EADY J. 1910 BONNIN v. NEAME. into the arbitration; no doubt the arbitrator would take the sWINFEN view that the costs were not thereby to be increased, and would only allow one set of costs to the outgoing partner and his assigns." They declined the invitation. They are not bound to come into arbitration. Then it is said, "The order should be either to stay the action and let the arbitration proceed or make some order with regard to the way in which the account is to be taken." But the motion really is to stay the action, and it seems to me one sufficient answer to say that the plaintiffs are entitled to an account, and they are not parties to the arbitration; they would not be bound by any account taken in the arbitration behind their backs, and therefore that their own action for an account ought not to be stayed. There are other reasons why I think it is not right to stay this action. The principal points in dispute appear to be matters of law arising on the construction of the partnership articles. There is a question as to whether the continuing partners are in fact entitled to buy out the share of the outgoing partner or whether the whole of the assets should be realized. Then there is a very serious question as to the principle upon which, according to the true construction of the articles, the value of the goodwill is to be arrived at, and, when that value is arrived at, and whatever its value, the extent of the interest of the outgoing partner therein. There is power under s. 19 of the Arbitration Act for the Court or judge to require the arbitrators or umpire at any stage of the proceedings to state in the form of a special case any question of law arising; but the fact that there are these questions of law arising is an additional reason why the action should be allowed to proceed. Then there is a further reason which has considerable weight with me. I am asked to stay the proceedings and allow an arbitration to go on because it is said that each party has already appointed his arbitrator. The defendant Arthur Henry Bonnin, although he has appointed an arbitrator, appears separately by counsel and desires that the action should go on so far as he is concerned, stating that he appointed an arbitrator to protect himself, to prevent the plaintiffs' arbitrator proceeding as sole arbitrator or to prevent the plaintiffs appointing an EADY J. 1910 BONNIN NEAME. SWINFEN arbitrator, but that his desire is that the action should proceed. When I look to the arbitrators I find that the arbitrators on each side-it does not refer to one side only, but to both-are accountants who have taken a very active part in advocating the views of their respective clients, that is, the hostile parties to this litigation, the two continuing partners on the one side and the outgoing partner on the other. One of the continuing partners has made an affidavit in which he referred to a long letter of one of the arbitrators; this is a very long letter running into many foolscap pages, a long argumentative letter -I daresay a very proper letter for an advocate of one of the parties to write-in which he expresses a very clear and strong opinion as to the rights of one of the parties. Now in my judgment it is not right and proper that arbitrators should be appointed who are the advocates of the parties, who have been concerned in advocating the respective rights of their clients and who have already expressed themselves in strong terms with regard to the merits of their respective claims. Arbitrators should be persons who are prepared to exercise an independent judgment on the matter, free from partiality or bias, and not mere advocates of the parties. This is an additional factor in enabling me to arrive at the conclusion that it is not a case in which I ought to let the arbitration proceed and stay the plaintiffs' action. The result is that the motion fails. Leave to appeal was asked for and refused. Solicitors: Pothecary & Co.; Hores, Pattisson & Bathurst ; Richard F. Yeo. J. R. B. In re SANSOM AND NARBETH'S CONTRACT. [1909 S. 293.] Vendor and Purchaser-Conveyance-Plan. In simple cases a purchaser is entitled to have land conveyed to him by reference to a plan on his conveyance. VENDOR AND PURCHASER SUMMONS. On November 25, 1909, the vendors, as trustees for sale under Micah Sansom's will, put up certain freehold properties for sale by auction. Lot 2 was described as "The freehold dwelling house and shop No. 92, High Street, Eltham, situated at the corner of Elizabeth Terrace .. let to Mr. W. A. Narbeth, draper, on lease for 62 years from Lady Day 1894 at 40l. for the first 12 years, and for the remaining 50 years at 631. per annum." The particulars and The tenant Narbeth purchased lot 2. conditions did not contain or refer to any plan. The purchaser, having examined the abstract and accepted the title, prepared and submitted a draft conveyance containing a plan with dimensions marked thereon. The vendors' solicitors approved the draft, but struck out the reference to the plan, adding in the margin "The vendors do not agree to convey by plan. We have no measurements on our deeds." In reply to the purchaser's solicitors, who asked that the draft should stand as drawn, the vendors' solicitors wrote on December 29, 1909: "Our clients sold as trustees and they will only convey as trustees. We have already stated they will not convey by plan." The first sentence referred to a suggestion that the vendors should also convey as personal representatives. The purchaser's solicitors, however, engrossed and sent the conveyance to the vendors' solicitors with the plan thereon. On January 7, 1910, the vendors' solicitors replied: "We return the engrossment of the conveyance which our clients. decline to execute as you have put upon it a plan. We have twice informed you that they decline to convey by plan." VOL. I. 1910. 3 E 1 SWINFEN 1910 April 14, 20. SWINFEN EADY J. 1910 NARBETH'S On January 26, 1910, the purchaser issued this summons for a declaration that he was entitled to have the property "conveyed to him by reference to a plan." SANSOM AND The vendors' title was as follows. On May 4, 1887, No. 92, CONTRACT, High Street, Eltham, with other property, was conveyed to Edwin Sansom by a conveyance containing a plan. This conveyance was made the root of title. In re. On May 4, 1889, Edwin Sansom conveyed the entirety to Micah Sansom by a conveyance incorporating the 1887 plan by reference without reproduction. Micah Sansom having sold a portion of the property, devised (inter alia) 92, High Street, Eltham, to the vendors on trust for sale. The surrounding property had been considerably developed since 1887. After the summons was issued it was agreed that the purchaser should have a plan copied from the 1887 plan on the root of title. The purchaser was entitled to have all the title deeds on completion. As the plan was now agreed the summons was only brought on to determine the question of costs. Hon. Frank Russell, K.C., and Charles Church, for the purchaser. The vendors might have objected to any inaccuracy in the proposed plan, but they simply refused to convey by any plan at all. The question, therefore, is whether the purchaser was entitled as of right to a plan. The employment of a plan in aid of the description in the parcels is recommended in Davidson's Conveyancing, 5th ed. vol. i. pp. 63 to 66, and in Dart's Vendors and Purchasers, 7th ed. p. 554, and is recognized in Williams on Vendor and Purchaser, p. 558, but the question whether a purchaser is entitled to a plan as of right is not dealt with. It is, however, stated in Seaborne's Vendors and Purchasers, 7th ed. p. 406, that if the purchaser considers that the words used in the contract do not describe the land which he intended to purchase with sufficient distinctness "he has a right to frame a new description, either by means of a plan or otherwise, as he may deem most convenient." The passage in the text-book was taken from an opinion of Mr. Brickdale, and the view is stated to have been indorsed by EADY J. Farwell J. on May 1, 1902, in In re Sparrow and James' Contract SWINFEN [1902 S. No. 695]. (1) [The whole passage is set out in the present judgment.] 1910 NARBETH'S CONTRACT, In re. The same view is adopted in the Law Society's Digest, 1909, SANSOM AND par. 632, where the following note is added: "The Council have been supplied with a copy of a judgment of Mr. Justice Farwell, dated May 1, 1902, in an unreported case of In re Sparrow and James' Contract (1), in which the learned judge declared that the purchaser was entitled to insist upon a plan being placed on his conveyance, although no plan had been referred to in the contract. The description of the property contained in the contract on which the case was decided was unusually vague, and in the absence of the shorthand notes it is impossible to arrive at the reasons for the decision." See also pars. 648, 689. The purchaser's briefs, summons, order, and affidavits, with certain correspondence and a draft conveyance, in In re Sparrow & James' Contract (1) have been furnished by Messrs. Schultz & Co., but the particulars and conditions and other exhibits are not forthcoming. The property was a farm of about 220 acres in Grosmont, Monmouthshire. It appears from the correspondence that there was a plan on the particulars, but the vendor said there was a paragraph expressly guarding him from guaranteeing its accuracy. The purchaser, who was a solicitor, put this plan on the draft conveyance. The vendor's solicitors did not strike it out, but put in the words "by way of elucidation and not of warranty." The purchaser put a marginal note saying: "It is submitted that the plan does not elucidate anything, for the property is not sold by reference to boundaries which are stated, but by reference to a plan, schedule of areas, and occupation. The vendors should therefore take the trouble to ascertain if their own plan is correct or not." He also telephoned to inquire in what respect the plan was inaccurate, and the vendor's solicitors replied that it was believed to be accurate. A few days later the vendor's solicitors wrote saying: "Referring to your telephone communication, we have every (1) Unreported. |