380

Mercantile Law (Scotland) Amendment Bill.

tions and assurances, or by some person duly authorised by him or them.

and Ireland, the Islands of Man, Guernsey, Jersey, Alderney, or Sark, and the islands adjacent to thein, or any of them, being part of the dominions of her Majesty, and made pay

any part of the said United Kingdom or islands, shall be deemed to be an inland bill; but nothing herein contained shall alter or affect the stamp duty, if any, which but for this enactment would be payable in respect of any such bill.

5. No such guarantee, security, cautionary obligation, representation, or assurance entered into 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, after a change shall have taken place in any one of the partners of a company to which the same has been granted or made, or of a company for the acts or intromissions of which the same has been granted or inade, in so far as 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 payinent, and dissecurity, cautionary obligation, representation, honoured by not being paid, it shall not be or assurance, shall continue to be binding 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 nics, 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; Lut it shall be sufficient to prove such presentment and dishonour, to the effect of preserving recourse as aforesaid by other competent evidence, either written or parole: Provided always, that nothing herein contained shall be taken to affect the necessity for a notarial protest in order to entitle the holder of any bill or note to proceed with summary diligence thereon.

6. Where any person shall, after the passing of this Act, become bound as cautioner for any principal debtor, it shall not be necessary for the creditor to whom such cautionary obligation shall be granted, before calling on the cautioner for payment of the debt to which such cautionary obligation refers, to discuss or do diligence against the principal debtor, as now required by law; but it shall be competent to such creditor to proceed against the principal debtor and the said cautioner, or against either of them, and to use all action or diligence against both or either of them which is competent according to the Law of Scotland: Provided, that nothing herein contained shall prevent any cautioner from stipulating in the instrument of caution that the creditor shall be bound before proceeding against him to discuss and do diligence against the principal debtor.

7. Where two or more parties shall become bound as cautioners for any debtor any discharge granted by the creditor in such debt or obligation to any one of such cautioners without the consent of the other cautioners, shall be deemed and taken to be a discharge granted to all the cautioners.

As to Bills of Exchange and Promissory Notes. 8. Where any bill of exchange or promissory note shall be issued without date, it shall be competent to prove by parole evidence the true date at which such bill or note was issued: Provided always, that summary diligence shall not be competent on any bill or note issued without a date.

9. No acceptance of any bill of exchange, whether inland or foreign, made after the 31st day of Dec. 1856, shall be sufficient to bind any person except the same be made in writing on such bill (or if there be more than one part of such bill, on one of the said parts), and signed by the acceptor or some person duly authorised by him.

10. Every bill of exchange drawn in any part of the United Kingdom of Great Britain

12. Where an inland bill of exchange shall be presented for acceptance or payment, and such acceptance or payment shall be refused, or where any promissory note shall be presented for payment, and payment shall be refused, notice of the dishonour of such bill or promissory note by such refusal to accept or pay shall, in order to entitle the holder to have recourse to any other party, be given in the same manner and within the same time as is required in the case of foreign bills by the Law of Scotland.

13, In all cases where any bill or note has been lost, stolen, or fraudulently obtained, the holder of such bill or note suing or doing diligence thereon shall be bound to prove that value was given by him for the same; but such proof may be made by parol evidence.

14. When any bill of exchange or promissory dorsed after the period when such bill of exnote, shall after the passing of this Act, be inchange or promissory note became payable, the indorsee of such bill or note shall be deemed to have taken the same subject to all objections or exceptions to which the said bill or note was subject in the hands of the indorser.

Married Women's Reversionary Interest Bill.-Review: Russell on Arbitration.

Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them, being part of the dominions of her Majesty shall be deemed

à home port.

MARRIED WOMEN'S REVERSIONARY
INTEREST BILL.

By this Bill it is proposed to enact1. From and after the passing of this Act, it shall be lawful for every married woman by deed to dispose of every future or reversionary interest, whether vested or contingent, of such married woman, or her husband in her right, in any personal estate whatsoever, as fully and effectually as she could do if she were a feme sole; and also to release and extinguish her right or equity to a settlement out of any personal estate to which she, or her husband in her right, may be entitled in possession, save and except that no such disposition, release, or extinguishment shall be valid unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as hereinafter directed.

NOTICES OF NEW BOOKS.

381

Treatise on the Power and Duty of an Arbitrator, and the Law of Submissions and Awards; with an Appendix of Forms, and of the Statutes relating to Arbitration. By FRANCIS RUSSELL, Esq., M.A., Barrister-at-Law. Second Edition. London: Stevens & Norton and II. Sweet. 1856. Pp. 956.

THE Law relating to Arbitrations and Awards has greatly increased in importance since the passing of the Common Law Procedure Act, 1854, and of several other recent Statutes. The power conferred on the Court or a Judge to direct an arbitration before trial has removed, to some extent, a grievance which previously existed, where all the expenses of briefs for several counsel (one only being usually sufficient on a reterence), and the attendance of witnesses was incurred, and then the Judge ordered a reference. If an arbitration be the proper 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 Act passed in the 3 & 4 Wm. 4, intituled "An Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance," prescribed for the acknowledg ment and perfecting of deeds disposing of interests of married women in land; and all and singular the clauses and provisions in the said Act concerning the disposition of lands by married women, including the provisions for dispensing with the concurrence of the husbands of married women, in the cases in the said Act mentioned, shall extend and be applicable to such interests in personal estate as may be disposed of by virtue of this Act, as fully and effectually as if such interests were

interests in land.

3. Provided always, That the powers of disposition given to a married woman by this Act shall not interfere with any power which independently of this Act may be vested in or limited or reserved to her, so as to prevent her from exercising such power in any case, except so far as by any disposition made by her under this Act she may be prevented from so doing, in consequence of such power having been suspended or extinguished by such disposition.

We are aware, however, that no small number both of suitors and solicitors have had reason to dispute the justice or expediency of compulsory references. In many cases one of the parties desires a public trial before a jury, and is not satisfied with a private discussion in the arbitrator's room and a decision given without any reason assigned. There is still a class of suitors who, like our "sturdy ancestors," prefer a battle in open Court, and cannot understand how the counsel, who have been paid their fees for a spirited contest before twelve men, are authorised either to assent to the proposition of a reference if it come from the Judge or themselves to suggest it.

Another set of suitors have no objection to a reference, but would prefer selecting their own arbitrators, instead of the Judge or the counsel nominating some learned junior whose advancement they wish to promote. But supposing this questionable nomination not to arise, then come the of numerous long delay and serious expense 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 marable arbitrator being chosen, and the parties riage.

5. This Act shall not extend to Scotland.

being willing to proceed forthwith, the evidence may be taken in one day and the discussion the next; but usually the meetings.

382

Review: Russell on the Power and Duty of Arbitrators.

duty of the arbitrator in forming his award. 6. His duty in awarding on the cause or suit referred. 7. His duty in awarding costs. 8. What directions may be given in the award. 9. Award under the Lands' Clauses' Consolidation Act. 10. The arbitrator's duty when award referred back. 11. Personal interests of the arbitrator, remuneration, &c.

last only two or perhaps three hours, be- 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 authowhere. 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 arbitrators, the practice is to accommodate their learned friends without much regard to the pecuniary interests or convenience of the parties. It has been suggested that arbitrators should be appointed who would proceed continuously, allowing of no delay, unless the necessity of it were proved as on the postponement or adjournment of a trial occasioned by the absence of a material witness, whose evidence could not reasonably be anticipated as requisite or could not be earlier procured. If a remedy could be found for the evil complained of, a much larger number of references would take place, delay would be avoided, expense saved, and greater satisfaction would result.1

But we must now leave this professional grievance and turn to the volume before

us, Mr. Russell's able Treatise on the Power and Duty of an Arbitrator and the Law of Submissions and Awards.

as Common Law.

The Third Part comprises :-1. Effect of the award. 2. Its performance. 3. Award as a ground of action or defence at Law. 4. The like in Equity. 5. Making the submission a rule of Court. 6. Enforcing the award by attachment. 7. By proceedings under the Statute. 8. By proceedings in the cause referred. 9. Setting aside an Setting aside judgment. 12. Impeaching award. 10. Referring an award back. 11. award in Equity. 13. Effect of failure of

reference.

The Appendix comprises forms of submissions to reference; of proceedings during the reference; awards; pleadings; and proceedings on the award.

In the preface to the present edition, the Author refers to the important changes which have been made in the Law of ArMr. Russell has effected an improvement bitration by the second Common Law Procedure 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 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. Of 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 re- Metropolitan Sewers; Quarter Sessions; port, expressed an opinion that 'provisions for 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 proceeding, should be made.' The only provision, however, is one prescribing the making of the award within three months (s. 15). A reference, if made to a lawyer appointed by the parties, may nevertheless continue to be the tedious, expensive, and unsatisfactory proceeding which it has hitherto been, for the costs to be incurred in three months may easily be made to exceed the value of the subject-matter in dispute."

cieties. By this method of adding to the volume only the essential sections, its bulk is not much increased; and this example, we trust, will be followed. If, however, an author fully states the import of statutory provisions in the body of his work, we see no necessity for giving the enactments verbatim in an Appendix. Every practitioner has the Statutes relating to the Law in some

Review: Russell on the Power and Duty of Arbitrators.

form or other, and ready access to the Statutes at large.

383

by which the arbitrator should be guided, Mr. Russell observes that

It 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 the 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 details into which he has entered are class- in order to do complete justice between the ed under appropriate sub-divisions, and we tions into consideration in forming his judgparties, and that he may take all moral questhink 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"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.

It will not be expected that we should give many examples of the Author's learning and research, but shall venture to extract a few passages from the section on "the moral qualities requisite in an arbitrator."

Mr. Russell observes that

"It is hardly necessary to state, that in conducting the reference the first duty of the arbitrator is to be incorrupt and impartial. If there be any ground for imputing corruption, fraud, or partiality to him, the award cannot stand. Though the Courts will rarely review the bona fide exercise of the arbitrator's authority, yet evidence of the merits will always be let in, so far as it may throw light upon his conduct with reference to the above imputations, but to induce the Court to interfere with the award on the ground of misconduct of the arbitrator there must be something more than mere suspicion.

Justice.

consideration, make what they conceive, under all circumstances, to be an equitable decision, it is no objection to the award that in some particular point it is manifestly against law.'

"But these and similar general observations must in general at least, it is humbly suggested, be considered and explained by reference to the matters in dispute in the particular case, arbitrator power beyond law. Thus in the showing the intention of the parties to give the above rule, the arbitrators to whom the differcase which gave rise to the expression of the referred, awarded that they were of opinion ences respecting a testator's estate had been. that the intention of the testator was by his will to have disposed of his property in a particular manner which they specified, and with which they directed the parties to be satisfied. This distribution was clearly contrary to that which the law and legal construction of the will would have effected. The Court, however, sustained the award, though the arbitrators sidue not included in the will they did not constated on affidavit, that in disposing of the receive that they were making any distribution of it according to any fixed rules of law upon the subject, but that they were dealing out to the several parties interested, what appeared to them to be according to the best of their judgment, under all the circumstances of the case, strict and impartial justice, agreeably to what they believed to have been the intention of the testator. From the terms of the award, the statement of the arbitrators, and the mention made in the report that the arbitrators were gentlemen who were well acquainted with the 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 aside, and this, even where there is nothing to impeach the conduct of the other arbitrator, who joined in the award."

"Where the arbitrators took money of one of the parties alone for their charges without any bill delivered, and before the making of the award, Lord Hardwicke, C., thought this a sufficient reason to set the award aside, for if this were suffered it would, he said, be hard to distinguish what was corruption.

"It will not be permitted to a person chosen as an arbitrator to buy up the unascertained claims of any of the parties to the reference; or to purchase an interest in those rights upon which he is to adjudicate. Such a proceeding would corrupt the fountain and contaminate the award.

In the section treating of the principles

very nature of the matter in difference, were called upon by the parties to decide irrespectively of their legal rights, and thus in one sense authorised to award against law, or rather beyond law.

384

Review: Russell on the Power and Duty of Arbitrators.-Law of Attorneys.

"A dictum, however, of Wilde, C. J., in a recent case, that the Courts will not set aside an award for a mistake in law of the arbitrator, unless they can on the face of the award distinctly see that the arbitrator, professing and intending to decide in accordance with law, has unintentionally and mistakenly decided contrary to it, may be quoted to as-ist the argnment, that if the arbitrator avowedly threw the law overboard, his decision, notwithstanding, might be supported."

On the subject of voluntary statements made by the arbitrator relating to the grounds or reasons for his award, the Author says

aside awards, or in showing cause against such motions, affidavits of arbitrators are constantly used in the Courts of Law and Equity to explain alleged irregularities, to answer charges of misconduct, to show under what circumstances particular meetings were held, and in what manner the award was executed."

We reserve for a separate article Mr. Russell's statement and discussion of the law as to the power of Attorneys and Counsel to bind their clients by acceding to a reference. We are not aware whether it is claimed as a general right or privilege of the 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 the conduct of the cause is so far in the case, under what circumstances, and to what extent, he should give an explanation of the hands of Counsel 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 given 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 statements, in which event the explanation would be merely useless.

the Counsel in whose ability and judgment he fully confides, rarely opposes the opinion "But assuming the statements available as of his Counsel; but there are cases someevidence, 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 receive the explanation; for it may be remarked that a verbal exparte communication is open to objection in some respects; since if the arbitrator be led into conversation with a party, or with the attorney of one of the parties, alone, it is possible he may do the absent party a serious injury by an unguarded expression, which a question from the latter, had he been present, might have induced him to qualify. It is also possible that the result of the interview may not be exactly and impartially reported. To prevent misconception, the arbitrator, if he can, had better make all his communications in writing.

seems doubtful whether the Court has absolute power to do more than postpone the trial, if it be inconsistent with the just claims of other suitors to proceed; but by the Common Law Procedure Act, 1854 (s. 3), if it appears that the matter in dispute consists "wholly or in part of matters of mere account," the Court is authorised to direct an arbitration.

LAW OF ATTORNEYS AND
SOLICITORS.

AND TAXATION OF BILL.

"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 the arbitrator, admitting that the mistake had been made out to his satisfaction, was perpetually required by Lord Thurlow, C., before he annulled the award.

UPON the death of a testatrix, her executrix (Mrs. Brett) authorised the defendant, Mr. John Secker, as her attorney and agent, to get in and administer the personal estate, and he accordingly took possession of her estate and effects, more than sufficient to

"We have before noticed that an affidavit will not be received from an arbitrator to explain his intention in awarding in a particular 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 executrix, 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 | an arbitrator should not depose to them as well as any one else.

Accordingly we find no motions for setting

The Vice-Chancellor Stuart said

'In this case it is contended that the plaintiff ought to have proceeded, not by claim, but