Counsel seem to have equal authority in Scotland. On PART I. CH. II. S. 2. Power of the trial of two cross actions in the Scotch courts, the counsel had, at the suggestion of the judge, agreed to refer counsel in the them, and had subscribed a minute of judicial reference Scotch courts. referring them to A. B., or failing him, to any arbitrator to be named by the Lord President. A party, sole plaintiff in one and sole defendant in the other action, in the course of the day protested against the reference, and moved the court to discharge it, alleging that he was not aware of the terms. of it and was taken by surprise, adding (what was the fact), that A. B. declined the reference. But the Lord President and lords of first division, before whom the matter was heard, admitted the reference, and appointed another arbitrator in the place of A. B. In the course of the same cause, however, an order made by the consent of counsel only was rescinded. For after an award was made the matter was brought by appeal before the House of Lords. On the hearing of the appeals, they were, at the suggestion of the lords present, withdrawn upon terms consented to by the counsel of the parties, and embodied in an order of the House. That order was rescinded upon petition of the appellant's agent, stating that he had not considered the terms of the compromise when the counsel consented to it, and the appeals were re-heard (x). an executor IV. Executors and administrators.]-An executor or admi- Submission by nistrator may, as such, submit to arbitration matters relating and administo the estate of the deceased, but (it is said) if the arbitrator trator. does not award as much as he would be entitled to at law, it will be a devastavit for the residue (y). bound to Where a testator had agreed to refer disputes, if they should Executor not arise, and died after disputes had arisen without appointing appoint an arbitrator, his executor is not bound to appoint an arbi- arbitrator. trator (z). executor per Entering into a submission relating to matters in difference When between the deceased and another without the executors protesting against the reference being taken as an admission of (z) Baillie v. Edinburgh Oil Gas Light Company, 3 C. & F. 639. (y) Bac. Ab. Arb. C.; Com. Dig. Admin. I. 1; Assets, C.; Anon. 3 Leon. 53; Went. Off. Ex. 61; Vin. Ab. Executors, G. a. 3. See (z) Percival, In re, 2 Times sonally liable. PART I. CH. II. S. 2. Reference: admission of assets. No direction to pay in the award. Direction to pay in the award. assets, will amount to such an admission, and if the award direct him to pay a sum, he will be bound personally, if the assets are insufficient, and will not be allowed to plead plene administravit to an action on the arbitration bond (a); for if he does not protest in the first instance that he has no assets, he will not be afterwards allowed to say so, because in that case the opposite party will have been put to the expense of an arbitration to no purpose (b). And an arbitration should be placed on the same footing as an action, in which, if an executor omit to plead that he is without assets, he cannot afterwards set up that ground of defence (c). It is often, therefore, said in terms that a submission by an executor or administrator is in itself an admission of assets (d). But perhaps, more strictly speaking, the submission does not so much amount to an absolute admission of assets as to a submission of the question whether there are assets or no (e). Thus, where the arbitrator awarded a sum to be due from the intestate's estate, but without saying by whom it was to be paid, the administrator was not held personally liable to the payment; and Lord Kenyon distinguished the case of Barry v. Rush, above quoted, by saying, "There the defendant submitted in broad terms to pay whatever should be awarded, and the arbitrator did award that he should pay a certain sum, whereas here the arbitrator has only ascertained the amount of the debt due from the intestate, but has not directed the defendant to pay it. It is impossible, then, to say that the arbitrator decided that the defendant had assets, and a submission to arbitration by an administrator is not of itself an admission of assets" (f). That case was followed by another in which the award directed the defendant, an administratrix, to pay the sum found due, and the same judge took the distinction, saying, "Here the arbitrator has awarded that the defendant, the administratrix, shall pay the plaintiff's demand. The submission to arbitration by the administratrix was a reference not only of the cause of action, but also of the question See (a) Robson v. › 2 Rose, 50; to pay; and P. III., ch. 6, s. 1, (b) Riddell v. Sutton, 5 Bing. 200. (c) Ibid. (d) Barry v. Rush, 1 T. R. 691. (e) Worthington v. Barlow, 7 T. R. 453. (f) Pearson v. Henry, 5 T. R. 6. whether or not the administratrix had assets. And as the arbitrator has awarded the defendant to pay the amount of the plaintiff's demand, it is equivalent to determining as between these parties that the administratrix had assets to pay this debt. The defendant, therefore, is concluded by this award, though it will not operate as an admission of assets in any other action to be brought by any other creditor" (g). PART I. CH. II. S. 2. assets. In a third case, where the arbitrator awarded a balance Direction to against the testator, and directed the executor to pay the pay out of amount out of the assets, Abbott, C.J., was of opinion that the latter part of the award did not conclude the question of assets, but left it open (). The practice in equity is in accordance with these decisions, and shows the effect of such a direction. pay out of An award directed an executor to pay a certain sum out Direction to of the assets which might be in his hands, or which might assets quando. be coming to him." He was also directed to pay the costs. The other party, relying on the fact that the submission was general, moved in the Court of Chancery for an attachment against the executor for non-payment of the sum and costs. This motion, on an affidavit of the executor that he had no assets, was dismissed with costs by the Vice-Chancellor. It was subsequently renewed before the Lord Chancellor (Lyndhurst), but on the additional affidavit that, since the previous application, assets exceeding the sum awarded had come to the executor's hands. And on this ground the Lord Chancellor, expressing his approval of the previous decision of the Vice-Chancellor, directed an attachment to issue (i). executor to costs. A personal representative is sometimes bound to pay Liability of costs. Thus, where an action by an administrator, with a count in the declaration containing a promise to himself as administrator, was referred, the costs to abide the event, and the arbitrator awarded that the plaintiff had no cause of action, it was held that the plaintiff was personally liable to costs (k). (g) Worthington v. Barlow, 7 T. R. 453. (h) Love v. Honeybourne, 4 D. & R. 814. (i) Joseph v. Webster, In re, 1 Russ. & M. 496. 46. (k) Spivy v. Webster, 2 Dowl. PART I. CH. II. S. 2. Submission by trustees. Liability. Submission by a committee of lunatic. Wife of a lunatic. Submission by public officer. v. Trustees.]-By the Conveyancing Act, 1881, trustees have power to submit to arbitration any debt, account, claim, or thing, but only if a contrary intention is not expressed (7). It is said that trustees, by submitting matters to arbitration, do not make themselves personally liable (m). But it is apprehended that must entirely depend upon the terms of the submission. In order to be safe, it is recommended that they should in express terms take care to exclude the construction of any personal liability, for there seems no reason why they should stand in any more favourable position than executors. VI. Committee of a lunatic.]—A committee of a lunatic may, with permission of the Court of Chancery, but not without, bind the lunatic by submitting his interests to arbitration (n). On the application of the committee, the court will, on a fitting case, refer it to the master to inquire whether it is proper and for the benefit of the lunatic's estate to refer the demands against his estate to arbitration, and upon what terms and conditions the reference should take place (0). Where there is no committee the wife of the lunatic has been held to have a sufficient implied authority to sue in his name for debts due to him (p). It does not appear whether the courts would hold that implied authority gave her power to refer either the action or the demand upon which it was founded. VII. Public officer.]-Where a public company are authorised by act of parliament to sue and be sued in the name of one of their public officers, who, however, is not to be personally answerable, the officer by consenting to refer a cause does not incur any personal responsibility. No attachment will be granted to enforce the award against him, though in many instances the company will be compelled to obey the award by a mandamus (q). (7) 44 & 45 Vict. c. 41, s. 37. (0) In re Baker, Shelford on Lunatics, 204. (p) Rock v. Slade, 7 Dowl. 22. (4) Corpe v. Glyn, 3 B. & Ad. 801. PART I. CH. II. S. 3. SECTION III. PERSONS EMPOWERED TO REFER BY A STATUTE. 1. Trustees of bankrupts.]—By the Bankruptcy Act, 1883, statute 46 & 47 Vict. c. 52, s. 57, the trustee may, with the permission of the committee of inspection, refer any dispute respecting the debts, claims, or liabilities of the bankrupt to arbitration. On a reference between assignees of a bankrupt under the old statute 12 & 13 Vict. c. 108, s. 153, respecting a claim against the bankrupt, the proper consents to the reference had not been obtained: the claimant, however, was held bound by the award made against him, though it was stated that the bankrupt's estate would not have been bound (»). Trustee of bankrupt. sent to the The repealed statute, the 6 G. IV. c. 16, s. 88, which Want of required the consent of creditors to a reference, did not, it is apprehended, disable the assignees from referring without reference. such consent, but only rendered them liable for the consequences to the creditors (»). admission of Like executors, assignees of bankrupts by entering into a Reference: submission would, unless they protested against the inference, sufficient be held to have admitted that they have sufficient funds in funds. hand to pay what the award directed (t). to bind his The bankrupt himself cannot make a valid submission so Bankrupt no as to affect his estate. An award made on a submission by power to refer a bankrupt was in one case held binding on his assignee, but estate. that decision was reversed in the House of Lords (u). And when an award made on a submission between a creditor and a bankrupt, after an act of bankruptcy, was received by the commissioners as conclusive evidence of the amount of the debt, the Lord Chancellor directed the proof of the debt to be expunged, and that an inquiry into the amount should be made before the commissioners (r). |