should ultimately be a valid sale of the ship. It is not necessary, however, for us to decide that point, *because we think the second point urged by Mr. Brett affords an answer to the action. That [*786 point is this, that, in order to sustain his claim, the plaintiff must show that the liabilities in respect of which he seeks to charge the defendant were liabilities which accrued after the purchase of the ship from Thomas Chapman, and also liabilities which were chargeable on the present plaintiff as owner. As to the first head of this objection, viz. that the plaintiff could not be considered as the owner of the shares until the bill of sale had been executed, I should have felt inclined to decide against the defendant, because I think, in construing the agreement of the 30th of September, it may fairly be understood that the words "from the time of your purchase from Mr. Thomas Chapman," do not point to the time when the property in the shares passed to the plaintiff by a strict legal purchase and sale, but to the time when in ordinary parlance the purchaser may be said to have entered into a contract to purchase them. But, assuming that we may carry back the time of purchase to the 14th of July, there is nothing in that agreement,-which was in effect an agreement entered into by the plaintiff with the other creditors of Thomas Chapman,-which subjects the plaintiff to any liability at all in respect of supplies to the ship. That letter differs materially from the letter of the 4th of June, in which it is stipulated that all liabilities, debits, or assets after the ship's discharge at Swansea should belong to the plaintiff. That document is not at all connected with the letter of the 14th of July: on the contrary, there is evidence on the face of it that the two are wholly disconnected. The letter of the 4th of June appears to relate to a transaction to which the plaintiff and Thomas Chapman alone were parties; whereas, the transaction of the 14th of July is an arrangement not only between the plaintiff and *Thomas Chapman, but also between Thomas Chapman and all [*787 his creditors generally. The letter of the 14th of July, then, being silent on the subject, I do not see what there is to show any liability on the part of the plaintiff, either by the express terms of the contract, or by reason of his having become the owner of the shares. He did not in fact become such owner until the execution of the bill of sale by which these shares were conveyed to him, viz. on the 14th of September, which was long after the expenses in question were incurred. I therefore think the plaintiff failed to show a liability which the defendant had contracted to bear, and consequently the rule to enter a nonsuit must be made absolute.

WILLES, J.-I also am of opinion that the rule should be made absolute. Upon the first point it is unnecessary to pronounce any opinion. I will merely observe that nothing I have heard has satisfied me that the contract of the 14th of July was void by reason of the 55th section of the Merchant Shipping Act, 1854. As to the second point, I am satisfied that the letter of the 4th of June ought not to be taken into account against the defendant in construing the contract of the 30th of September. When the defendant signed that letter, he was not aware of the existence of the letter of the 4th of June, or of its contents. Further, it appears to me not to be satisfactorily made out that the transfer of the 14th of September was anything more than a fulfilment of the bargain of the 14th of July. Probably, however, the first point

is the more sound one to rely on. The letter of the 14th of July does not contemplate the plaintiff's being liable for the supplies in question. We must look, therefore, to the terms of the document of the 30th of September. The liabilities which the defendant thereby undertakes to

*pay are thus stated,-"all liabilities on the said shares from the

*788] time of your purchase from Mr. Thomas Chapman, for which you

are liable as owner in any way." Now, it is plain that the plaintiff was not liable "as owner" in any way in respect of the expenses sought to be recovered in this action. In construing this agreement, I do not think the plaintiff is at liberty to contend that the purchase is to date from the first bargaining for the transfer, though an argument might have been raised on that if the letter of the 4th of June could have been referred to. That letter, however, is out of the question: the plaintiff must stand upon the agreement of the 30th of September. The plaintiff can only recover in respect of expenses for which he was liable as owner: and the expenses for which he is now sought to be charged were not incurred when he was owner. It is to be regretted that Mr. Brett did not put his best ground first.

KEATING, J.-I also am of opinion that the defendant is entitled to have the rule made absolute to enter a nonsuit. As to the first point presented by Mr. Brett, I will merely observe that his argument failed to convince me that this claim might not have been sued upon if it had been sustained by the evidence. But it seems to me that the argument fails, for the reasons given by my Brothers Williams and Willes. It is clear upon the evidence, that by no possible construction of the memorandum or letter of the 30th of September could the ownership be carried back further than the 14th of July; and that memorandum imports no such liability as will sustain the plaintiff's claim. I therefore think the defendant is entitled to succeed.

Rule absolute for a nonsuit.

*789]

*In re ANN AMELIA VAN UFFORD and Another.

Jan. 29.

The court will enlarge the time for returning a special commission for taking the acknowledgment of a married woman abroad, where it has been duly executed, but its return has been unavoidably delayed until after the return day therein named.

The court allowed a commission, with the certificate of acknowledgment and affidavit of verification, to be received and filed, notwithstanding the omission of the month in the jurat of the affidavit.

A SPECIAL commission was issued on the 8th of February, 1860, directed to four commissioners at Batavia, in the island of Java, directing them, or any two of them, to take the acknowledgments of Ann Amelia, wife of Ivan Quarles Van Ufford, Anthonia Theodora, the wife of Theodoor Van Hecking Colenbrander, both residing in the island of Java,-returnable on the 1st of December, 1860. The acknowledg ments were duly taken by two of the commissioners at Batavia on the 13th of October, 1860: but, in the jurat of the affidavit verifying the certificate of acknowledgment in the case of Anthonia Theodora Colenbrander, a blank had inadvertently been left for the month: and the

commission was not returned to this country until the 19th of January, 1861.

C. Pollock, on a former day in this term, moved that the return of the commission be extended to the 31st of January instant, and that the commission, with the certificates of acknowledgment, and the affidavits respectively verifying the same, be received and filed among the records of the court, by the proper officer for that purpose, pursuant to the statute 3 & 4 W. 4, c. 74, notwithstanding the omission of the date (a) of the month in the jurat of the affidavit annexed to the certificate of the acknowledgment of Anthonia Theodora Colenbrander. He submitted, that, as the fixing the time for the return of the commission was the act of the court, and not the result of any requirement of the statute, it was competent to the court to extend it. [WILLIAMS, J.We have frequently allowed the time for *returning the commis[*790 sion to be enlarged.(b)] The jurat of the affidavit of the commissioner verifying the certificate of Anthonia Theodora Colenbrander is as follows,-"Sworn at Batavia on the 13th day of 1860." Both acknowledgments, however, appear to have been taken on the same day, and the jurats of the two affidavits will be found on inspection to have been evidently written at the same time.

WILLIAMS, J.-You are in effect asking us to hold, that, in every case, an affidavit may be received the jurat of which omits the month. ERLE, C. J.-I hardly think we are justified in receiving this as a valid document, the jurat being defective as to the month. I should, however, be desirous not to put the parties to the delay and expense of a new commission, provided the defect can be supplied by some explanatory affidavit showing that the requirements of the law have been really complied with,-that the affidavit must have been sworn on the 13th of October, 1860.

On a subsequent day, Pollock produced an affidavit stating, that, from the course of the post, and the postmarks on the envelope in which the documents were transmitted to this country, they must have been forwarded from Java previously to the 1st of December, 1860, and that they were received in London on the 19th of January, 1861; and that the deponent verily believed that the affidavit in question was *sworn on the 13th of October, 1860, and the month omitted by mistake and inadvertence.

PER CURIAM.-Let the documents be received. (a) Sic.

[*791 Fiat.(c)

(b) See In re Darling, 2 C. B. 347 (E. C. L. R. vol. 52), where Tindal, C. J., says that this part of the motion is "mere matter of form." See also In re Anna Booth, 5 C. B. N. S. 540 (E. C. L. R. vol. 94).

(c) See the next case. And see In re Fagan, 5 C. B. 436 (E. C. L. R. vol. 57); In re Worthington, 5 C. B. 511; In re Bingle, 15 C. B. 449 (E. C. L. R. vol. 80); and In re Tierney, 15 C. B. 761.

In re MARY ANN CARTER. Jan. 31.

The court will not enlarge the time for returning a special commission for taking the acknowledgment of a married woman abroad, where it has been executed after the return day named therein.

MILWARD moved to enlarge the time for returning a commission which C. B. N. S., VOL. IX.-29

had been directed to, amongst others, the judge of the circuit court of South Carolina, returnable on the 1st of October, 1860. In consequence of the absence of the judge on his official duties, and the death of another party, it was impossible to take the acknowledgment until after the expiration of the day named for the return of the commission. He referred to In re Anna Booth, 5 C. B. N. S. 540 (E. C. L. R. vol. 94), where it was held that the court will enlarge the time for returning a commission for taking the acknowledgment of a married woman, where, by reason of the remoteness of the residences of the parties, the time allowed has proved too short. The statute (3 & 4 W. 4, c. 74, s. 83) provides that the commission shall be made returnable "within such time, to be therein expressed, as the said court or judge shall think fit." [ERLE, C. J.-For anything that appears in the report of the case of *792] In re Anna Booth, the commission was executed in time.(a)] The time for the return is not the requirement of the statute. It is a mere direction contained in the rule of court: and the excuse here is ample, the absence of the commissioner on the performance of a public official duty. There is a further objection,

ERLE, C. J.-You have not got over the first objection. If commissioners are authorized to take an acknowledgment, and to return the commission on or before the 1st of October, and nothing is done by them until that day has gone by, their power is exhausted, and we could not afterwards enlarge the time for the return. We would willingly aid the parties if the practice of the court would warrant it: but we know of no precedent for it.

The rest of the court concurring,

Rule refused.(b)

(a) On reference to the office, it is found that the commission issued on the 21st of December, 1857, and was originally made returnable on the 1st of September, 1858,-that the time for returning it was by rule of court extended to the 10th of February, 1859,—and that the certificate of the taking of the acknowledgment was dated the 24th of May, 1858.

(b) In re Ann Tierney, 15 C. B. 761 (E. C. L. R. vol. 80), the court refused to enlarge the time for returning the commission, the time for the return having expired, although the acknowledgment had been taken within the time.

*793]

*In re MACQUEEN and THE NOTTINGHAM CALEDONIAN SOCIETY. Jan. 31.

It is competent to arbitrators under the Friendly Societies Act to decline to hear counsel. Semble, that all arbitrators have the like discretion.

A DISPUTE between a member of a friendly society called The Nottingham Caledonian Society and the managing members thereof respecting a claim on the sick fund, was, pursuant to the rules of the society, referred to three arbitrators. The claimant attended by counsel, but the arbitrators, though they expressed themselves willing to hear a speech, refused to allow the counsel to cross-examine the witnesses; whereupon the claimant withdrew, and the award was made in his absence, negativing his claim.

The claimant then applied to the judge of the Nottingham county court to set aside the award: but the judge refused to entertain the matter, saying he had no jurisdiction.

Yeatman now moved for a mandamus to compel the county court judge to hear the application. He referred to the 18 & 19 Vict. c. 63, s. 40,(a) and submitted that the award was bad on the face of it, and therefore not binding: The Queen v. Grant, 14 Q. B. 43 (E. C. L. R. vol. 68). [ERLE, C. J.-You say that the arbitrators' refusal to *hear counsel is an infringement of the claimant's right.] Yes: [*794 the right is recognised in Whatley v. Morland, 2 Dowl. P. C. 249. In the Income Tax Acts there is an express provision for excluding counsel from attending before assessors. [ERLE, C. J.-The right of advocates to attend before magistrates was very fully discussed in the case of Collier v. Hicks, 2 B. & Ad. 663 (E. C. L. R. vol. 22), where Parke, J., says: "No person has a right to act as an advocate without the leave of the court, which must of necessity have the power of regulating its own proceedings in all cases where they are not already regulated by ancient usage. In the superior courts, by ancient usage, persons of a particular class are allowed to practise as advocates, and they could not lawfully be prevented; but justices of the peace, who are not bound by such usage, may exercise their discretion whether they will allow any and what persons to act as advocates before them." An arbitration under the Friendly Societies Act is a mode of proceeding not regulated by ancient usage. The observations of Lord Wensleydale apply with even more force to the case of a private arbitrator sitting in a private room.] It certainly can hardly be charged as corruption in the arbitrator that he refused to hear counsel; but, nevertheless, it may be a very unfair thing, and such misconduct or miscarriage as to entitle the complainant to treat the award as a nullity. If the matter had occurred in one of the superior courts, he would have been entitled as a matter of course to be heard by counsel. [ERLE, C. J.-You say that the interests of justice require that arbitrators acting under the Friendly Societies Act should be compellable to hear the parties by counsel. That is the ground of the argument.] The substance of the complaint is, the refusal of the arbitrator to allow the complainant to be represented by counsel.

*ERLE, C. J.-This is an application for a rule in the nature of a mandamus to the judge of the county court of Notting[*795 ham, to hear a dispute between a member of a friendly society and the managing body and the ground for the application is, that the arbitrators have failed to determine the matter in dispute between the parties. The rules of the society contain a provision for the settlement of disputes by arbitration: and the 40th section of the 18 & 19 Vict. c. 63, enacts, that, where the rules provide for the determination of disputes by arbitration, the decision of the arbitrator shall be binding and conclusive on all parties, without appeal. A disputed claim having been referred, in accordance with the rules, the parties appeared before the

(a) Which enacts that "every dispute between any member or members of any society established under this act or any of the acts hereby repealed, or any person claiming through or under a member, or under the rules of such society, and the trustee, treasurer, or other officer, or the committee thereof, shall be decided in manner directed by the rules of such society, and the decision so made shall be binding and conclusive on all parties, without appeal : Provided, that, where the rules of any society established under any of the acts hereby repealed shall have directed disputes to be referred to justices, such disputes shall from and after the 1st of August, 1855, be referred to and decided by the county court, as hereinafter (s. 41) mentioned."