the one before us. The case was referred by a rule of court to five persons, on whose award or the award of a majority of them judgment was to be entered. The report returned to the court showed that four of the referees and both parties met, and the parties agreed to substitute another person in lieu of an absent referee named in the rule. This agreement was signed by the parties and produced in court. The award was signed by the four referees, who had been named in the rule, and by the substitute referee. The court was of opinion, that this award was good, and that judgment might be rendered upon it. The president said: "There is a majority without the absent referee; that is enough. The award would be good if the new name was not there. Shall its being there by the consent of the parties make it bad?"

So in Bemus v. Clark, 29 Pa., the court speaking of the substitution of an arbitrator at the time of the trial of the case before the arbitrators say: "We do not scan the report of arbitrators in the same way we do the record of the proceedings of the court; for the law does not require them to report anything but their decision; and they are a mere transient tribunal, not expected to be skilled in the strictness of forms. We presume everything to have been regularly done by them, when it does not appear to be irregular; and even if it appear irregular, we presume the consent of parties if they were present.

It is true that it was held in Woodbury v. Proctor, 9 Gray 18, that "Upon a reference by rule of court the award must be made by the arbitrators named in the rule; and even if the parties by writing endorsed on the rule substitute an arbitrator in the place of one of those named, and waive all exceptions, no judgment can be rendered on the award." See also Layell v. Houghton, 32 Vt. 579. There is however an apparent difference between the Virginia case and the Pennsylvania case and the case now before us in this: that in the Virginia and the first Pennsylvania case the parties themselves signed the written agreement, whereby another arbitrator was added to those named in the rule, while in the case before us this addition was made by a written agreement signed only by the counsel of the parties. But this difference is more apparent than real. For the answer, which was re

turned to the court, was signed by the original arbitrators named in the rule, and on its face stated, that "the parties to said suit afterwards, to-wit, on the 31st day of August, 1881, met with their attorneys and changed said submission by actual agreement by adding the name of V. A. Dunbar as a third arbitrator." So that though the memorandum of this agreement was signed only by the counsel of the parties, yet the agreement itself was made by the parties, though they did not sign the memorandum in writing of this their oral agreement. Now the original submission in the case before us, which was made by a rule, was a submission made by the parties orally and by no bond or agreement made or signed by them, the only memorandum of it being signed by their counsel and not referred to in the order of reference. This being the case, if it could be altered by an agreement signed by the parties adding a third arbitrator, as it could by the Virginia cases, then surely it might be altered by an agreement made by the parties in the same manner with the original agreement, that is, by an oral agreement of the parties and a memorandum of it made and signed by their counsel. See as supporting this position Evileth v. Chan et al, 17 Mass. 460. As a still stronger case showing the liberality of the courts in enforcing awards, which have been rendered by arbitrators, one of whom has been added by the oral agreement of parties at the time of trial, though the original agreement was in writing and signed by the parties, I may refer to Blanchard v. Murray, 15 Vt. 548. The syllabus of this case is: "In the case of a written submission to three, and in case one of them could not be procured, to a fourth-held that an award made by the four in pursuance of an agreement of parties on the day of trial was good."

The case shows that this addition of the fourth arbitrator on the day of trial was made by an oral agreement. But I will say, that where in other cases, as is claimed, the case has been submitted to arbitrators by an order of the court made by consent of counsel only, it seems to me the counsel by a written agreement at the time of the trial would have a right to add another arbitrator. For though counsel cannot as such without special authority submit a case to

arbitration in pais, yet they can do it in court; and if once done, they have at least as much discretion at the trial of the case as counsel to make arrangements about the trial, as they would have on a trial before a jury in court; and they can by consent try a case before less than twelve jurors. There seems to me a marked difference between holding that counsel as such without the consent of their client can submit a case before suit brought or after suit brought by an agreement in pais, and holding that, the case having been regularly and properly submitted to arbitrators by an order of the court, on the trial of it before arbitrators the counsel as such may make an agreement to add to or subtract from the number of arbitrators, who are to try the case.

There is still another ground, which, it seems to me, ought to have weight in reaching a conclusion in this case. The case was submitted by the order of the court to two named arbitrators, and in case they should disagree, then to the determination of some other person whom they may choose, as umpire. It has been decided in Reson v. Berry, 4 Rand, 275, that where a submission is made of all matters in difference between two parties in a pending suit to two arbitrators and such umpire as they may choose, their award to be made the judgment of the court; and the arbitrators and umpire act together and make a joint award, such award will be good. This being law, as V. B. Dunbar could have been chosen as an umpire by the other arbitrators named in the rule, and could have set with them, as he did, and signed the reports jointly with them, and in short could have done exactly what he did do, are the actions of those arbitrators and umpire to be treated as a nullity, because counsel in their agreement choose to call Dunbar a third arbitrator instead of an umpire, and he chooses to sign his name as an arbitrator and not as an umpire? It does seem to me, that this would be applying to arbitrators a degree of technicality not justified by the liberal spirit now shown to them.

For these reasons I think the circuit court should have entered up a judgment on the award in this case, as it did, unless the third and fourth exceptions to the award can be sustained. The first of these is, that V. A. Dunbar was an important witness for the plaintiff below and testified in

favor of the plaintiff below and then rendered a decision on his own testimony, and the fact that he was such a witness. was unknown, when the consent was given to his sitting as an arbitrator. Whereof the counsel for the defendant below makes affidavit, that when he consented that Dunbar should be added as an arbitrator, he was not aware that he was an important witness for the plaintiff, and that the award was largely due to his testimony. But before this affidavit had been made, Dunbar had made an affidavit, that when he was being sworn as an arbitrator by the justice, he was asked by him, whether he knew any thing about the matter submitted to the arbitrators, and his answer thereto showed that he did not, and all he did know about the business of the parties. was subsequent to and outside of the matters in controversy in this suit, and they were not considered in making up the award. He has no recollection of being sworn as a witness before the arbitrators. From this evidence it seems to me there was no improper behavior by Dunbar as an arbitrator. In reaching this conclusion I have taken his affidavit as stating the facts rather than that of the defendant's counsel. It Dunbar did give any important testimony before the arbitrators, which materially affected their award, he should have been proven to have done so by them, and in the absence of any statement from them we can not set aside their award because of any supposed misconduct on the part of the arbitrator, Dunbar. If he was guilty of any misconduct, the plaintiff in error has failed to prove it by any satisfactory evidence.

There is nothing in the exception to the award, that the record does not show that a bill of particulars was filed with the declaration. The declaration may have set out the plaintiff's claim in such detail as to render a bill of particulars entirely unnecessary. This declaration is not copied in the record, it having been lost, or it may be, that, as I suppose was the case, all the particulars of the plaintiff's claim were produced before the arbitrators. The award on its face refers to the particulars of the plaintiff's claim.

The judgment of the circuit court must be affirmed; and the defendant in error must recover of the plaintiff in error his costs in this Court expended and damages according to law. AFFIRMED.

WHEELING.

REILLY V. OGLEBAY.

Submitted June 5, 1884-Decided. Nov. 15, 1884.

1. What purported to be a notice calling a meeting of the stockholders of a corporation held to be insufficient; and all the proceedings had at the meeting thus called declared invalid.

2. No authority existing in a number of persons, such as the stockholders of a corporation, can be rightfully exercised, in the absence of any member of such body, unless all have had reasonable notice and an opportunity to be present.

3. A party holding a fiduciary relation to trust-property cannot become the purchaser of such property, either directly or indirectly; and if he does the sale is voidable and may be set aside at the mere pleasure of the beneficiaries, although the price may have been adequate and the purchaser gained no advantage.

4. Under the circumstances presented by this cause, this rule is held to apply to a purchase of corporate property by or for the benefit of stockholders of a corporation, of which there was no board of directors and the sale was ordered by the stockholders in general meeting.

SNYDER, JUDGE, furnishes the following statement of the

case:

The Northwestern Virginia Agricultural Society became a corporation of this State by act of the legislature in 1866, and in 1871, it was and still is the owner of about twentyfive acres of land, known as the "Fair-Grounds," on Wheeling Island in the city of Wheeling, Ohio county. The second section of the charter declares that, "The only purpose and object of said corporation shall be to advance and improve the condition of agriculture, horticulture, floriculture, stock and domestic animals, and the manufacturing, mechanical and mining arts, with such additional and other objects as may be advantageously connected therewith."-Acts 1866, ch. 94.

The said land was for several years used by the corporation as a place for holding annual fairs and carrying on the business provided for in the charter, but for a number of