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Mercantile Law (Scotland) Amendment Bill. tions and assurances, or by some person duly and Ireland, the Islands of Man, Guernsey, authorised by him or thein.
Jersey, Alderney, or Sark, and the islands ad. 5. No such guarantee, security, cautionary jacent to thein, or any of them, being part of obligation, representation, or assurance entered the dominions of her Majesty, and made payinto after the passing of this Act, shall con- able in or drawn upon any person resident in tinue to be binding on the granter of the same, any part of the said United Kingdom or islands, after a change shall have taken place in any shall be deemed to be an inland bill; but noone of the partners of a company to which the thing herein contained shall alter or affect the same has been granted or made, or of a com- stamp duty, if any, which but for tbis enactpany for the acts or intromissions of which the ment would be payable in respect of any such same has been granted or made, in so far as bill. any transactions subsequent to such change 11. Where any inland bill of exchange shall are concerned, without prejudice to the liability be presented for acceptance or payment, and of the granter for all transactions prior to the the same shall be dishonoured by not being date when such change took place : Unless the accepted or paid, or where any promissory intention of the parties that such guarantee, note shall be presented for payment, and dissecurity, cautionary obligation, representation, honoured by not being paid, it shall not be or assurance, shall continue to be hinding not necessary that a notarial protest shall be taken withstanding such change in the said compa- on such bill of exchange or promissory note in nies, or either of them, shall appear either by order to preserve recourse against the drawer express stipulation in writing, or by implica or indorser of such bill or promissory note retion from the nature of the firm or otherwise spectively; but it shall be sufficient to prore
6. Where any person shall, after the passing such presentment and dishonour, to the effect of this Act, become bound as cautioner for any of preserving recourse as aforesaid by other principal debtor, it shall not be necessary for competent evidence, either written or parole: the creditor to whom such cautionary obliga- Provided always, that nothing herein contained tion shall be granted, before calling on the shall be taken to affect the necessity for a nocautioner for payment of the debt to which tarial protest in order to entitle the bolder of such cautionary obligation refers, to discuss or any bill or note to proceed with summary dido diligence against the principal debtor, as ligence thereon. now required by law; but it shall be compe- 12. Where an inland bill of exchange shall tent to such creditor to proceed against the be presented for acceptance or payment, and principal debtor and the said cautioner, or such acceptance or payment shall be refused, against either of them, and to use all action or or where any promissory note shall be prediligence against both or either of them which sented for payment, and payment shall be is competent according to the Law of Scotland: refused, notice of the dishonour of such bill or Provided, that nothing herein contained shall promissory note by such refusal to accept or prevent any cautioner from stipulating in the pay shall, in order to entitle the holder to have instrument of caution that the creditor shall recourse to any other party, be given in the be bound before proceeding against him to same manner and within the same time as is discuss and do diligence against the principal required in the case of foreign bills by the Law debtor.
of Scotland. 7. Where two or more parties shall become 13, In all cases where any bill or note has bound as cautioners for any debtor any dis- been lost, stolen, or fraudulently obtained, the charge granted by the creditor in such debt or holder of such bill or note suing or doing diliobligation to any one of such cautioners with gence thereon shall be bound to prove that out the consent of the other cautioners, shall value was given by him for the same; but such be deemed and taken to be a discharge granted proof may be made by parol evidence. to all the cautioners.
14. When any bill of exchange or promissory As 10 Bills of Exchunge and Promissory Notes. dorsed after the period when such bill of ex
pote, shall after the passing of this Act, be in8. Where any bill of exchange or promis- change or promissory note became payable, the sory note shall be issued without date, it shall indorsee of such bill or note shall be deemned be competent to prove by parole evidence the to have taken the same subject to all objections true date at which such bill or note was issued: or exceptions to which the said bill or note was Provided always, that summary diligence shall subject in the hands of the indorser. not be competent on any bill or note issued
As to Carriers. without a date. 9. No acceptance of any bill of exchange, all carriers for hire of goods within Scotland
15. From and after the passing of this Act, whether
inland or foreign, made after the 31st shall be liable to make good to the owner of day of Dec. 1856, shall be sufficient to bind such goods ail losses arising from accidental any person except the same be made in writing fire while such goods were in the custody or on such bill (or if there be more than one part of such bill, on one of the said parts), and possession of such carriers. signed by the acceptor or some person duly
As to repairs of Ships. authorised by him.
16. In relation to the rights and remedies of 10. Every bill of exchange drawn in any persons having claims for repairs done to ships, part of the United Kingdom of Great Britain every port throughout the United Kingdom of
Married Women's Reversionary Interest Bill.–Review: Russell on Arbitration. 382 Great Britain and Ireland, the Islands of Man, NOTICES OF NEW BOOKS. Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them, being part of Treatise on the Power and Duty of an Arthe dominions of her Majesty shall be deemed á home port.
bitrator, and the Law of Submissions and
Awards; with an Appendix of Forms, and MARRIED WOMEN'S REVERSIONARY
of the Statutes relating to Arbitration.
By Francis Russell, Esq., M.A., BarINTEREST BILL.
rister-at-Law. Second Edition. London:
Stevens & Norton and II. Sweet. 1856. By this Bill it is proposed to enact
1. From and after the passing of this Act, it shall be lawful for every married woman by The Law relating to Arbitrations and deed to dispose of every future or reversionary Awards has greatly increased in importance interest, whether vested or contingent, of such since the passing of the Common Law Promarried woman, or her husband in her rigbt, cedure Act, 1854, and of several other rein any personal estate whatsoever, as fully and effectually as she could do if she were a feme
cent Statutes. The power conferred on the sole; and also to release and extinguish her Court or a Judge to direct an arbitration right or equity to a settlement out of any per- before trial has removed, to some extent, a sonal estate to which she, or her husband in grievance which previously existed, where her right, may he entitled in possession, save all the expenses of briefs for several counsel and except that no such disposition, release, or (one only being usually sufficient on a reextinguishment shall be valid unless the hus- terence), and the attendance of witnesses band concur in the deed by which the same was incurred, and then the Judge ordered shall be effected, nor upless the deed be ac
a reference. If an arbitration be the proper knowledged by her as hereinafter directed.
2. Every deed to be executed by a married course, it is preferable, both on account of woman for any of the purposes of this Act delay and expense, that it should take place shall be acknowledged by her, and be other in an early stage of the action. wise perfected, in the manner in and by the We are aware, however, that no small Act passed in the 3 & 4 Wm. 4, intituled “ An number both of suitors and solicitors have Act for the Abolition of Fines and Recoveries, had reason to dispute the justice or expediof Assurance," prescribed for the acknowledg.ency of compulsory references. In many of Assurance," prescribed for the acknowledg, cases one of the parties desires a public interests of married women in land; and all trial before a jury, and is not satisfied with and singular the clauses and provisions in the a private discussion in the arbitrator's room said Act concerning the disposition of lands and a decision given without any reason asby married women, including the provisions signed. There is still a class of suitors for dispensing with the concurrence of the who, like our “sturdy ancestors,” prefer a husbands of married women, in the cases in battle in open Court, and cannot understand the said Act mentioned, shall extend and be how the counsel, who have been paid their applicable to such interests in personal estate fees for a spirited contest before twelve as may be disposed of by virtue of this Act, as fully and effectually as if such interests were
men, are authorised either to assent to the interests in land.
proposition of a reference if it come from 3. Provided always, That the powers of dis- the Judge or themselves to suggest it. position given to a married woman by this Another set of suitors have no objection Act shall not interfere with any power which to a reference, but would prefer selecting independently of this Act may be vested in or their own arbitrators, instead of the Judge limited or reserved to her, so as to prevent her or the counsel nominating some learned cept so far as by any disposition made by her junior whose advancement they wish to under this Act she may be prevented from so promote. But supposing this questionable doing, in consequence of such power having nomination not to arise, then come the been suspended or extinguished by such dis- long delay and serious expense of numerous position.
meetings before the arbitrator, equal to or 4. Provided always, That the powers of far greater in duration than the conferences disposition hereby given to a married woman at Paris. By this grievance all parties, shall not enable her to dispose of any interest whether willingly or reluctantly assenting in personal estate which may have been settled to a reference, are frequently great sufferers. upon her by any settlement or agreement for
It sometimes happens, indeed, that an a settlement made on the occasion of her riage.
able arbitrator being chosen, and the parties 5. This Act shall not extend to Scotland. being willing to proceed forthwith, the evi
dence may be taken in one day and the discussion the next; but usually the meetings
Review : Russell on the Power and Duty of Arbitrators.' last only two or perhaps three hours, bel of arbitrator. 2. Over what matters the cause one or other of the counsel or the submission gives the arbitrator jurisdiction. arbitrator must attend an engagement else- 3. The duration of the arbitrator's authuwhere. No such delays can take place in rity. 4. The power and duty of the arbiCourt. The trial must proceed then and trator before making the award. 5. The there." But before good-natured arbitra- duty of the arbitrator in forming his award. tors, the practice is to accommodate their 6. His duty in awarding on the cause or learned friends without much regard to the suit referred. 7. His duty in awarding pecuniary interests or convenience of the costs. 8. What directions may be given parties. It has been suggested that arbi- in the award. 9. Award under the Lands' trators should be appointed who would Clauses' Consolidation Act. 10. The arbiproceed continuously, allowing of no delay, trator's duty when award referred back. unless the necessity of it were prored as 11. Personal interests of the arbitrator, on the postponement or adjournment of a remuneration, &c. trial occasioned by the absence of a material The Third Part comprises :- 1. Effect of witness, whose evidence could not reason- the award. 2. Its performance. 3. Award ably be anticipated as requisite or could not as a ground of action or defence at Lare. be earlier procured. If a remedy could be 4. The like in Equity. 5. Making the subfound for the evil complained of, a much missiou a rule of Court. 6. Enforcing the larger number of references would take place, award by attachment. 7. By proceedings delay would be avoided, expense saved, and under the Statute. 8. By proceedings in greater satisfaction would result.
the cause referred. 9. Setting aside an But we must now leave this professional Setting aside judgment. 12. Impeaching
award. 10. Referring an award back. 11. grievance and turn to the volume before us,-Mr. Russell's able Treatise on the
award in Equity. 13. Effect of failure of
reference. Power and Duty of an Arbitrator and the Law of Submissions and Awards.
The Appendix comprises forms of submisIn the preface to the present edition, the sions to reference ; of proceedings during Author refers to the important changes
the reference ; awards ; pleading$; and prowhich have been made in the Law of År- ceedings on the award. bitration by the second Common Law Pro
Mr. Russell has effected an improvement cedure Act, the several provisions of which in the mode of giving an Appendix of are noticed in their appropriate places. Statutes : after the first Arbitration Act of Some of these enactments, it is observable, 9 & 10 Wm. 3, c. 15, he has selected only relate to references agreed upon out of the particular sections of subsequent Acts Court, and to proceedings in Equity as well which relate to arbitrations. The subjects as Common Law.
of these Statutes are various, namely: The First Part of the work relates to the Expenses of Prisoners ; Masters and Worksubmission to reference, and treats,-1. Or men; Savings Banks; Ecclesiastical and what matters may be referred. 2. Who Collegiate Lands; Amendment of the Law may refer matters to arbitration, and herein (3 & 4 Wm. 4, c. 42, ss. 39-41); Conveyof the authority of Attorneys and Counsel. ance of Mails by Railways; Insolvents (1 3. How matters may be referred.
& 2 Vict. c. 110, s. 51; 7 & 8 Vict. c. The Second Part treats,-1. Of the office 96, s. 31); Joint-Stock Companies; Lands
taken for a public undertaking ; Railways; · Mr. Malcolm Kerr, in his edition of the Inclosure of Commons ; Small Debts (9 & Common Law Procedure Acts, observes, that 10 Vict. c. 95, s. 77); Public Health; the Common Law Commissioners, in their report, expressed an opinion that provisions for Metropolitan Sewers; Quarter Sessions ; securing, as far as practicable, a continuous Bankrupts (12 & 13 Vict. c. 106, ss. 153, process to the end of the arbitration, and an 154); Common Law Procedure (17 & 18 abolition of those frequent adjournments which Vict. c. 125, ss. 3, 5-17); Friendly Soare at present the bane of that mode of pro- cieties. By this method of adding to the ceeding, should be made. The only provision, volume only the essential sections, its bulk however, is one prescribing the making of the is not much increased ; and this example, award within three months (s.15). A reference, we trust, will be followed. If, however, an if made to a lawyer appointed by the parties, may author fully states the import of statutory nevertheless continue to be the tedious, expensive, and unsatisfactory proceeding which it provisions in the body of his work, we see has hitherto been, for the costs to be incurred no necessity for giving the enactments verin three months may easily be made to exceed batim in an Appendix. Every practitioner the value of the subject-matter in dispute." has the Statutes relating to the Law in some
Review : Russell on the Power and Duty of Arbitrators.
383 form or other, and ready access to the Sta- by which the arbitrator should be guided, tutes at large.
Mr. Russell observes thatIt will be seen from this brief analysis of " It has been said by Judges of great cethe contents of the work, that Mr. Russell lebrity that under a general reference of all has taken a very comprehensive view of this matters in difference tlie arbitrator is not condepartment of the Law, and has skilfully fined within the rules of law and equity, that arranged the materials of his volume. The he has greater latitude than the Courts of Law
in order to do complete justice between the details into which he has entered are class
parties, and that he may take all moral quesed under appropriate sub-divisions, and we tions into consideration in forming his judg, think he has well-nigh exhausted the sub- ment, and decide according to equity and good ject. He expresses a hope that there will conscience; for instance, that he may relieve be a General Arbitration Act, consolidating against a right which lies hard upon one party, and amending the Law, and providing for but which having been acquired legally and hardships which occur from defects in sub- without fraud, cannot be resisted in a Court of missions of reference, ensuring to the arbi- Justice.
“In one instance the Court of Queen's trator the possession of all requisite powers, Bench is said to have laid down the following and rendering unnecessary the practice of rule, that when arbitrators, knowing what inserting in every new Statute a fresh series the law is, or laying it entirely out of their of arbitration clauses.
consideration, make what they conceive, under It will not be expected that we should all circumstances, to be an equitable decision, give many examples of the Author's learn- it is no objection to the award that in some ing and research, but shall venture to extract particular point it is manifestly against law."
“But these and similar general observations a few passages from the section on “the moral qualities requisite in an arbitrator." must in general at least, it is humbly suggested,
be considered and explained by reference to Mr. Russell observes that
the matters in dispute in the particular case, “ It is hardly necessary to state, that in con- arbitrator power beyond law. Thus in the
showing the intention of the parties to give the ducting the reference the first duty of the arbitrator is to be incorrupt and impartial. If above rule, the arbitrators to whom the differ
case which gave rise to the expression of the there be any ground for imputing corruption,
ences respecting a testator's estate had been fraud, or partiality to him, the award cannot referred, awarded that they were of opinion stand. Though the Courts will rarely review that the intention of the testator was by his the bona fide exercise of the arbitrator's au- will to have disposed of his property in a par, thority, yet evidence of the merits will always ticular manner which they specified, and with be let in, so far as it may throw light upon his which they directed the parties to be satisfied. conduct with reference to the above imputa. This distribution was clearly contrary to that tions, but to induce the Court to interfere with which the law and legal construction of the the award on the ground of misconduct of the will would have effected. The Court, however, arbitrator there must be something more than sustained the award, though the arbitrators mere suspicion. “Where the arbitrators took money of one sidue not included in the will they did not con
stated on affidavit, that in disposing of the reof the parties alone for their charges without ceive that they were making any distribution any bill delivered, and before the making of of it according to any
fixed rules of law upon the award, Lord Hardwicke, C., thought this the subject, but that they were dealing out to a sufficient reason to set the award aside,
for if the several parties interested, what appeared to this were suffered it would, he said, be hard to them
to be according
to the best of their judgdistinguish what was corruption.
ment, under all the circumstances of the case, “It will not be permitted to a person chosen strict and impartial justice, agreeably to what as an arbitrator to buy up the unascertained they believed to have been the intention of the claims of any of the parties to the reference; testator. From the terms of the award, the or to purchase an interest in those rights upon statement of the arbitrators, and the mention which he is to adjudicate. Such a proceeding made in the report that the arbitrators were would corrupt the fountain and contaminate gentlemen who were well acquainted with the the award.
intentions of the deceased, it may probably be "The arbitrator must also as much as pos- inferred that the question in difference was, sible keep his mind free from all personal feel. not what was the legal effect of the will and the ings respecting the case, for if an arbitrator legal rights of the parties to the property, but use any expressions towards either party, what was the distribution of the estate which which discover a strong, bias or prejudice in the testator intended by his will to have made. his mind, or show that he has been actuated If this view be correct, the arbitrators, by the by any hostile feeling, the award will be set impeach the conduct of the other arbitrator, tively of their legal rights, and thus in one aside, and this, even where there is nothing to very nature of the matter in difference, were
called upon by the parties to decide irrespecwho joined in the award.”
sense authorised to award against law, or rather In the section treating of the principles beyond law.
384 Review : Russell on the Power and Duty of Arbitrators.-Law of Attorneys.
“A dictum, however, of Hilde, C. J., in a aside awards, or in showing cause against such recent case, that the Courts will not set aside motions, affidavits of arbitrators are constantly an award for a mistake in law of the arbitrator, used in the Courts of Law and Equity to ex. unless they can on the face of the award dis- plain alleged irregularities, to answer charges tinctly see that the arbitrator, professing and of misconduct, to show under what circuintending to decide in accordance with law, has stances particular meetings were held, and in unintentionally and mistakenly decided con- what manner the award was executed.” trary to it, may be quoted to assist the argnment, that if the arbitrator avowedly threw the
We reserve for a separate article Mr. law overboard, his decision, notwithstanding, Russell's statement and discussion of the might be supported.”
law as to the power of Attorneys and CowoOn the subject of voluntary statements sel to bind their clients by acceding to : made by the arbitrator relating to the reference. We are not aware whether it is grounds or reasons for liis award, the claimed as a general right or privilege of the Author says
Bar to agree to an order of reference at Nisi
Prius without the authority of, or in oppo" It is a question deserving the deliberate sition to the suitor ; but we presume that consideration of the arbitrator in each particular case, under what circumstances, and to what the conduct of the cause is so far in the extent, he should give an explanation of the hands of Connsel that in the absence of the grounds of his award, in answer to inquiries party or his Attorney, and where no inby either party, made with a view of taking structions have been giren to refuse a reproceedings to impeach or defend it. ference, the Counsel may exercise his own
“We have before seen that in many cases discretion. The Attorney who has selected the Courts will refuse to receive the arbitrator's the Counsel in whose ability and judgment statements, in which event the explanation he fully confides, rarely opposes the opinion would be merely useless. “But assuming the statements available as
of his Counsel; but there are cases some evidence, and the arbitrator willing to answer times in which the Attorney is positively questions, it seems advisable, as far as may be, directed not to assent to a reference; and if circumstances permit, to adopt the course in such cases if the Attorney insists upon followed by some arbitrators, when a verbal having the trial, the counsel, we apprehend, explanation is sought, of declining to answer must go on or “throw up” his brief. It inquiries, unless both parties call together to seems doubtful whether the Court has abreceive the explanation ; for it may be remarked solute power to do more than postpone the that a verbal exparte communication is open to objection in some respects; since if the arbi- trial, if it be inconsistent with the just claims trator be led into conversation with a party, or of other suitors to proceed ; but by the with the attorney of one of the parties, alone, it Common Law Procedure Act, 1854 (s. 3), is possible he may do the absent party a serious if it appears that the matter in dispute coninjury by an unguarded expression, which a sists “wholly or in part of matters of mere question from the latter, had he been present, account,” the Court is authorised to direct might have induced him to qualify. It is also possible that the result of the interview may
an arbitration. not be exactly and impartially reported. To prevent misconception, the arbitrator, if he can, LAW OF ATTORNEYS AND had better make all his communications in writing.
SOLICITORS. “When the Courts were more willing than they now are to set aside an award for mistake, CLAIM FOR ACCOUNT AGAINST SOLICITOR we have previously seen that the affidavits of
AND TAXATION OF BILL. the arbitrator, admitting that the mistake had been made out to his satisfaction, was perpetu
Upon the death of a testatrix, her execually required by Lord Thurlow, C., before he trix (Mrs. Brett) authorised the defendant, annulled the award.
Mr. John Secker, as her attorney and agent, “We have before noticed that an affidavit to get in and administer the personal estate, will not be received from an arbitrator to er- and he accordingly took possession of her plain his intention in awarding in a particular estate and effects, more than sufficient to manner, the terms of the award being clear.
“A narration of mere facts concerning the pay the debts, funeral expenses, and leproceedings in the reference, stands on a very gacies, but he never rendered any account different footing from an explanation of the to the executris, and on her death the mode in which the arbitrator has performed plaintiff, who was her surviving executor, his judicial functions, and when no ground of filed this claim for an account. etiquette interposes, there seems no reason why The Vice-Chancellor Stuart said :an arbitrator should not depose to them as well as any one else.
“In this case it is contended that the plainAccordingly we find no motions for setting tiff ought to have proceeded, not by claim, but