arbitrators, and they have made an award. The complainant now insists that the decision of the arbitrators is void because they declined to allow him to be represented by counsel at the hearing; this, as it is contended, being such misconduct as to render the whole proceeding a nullity. There is nothing in the affidavit to raise a suspicion of partiality: the only charge is, that the arbitrators in their discretion thought fit to decide that the claimant had no right to introduce counsel. Mr. Yeatman puts it on the ground that it was an unfair exercise of discretion on the part of the arbitrators to refuse to allow the party the assistance of counsel; and he contends that the interests of justice require that the parties upon such an arbitration as this should be heard by counsel. I am of opinion that the argument fails. I am not aware of any authority for it; and none has been cited. As far as the interests of justice are concerned, I can foresee that there might be great failure of justice if counsel were allowed to interfere in all cases. The intention of the legislature is plainly expressed, that disputes of this

And

sort should be terminated speedily and finally: *and, so far from *796] the interests of justice being advanced by hearing counsel, I am inclined to think it would be allowing an unfair advantage if counsel were heard for the complainant, and imposing a hardship on the trustees if they were called upon to pay counsel out of the funds of the society, and might make the decision of the arbitrators to depend rather upon the relative merits of the counsel than upon the intrinsic merits of the case. I have already quoted the language of Parke, J., in Collier v. Hicks, where that learned judge lays down in wide terms, that, in the absence of ancient usage to the contrary, every tribunal has a discretion as to who shall be permitted to appear as advocates before it. I see the same point substantially came under the consideration of this court in Tillam v. Copp, 5 C. B. 211 (E. C. L. R. vol. 57), where the court refused to set aside the award, on the ground that the arbitrator had declined to permit a stranger to be present for the purpose of assisting the defendant's attorney with practical hints for the conduct of the defence, holding that an arbitrator has a general discretion as to the mode of conducting the inquiry before him. Maule, J., in that case observes," It is a very proper, and in some cases a very indispensable thing that arbitrators should, within proper limits, be allowed to deviate from the ordinary rules which govern courts of justice: for instance, an arbitrator may properly and conveniently take the examination of a sick or infirm person at his own house. It is, therefore, evidently quite fallacious to say that any suspicion of misconduct is to fix upon an arbitrator, because he has thought fit to depart from the ordinary course in conducting the proceeding before him." I am of opinion that the authorities as well as the reason of the thing are opposed to this application.

WILLIAMS, J.-I am entirely of the same opinion. *In point *797] of law, I think an arbitrator has a right to refuse to hear counsel, in his discretion. At the same time, there are undoubtedly many cases where an arbitrator, who is anxious to do his duty impartially, would be wrong in refusing a party the privilege of appearing by counsel. But, on this occasion, it is manifest that the arbitrator has exercised a sound discretion. Without, therefore, saying as a general rule

that an arbitrator may decline to hear counsel, it is enough to say that in the particular case the refusal was justified." The rest of the court concurring,

Rule refused.

TUPPER and Others v. FOULKES. Jan. 26.

A deed was executed by a son of the defendant, thus,-"John William Foulkes for Thomas Foulkes" (the defendant). In an action upon a covenant contained in the deed, the defendant pleaded non est factum. It was proved, that, the deed being shown to the defendant executed as above, he was asked whether his son had authority to execute it for him, and whether he adopted his son's act, to which the defendant answered in the affirmative:-Held, that this amounted to a re-delivery of the deed, and sustained the issue.

THIS was an action brought to recover from the defendant his proportion of certain expenses which had been incurred by the plaintiffs as trustees under a deed of arrangement entered into between one Richard Clements and his creditors, of whom the defendant was one.

The defendant pleaded, amongst other pleas, non est factum; and at the trial before Keating, J., at the last Summer Assizes at Bristol, the following facts appeared in evidence :

On the 21st of February, 1859, a meeting of the creditors of Clements was held for the purpose of *obtaining their assent to a deed

of arrangement. The defendant, who was a creditor, was not [*798 present; but his son who attended for him signed the deed thus,— "John William Foulkes for Thomas Foulkes." The deed contained, amongst other provisions, a clause whereby the creditors executing it covenanted to indemnify and save harmless the trustees against all expenses they might incur in the execution of the trust.

The solicitor for the trustees (Mr. Pinniger) proved that the defendant was present at a meeting of the creditors on the 25th of May, 1859, when he (the witness), showing him the deed, asked him if his son had authority from him to execute it, and whether he adopted such execution; that the defendant thereupon said that his son had authority to execute the deed for him, and that he adopted his signature; that, at this meeting, a report was read stating what the trustees had done in the execution of the trust, and the defendant was party to a resolution confirming that report; that the defendant had attended several subsequent meetings of the creditors, at which the steps taken by the trustees were discussed; and that generally he took an active part in the business.

On the part of the defendant, it was objected that he was entitled to a verdict on non est factum, inasmuch as there was no evidence that the son was authorized by deed to execute the trust-deed. For the plaintiffs, it was insisted that the defendant's adoption of the deed when shown to him was enough, and that, at all events, his conduct upon that occasion amounted to a re-delivery.

The learned judge, upon the authority of Doe d. The Birmingham Canal Company v. Bold, 11 Q. B. 127 (E. C. L. R. vol. 63), ruled that he would assume from the acknowledgment or admission of the defendant that the son was authorized by deed, and that the defendant's conduct *amounted to a re-delivery: and he directed the

[*799

jury accordingly, who thereupon returned a verdict for the plaintiffs

for 1951.

Collier, Q. C., in Michaelmas Term last, moved for a rule nisi for a new trial, on the ground "that the admission by the defendant was evidence to prove the plea of non est factum." (a) He submitted that, there being no proof of any legal authority in the son to execute the deed in the name of his father, his execution of it was no evidence against the father, and that the subsequent verbal ratification amounted to nothing. To make this the deed of the defendant, there must be affirmative proof that the son had authority by deed to execute: and, if there was authority given by deed, the execution must be in the name of the party giving the authority: not, as here, "John William Foulkes for Thomas Foulkes." In Taylor on Evidence, § 907, 3d edit., Vol. II., p. 811, the rule is thus laid down,-"In order to authorize an agent to execute a deed for his principal, the authority must be given by an instrument under seal (Berkeley v. Hardy, 5 B. & C. 355 (E. C. L. R. vol. 11), 8 D. & R. 102 (E. C. L. R. vol. 16), White v. Cuyler, 6 T. R. 176, Steiglitz v. Egginton, Holt, N. P. C. 141 (E. C. L. R. vol. 3), Williams v. Walsby, 4 Esp. 220, Callaghan v. Pepper, 2 Irish Eq. R. 399); and, as such an instrument or power of attorney transfers no interest, the agent or attorney being merely put thereby in the place of the principal, it follows that the deed must be executed by the agent in the name and as the act of him who gave the power (Hunter v. Parker, 7 M. & W. 322, 343,† per Parke, B.). Neither can a parol ratification *800] by the principal of a deed executed by his agent give validity *to the deed, when the agent has not been authorized to act by an instrument under seal (Hunter v. Parker); and it seems that evidence of the implied, if not of the express, recognition or adoption of the deed by the principal, will not, even as against him, raise a presumption that the agent was thus formally authorized to act, so as to dispense with the necessity of proving that fact:" Lord Gosford v. Robb, 8 Irish Law Rep. 217. Formerly, no admission of a party to a deed could dispense with the necessity of calling the attesting witness. The latest case on that subject is Whyman v. Garth, 8 Exch. 803,† where it was held, that the 14 & 15 Vict. c. 99, s. 2, which renders the parties to a suit competent and compellable to give evidence, has not altered the rule of law which requires a written instrument to be proved by the attesting witness; and where Pollock, C. B., in delivering the considered judgment of the court, says, "We think that the rule of law requiring proof by the subscribing witness is so inflexible, clear, and universal, that it cannot be set aside by any reasoning, however cogent." And, though that is now changed, (b) still the rule as to execution remains unchanged. The language of Parke, B., in Hunter v. Parker, is express. "Neither a parol ratification," says that learned judge, "nor a parol authority, could have the effect of giving power to the auctioneer to execute a deed for the plaintiff, or to make the bill of sale his deed: such a power could be given by an instrument under seal only; and must be executed in the name and as the act and deed of him who gave

(a) Substantially, for misdirection or misreception of evidence.

(b) "It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite; and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto :" 17 & 18 Vict. c. 125, s. 26.

the power; for, a power of attorney transfers no interest; *the [*801 attorney is merely thereby put in place of the principal, and represents his person:" and his own act could convey nothing: Combe's Case, 9 Co. Rep. 75, 77. In Lord Gosford v. Robb, 8 Irish Law Rep. 217, in ejectment on the title, the land-agent of a landlord, under his directions, served a notice to quit, on which the ejectment was brought. The tenant at the trial produced a lease signed by the agent, and under which he had been registered as a freeholder, and a certificate of his registry thereunder, kept in the landlord's office: and it was held that the tenant was bound to prove that the agent had a power of attorney to execute leases from the landlord, and that such alleged adoption by the landlord of the lease did not dispense with the necessity of such proof, and that the judge was right in refusing to admit the lease in evidence. [WILLIAMS, J.-The delivery makes the deed. If we are to presume anything, we must presume that this deed was delivered as the act and deed of the defendant, the father. A good delivery is not vitiated by a bad signature.] It is true, you may by admissions get at the effect of the deed,-Slatterie v. Pooley, 6 M. & W. 664:† but that is a very different question from this. [ERLE, C. J.-Doe d. The Birmingham Canal Company v. Bold, 11 Q. B. 127 (E. C. L. R. vol. 63), is very like this case. There, on ejectment upon the demise of a corporation, it appeared from the defendant's admissions that he had taken the land by permission of H., a servant of the corporation, and that F., another servant of the corporation, had given him notice to deliver up possession. No lease nor notice nor appointment of F. or H. as agent under seal was produced: and it was held that the jury were rightly directed to find for the plaintiff if they thought that H. and F. were authorized by the company to act.] A rule nisi having been granted, *Montague Smith, Q. C., and Coleridge showed cause.-The ruling of the learned judge was perfectly correct. The alleged [*802 informality of the signature was disposed of on the motion; and the rule was granted only on the ground of absence of proof of authority in the son to execute the deed on behalf of his father. Upon every principle of law, it is submitted that the subsequent admission of the defendant was sufficient proof that the deed was duly executed. The defendant by his language and by his acts treated the deed as his deed. It could not be his deed unless duly executed. Every man is presumed to know the law; and every presumption will be made against the defendant under such circumstances. The case of Lord Gosford v. Robb, 8 Irish Law Rep. 217, does not bear out the proposition which is sought to be founded upon it. Doe d. The Birmingham Canal Company v. Bold, 11 Q. B. 127 (E. C. L. R. vol. 63), goes further than this case. Lord Denman, in giving judgment, says: "In this case there was evidence, in the nature of admission from the conduct of the defendant, that the secretary of the canal company, who created the tenancy at will, and the successor who determined it in 1831, had authority from the company but there was no direct evidence of authority under seal. The judge left it to the jury to say whether they inferred an authority, and did not tell them that an authority under seal was necessary. A motion has been made for a new trial for misdirection in this respect: but we are all of opinion that the rule should be refused. The jury were at liberty to infer any possible valid authority: and we cannot

assume that a canal company may not be incorporated by private act of parliament, and may not be empowered thereby to appoint an agent without an instrument under seal: see Rex v. Bigg, 3 P. Wms. 419,

424." [KEATING, J.-Suppose the son had signed *the deed *803] without the authority of his father, and the father had afterwards said, "I acknowledge this to be my deed, and deliver it as my deed," would not that do? The operative part of the ceremony is the delivery. WILLIAMS, J.-Signature is not essentially necessary to a deed. That was one of the grounds upon which we refused the rule on the other point. The essence is the delivery.]

Collier, Q. C., in support of his rule.-The execution of the deed by the defendant is directly put in issue upon the record. The evidence was, that the defendant's son, in the father's absence, signed the deed, not in the name of his father, but thus," John William Foulkes for Thomas Foulkes." It was then sought to prove the execution of the deed by the defendant's admission that "he authorized his son to execute the deed, and that he adopted it." It is submitted, upon the authorities cited on the motion, that there was no evidence to sustain the issue. In Berkeley v. Hardy, 5 B. & C. 355 (E. C. L. R. vol. 11), 8 D. & R. 102 (E. C. L. R. vol. 16), where an indenture was made between "A., for and on behalf of B., on the one part, and C. on the other part," A. being thereunto authorized by writing under B.'s hand, but not under seal, and A. executed the deed in his own name,-it was held that B. could not maintain covenant on the deed, although the covenants were expressed to be made by C. to and with B. Abbott, C. J., said: “I am not aware of any instance in which the court, upon the production of an instrument insufficient to support an action founded upon it, has presumed the existence of another deed which would be sufficient." In Abbott v. Plumbe, 1 Dougl. 216, in an action on a bond, proof of the acknowledgment of the obligor was held not to supersede the necessity of calling the subscribing witness. Admissions of a party that he executed a *deed are clearly not evidence that he did *804] execute it. [ERLE, C. J.-The reason why it was formerly held that the attesting witness must be called, was, that the parties had agreed that that should be the only mode of proving their execution of the instrument. KEATING, J.-Suppose the defendant, when the deed was shown to him by Pinniger, had merely said, "I adopt the deed, and now deliver it," would not that have been sufficient?] No. There must be actual delivery. If the defendant had been present, and saw his son deliver the deed, that might have done. [ERLE, C. J.-Does not an acknowledgment that the party is bound by the deed,-the deed being present, amount to a delivery? WILLIAMS, J.-"As a deed may be delivered by words without deeds, so may it also be delivered by deeds without words:" Sheppard's Touchstone, 8th edit. 58.] In Call v. Dunning, 4 East 53, it was held that the answer of the obligor of a bond to a bill filed for a discovery, in which he admitted the bond to have been executed by him, was only secondary evidence, and could not be received as evidence per se of the execution, without showing that due diligence had been used to discover who the subscribing witness was, who was alleged to be unknown. Here, the execution of the deed by the defendant is the very matter in issue. In Whyman v. Garth, 8 Exch. 803,† Pollock, C. B., says: "Here, on the pleadings, the de