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CHAP. II.

Executors

and trustees.

that a corporation, unless otherwise provided by statute, is not bound by any contract not under its common seal. Therefore a submission to reference by a corporation should either be under the common seal of the corporation or be entered into in the form and manner directed by the statute which empowers the corporation to contract in some other way.

By the Trustee Act, 1893 (51 & 52 Vict. c. 59), s. 21, it is provided that an executor, or administrator, or two or more trustees acting together, or a sole acting trustee, where, by the instrument, if any, creating the trust, a sole trustee is authorized to execute the trusts and powers thereof, may, if and as he or they may think fit, submit to arbitration, or otherwise settle, any debt, account, claim, or thing whatever relating to the testator's or intestate's estate or to the trust, and for that purpose may enter into, give, execute, and do such agreements, instruments, releases, and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing so done by him or them in good faith. The power applies only if and so far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument, and to the provisions therein contained. The section applies to executorships, administratorships, and trusts constituted or created either before or after the commencement of the Act.

A submission to arbitration of a debt alleged to be due to the deceased is not in itself an admission by the executor or administrator of assets (Pearson v. Henry, 5 T. R. 6); though a submission of matters in difference between the deceased and another, without a protest against the reference being taken as an admission of assets, will amount to such an admission, and the executor will be bound to pay any sum awarded. (Robson

V.

9

2 Rose, 50; Barry v. Rush, 1 T. R. 691; Riddell v. Sutton, 5 Bing. 200.) He should therefore stipulate against the reference being taken as an admission of assets sufficient to pay what may be the amount of the award. (Worthington v. Barlow, 7 T. R. 453; Love v. Honeybourne, 4 D. & R. 814; Re Joseph and Webster, 1 R. & M. 496.)

It has been held that trustees referring matters connected with their trust to arbitration do not thereby make themselves personally liable. (Davies v. Ridge, 3 Esp. 101; Bristow v. Binns, 3 D. & R. 184.) The proposition is, however, too broad, and the question of liability should be expressly excluded by the submission. (See Robson v., supra; Re Wansborough, 2 Chitt. 40.)

CHAP. II.

The committee of the estate of a lunatic may, with Lunatics. the permission of the judge in lunacy, refer the lunatic's interests to arbitration.

A bankrupt cannot submit to arbitration so as to affect Bankrupts. his estate, but his trustee, with the consent of the committee of inspection, may. (46 & 47 Vict. c. 52, s. 57, and 53 & 54 Vict. c. 71, s. 21.) If the submission is made by the trustee without the necessary consent it will not bind the bankrupt's estate, but the trustee will be personally liable under the award. (Ex parte Wyld, 30 L. J., Bank. 10; 2 De G., F. & J. 642.) And an agreement by the trustee to submit to arbitration will be deemed an admission of assets to answer the result unless the contrary is expressly provided. (Robson v. 2 Rose, 50.)

Though he cannot make a submission binding upon his estate, the submission of a bankrupt is not void, but it will be binding on him personally, and if costs are awarded against him, he may be made to pay them. (Re Milnes and Robertson, 24 L. J., C. P. 29; 15 C. B. 451.)

CHAP. II.

Agents.

Assignee with power of attorney.

Salvage agreements.

An agent duly authorized may bind his principal by a submission. (Shelf v. Bailey, Com. 183; Adams v. Statham, 2 Show. 61.) But the agent should make his submission in the name of the principal, otherwise he, and not the principal, will be bound, notwithstanding he may not have any interest in the matter in dispute. (Bacon v. Dubarry, 1 Ld. Raym. 246.) As the validity of a submission by an agent depends upon the sufficiency of his authorization, the latter should be carefully attended to. If the submission is under seal, the authorization should be in the same manner. (Steiglitz v. Egginton, 1 Holt, N. P. C. 141; Harrison v. Jackson, 7 T. R. 207.)

Sometimes an authority to an agent to refer arises out of his employment, as in the case of an underwriter (Goodson v. Brooke, 4 Camp. 163), or of a consignee of goods. (Curtis v. Barclay, 5 B. & C. 141.) So in the case of an assignee of a contract to do certain works, with a power of attorney to take proceedings in the name of the assignor (Hancock v. Reid, 21 L. J., Q. B. 78) ; and of an assignee of debts with a power of attorney to receive and compound for the same. (Banfill v. Leigh, 8 T. R. 571.) And a power of attorney to A. to act in the dissolution of a partnership, with authority to appoint any other person as he might see fit, was held to give A. power to submit accounts to arbitration. (Henley v. Soper, 8 B. & C. 16; 2 M. & R. 155.)

An agent authorized to refer has the same powers in the conduct of the reference as his principal would have, and may bind his principal by waiving any objections to irregularities in the proceedings. (Hamilton v. Bankin, 19 L. J., Ch. 307; 3 De G. & S. 782; Backhouse v. Taylor, 20 L. J., Q. B. 233.)

It is questionable whether the master of a ship has authority to bind the owners to arbitration in a salvage agreement. (Re City of Calcutta, 79 L. T. 517.) An

agreement for arbitration between the owner of a ship and an associated insurance club in respect of the amount payable for salvage services is not binding on the master and crew of a salving ship. (The Margery [1902] Prob. 157.)

CHAP. II.

The solicitor in an action (Buckle v. Roach, 1 Chitt. Solicitors. 193; Cayhill v. Fitzgerald, 1 Wils. 28, 58), or his town agent (Griffiths v. Williams, 1 T. R. 710), but not his confidential clerk (Greenwood v. Titterington, 9 A. & E. 699), has power to refer, and can bind his client (Paull v. Paull, 2 C. & M. 235; R. v. Hill, 7 Price, 636) without any express authorization (Thomas v. Hewes, 2 C. & M. 519; Adams v. Bankart, 1 C. M. & R. 681; Ex parte Wenham, 21 W. R. 104; Pristwick v. Poley, 34 L. J., C. P. 189), and even when the client has expressly desired him not to refer (Filmer v. Delber, 3 Taunt. 486; Smith v. Troup, 7 C. B. 757; 18 L. J., C. P. 209); and if by referring the solicitor exceed his actual authority, the remedy of the client is against him, but he is still bound by the award. It has been held that a solicitor may also refer together with the cause all matters in difference. (Dowse v. Coxe, 3 Bing. 20.) He can also consent to an enlargement of time. (R. v. Hill, 7 Price, 636). If a solicitor appear for a corporation with the knowledge of the directors he can bind the corporation by an agreement to refer without being authorized to appear by any authority under seal. (Faviell v. Eastern Counties Rail. Co., 2 Ex. 344; 17 L. J., Ex. 297.) A solicitor has no power by a reference to arbitration to bind infant parties suing by their next friend. v. Dowse, 6 B. & C. 255.)

(Biddell

Though the authority of counsel to refer is a point not Counsel. free from doubt, and the opinions of the judges have not always been concurrent, it seems that in general a reference by the consent of counsel in a cause will be binding upon the client (Furnival v. Bogle, 4 Russ.

CHAP. II.

Persons empowered by statute.

142; Swinfen v. Swinfen, 25 L. J., C. P. 303; 18 C. B. 485; Chambers v. Mason, 28 L. J., C. P. 10; Ex parte Wenham, 21 W. R. 104; Strauss v. Francis, 35 L. J., Q. B. 133; L. R., 1 Q. B. 379) ; particularly if the client is present and does not repudiate the authority. (Rumsey v. King, 33 L. T. 728; Holt v. Jesse, 24 W. R. 879.) But he has no authority over matters collateral to the action. (Strauss v. Francis, supra; Swinfen v. Lord Chelmsford, 29 L. J., Ex. 382.) Nor has counsel any authority to refer an action against the wishes of his client or upon terms different from those which his client has authorized. (Neale v. Gordon Lennox [1902] A. C. 465.)

Persons incapable of referring to arbitration at common law are often enabled to do so by statute. The most important of the enabling statutes is the L. C. C. Act, 1845 (8 & 9 Vict. c. 18), by virtue of which persons. under disability, or possessing only limited interests in land affected by public undertakings, are empowered to submit to arbitration questions of compensation for the purchase in of, or for damage done to such land.

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