sonal representatives of such of them as might be dead; and that where such apportionment should be reported due to several executors or partners, then that such apportionment be paid to one of them respectively.

An order was made in Challoner v. Marshall, 6 Ves. 118, upon a bill by creditors, that the residue of the money to arise by a sale of the estates of the testator, which had been directed, should be applied in payment to the several creditors named in the report, or to the personal representatives of such of them as were or might be deceased, of what had been or should be reported due. But the Court refused to direct payment, without a prerogative probate.

The decree, in directing an account, excludes specific bequests. If, on further directions, it appears that the fund, including the general legacies, is insufficient to pay the debts, the order should direct the specific legacies to abate, and refer it to the Master to apportion them.

Where a legacy is given upon a contingency, and a suit is instituted for the administration of the testator's estate, the Court does not direct a sum of stock belonging to the estate to be appropriated to pay the legacy, when the contingency happens, but directs the whole residue to be paid over to the residuary legatee, on his giving security to pay the legacy when due. The Vice Chancellor said, "The legatee being entitled to receive a certain sum in money, when the event of her marriage happens, her legacy is not capable of being secured by the present appropriation of any sum of stock." Webber v. Webber, 1 S. & S. 311; and see Long v. Hodges, 1 Jac. 585. In a recent MS. case, in which the author was concerned, a sum was set apart to answer the contingent legacy.

If the order on further directions directs the Master to do certain acts, either to enable the Court to come to a

final decision, or to ascertain the amounts to be paid by the accountant-general, a copy of the ordering part of the order is left with him, and he makes his report or certificate as the nature of the case may require. The order on further directions, and the report or certificate (or if no report or certificate is necessary, the order only, as soon as passed and entered), is taken to the accountant-general's, and the sales, transfers, payments, and carryings over are made according to the directions contained in the order.

If a party to whom money is reported due, and ordered to be paid, is unable personally to receive it, he may authorize any person by power of attorney. The power of attorney is prepared at the accountant-general's office.

The only two cases in which the accountant-general ever tries a fact, are, first, where under an order to pay interest to a single woman, he goes on to pay upon receiving proof of her marriage; the other, where he receives the probate as proof of the death of a party, and upon that pays the representative. In the case of the marriage, proof should be given by affidavit, that no settlement, or articles for settlement was made or entered into. In case of probate proof of death is required, and that the testator was the party in the cause, so as to identify the one with the other. Clayton v. Gresham, 10 Ves. 288.

The solicitor for the plaintiffs in a suit by simple contract creditors, is not entitled to withhold the production of the order and report to enable specialty creditors to receive their debts from the accountant-general's, where the fund is insufficient to pay them, and the plaintiffs claim a lien on the order and report, for extra costs beyond those allowed on taxation. Lechmere v. Brazier, 1 Russ. 73; but it has been decided that he is entitled to be paid 6s. 8d. for attending each creditor, or each set of creditors, with the order and report.

If the order does not provide for the payment of a debt to the representative, such personal representative should present a petition, that the sum reported due to ———, deceased, may be paid to him. The petition states shortly the order of reference to the Master, that the Master by his report had found. due to the creditor, and that he had in the schedule to his report certified that there was due to A. B. and should state the death of A. B., and whom he appointed executor. In support of the petition, either the probate of the will, or letters of administration must be produced, and an affidavit verifying the certificate of burial of the creditor, and identifying him as the same person named in the Master's report. The petition should not be served on any of the parties.

The order made is, that out of the sum of —l. cash remaining in the bank, the sum of certified by the Master's report, bearing date, to be due to A. B., for the apportionment in respect of his debt (in the said report and petition mentioned), be paid to the petitioner as the surviving executor of the said A. B. Any number of creditors may join in one petition.

A petition was presented by a number of creditors under an authority signed by them, and verified by affidavit, and an order was made for the payment of those sums to their solicitor, together with any sums which might afterwards become payable to them as their apportionment of future The accountant-general objected to pay sums above 10., and on the petition being again mentioned, the order was qualified with a proviso that the sums should not respectively exceed 107. Bradling v. Humble, 1 Jac. 48.1

assets.

Although where a gross sum is sought to be paid out, a petition is necessary, interest may be paid out on motion. Anon. 4 Madd. 228.

376

CHAPTER XXXVII.

AWARD.

AN award may be made pursuant to the statute of 9 & 10 Wm. III. c. 15; or an order may be obtained by the consent of the parties in the suit to refer to arbitration.

By 9 & 10 Wm. III. c. 15, it is enacted to the effect that all merchants and others, desiring to end any controversy (for which there is no remedy but by personal action or suit in equity), by arbitration, may agree that the submission of their suit to the award or umpirage of any persons shall be made a rule of any of His Majesty's court of records which the parties shall choose, and may insert such their agreement in their submission or the condition of the bond or promise; and upon producing an affidavit of such agreement, and upon reading and filing such affidavit in the court so chosen, the same may be entered of record in such court, and a rule of the court shall be thereupon made that the parties shall submit to, and finally be concluded by such arbitration or umpirage; and in case of disobedience thereto, the party neglecting or refusing shall be subject to all the penalties of contemning a rule of court, and process shall issue accordingly, which shall not be stopped, or delayed by any order, &c. of any other court, either of law or equity, unless it appears on oath that the arbitrators or umpires misbehaved themselves, and that such award was corruptly and unduly obtained.

And it is provided by the second section of the said act, that any arbitration or umpirage, procured by corruption or

undue means, shall be void, and set aside by any court of law or equity, so as such corruption or undue practice be complained of in the court where the rule is made for such arbitration before the last day of the next term after such arbitration is made and published to the parties.

A parol submission to arbitration is not within the statute: the word "insert" infuses into that submission something written. -v. Mills, 17 Ves. 419. A reference under the statute may be made by the parties mutually executing arbitration bonds, or by their entering into a written agreement to refer to arbitration. v. Mills, 17 Ves. 419. If done by agreement, it should contain a clause that the submission be made a rule of one of the courts of record. If by arbitration bonds, a condition to the same effect should be inserted.

In 2 Equity Cases, Ab. 91,* the court of law refused to receive any complaint to set aside an award made under the act, until the submission had been made a rule of court, and held that a consent in the submission bond to make the award a rule of court, instead of the submission, would not warrant their interposition.

Although in Spettigue v. Carpenter, 3 P. W. 361, it was considered that after an award had been made it was too late to confirm the submission, so as to make it good within the act, yet subsequent cases have decided it is not material whether the submission be made a rule of court before or after the award. Pownall v. King, 6 Ves. 10. Featherstone v. Cooper, 9 Ves. 67. In Smith v. Symes, 5 Madd. 74, the submission was made a rule of Court after the award.

Any of the parties may, pursuant to the agreement, or the condition in the bond, apply to any court of record to

* See the details of this case, 1 T. & R. 131.