin, 6 Harris & J. 400; Emery v. Owings, 7 Gill, 488; Bullitt v. Muugrave, 3 Gill, 31; Cobb v. Wood, 32 Me. 455; McKinney v. Page, id 513. And the right to notice may be waived. Graham v. Graham, 9 Barr, 254.

(n) This seems not to be necessary, in cases where the value of property merely is to be determined. Eads v. Williams, 4 De G., M. & G 674, 81 Eng. L. & Eq. 203.

(o) So an examination of the books of one party in the absence of, and without notice to. the other party, and without proof of the correctness of the entries therein, will vitiate the award. Emery v. Owings, 7 Gill, 488. See also Knowlton v. Nickles, 29 Barb. 465.

1 A refusal by arbitrators to hear material witnesses is sufficient misconduct for the setting aside the award, though they think they have sufficient evidence without them, Halstead v. Seaman, 82 N. Y. 27.

ting them under oath or affirmation will not set aside an award, if the parties were present and made no objection. (p) A concealment by either of the parties of material circumstances, would avoid an award, for this would be fraud. So if the arbitrators, in case of disagreement, were authorized to choose an umpire, but drew lots which of them should choose him. ( q) But it was in one case held enough that each arbitrator named an umpire, and lots were drawn to decide which of these two should be taken, because it might be considered that both of these men were agreed upon. (r) And if an umpire be appointed by lot, or otherwise irregularly, if the parties agree to the appointment, and confirm it expressly or impliedly by attending before him, with a full knowledge of the manner of the appointment, this, it seems, covers the irregularity. (s) If a reference be to three arbitrators, the award of two, without consulting the third, although he be absent, has no force. (t)