Page images
PDF
EPUB

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 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 maiters in difference thie 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

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. trator the possession of all requisite powers, Bench is said to have laid down the following

In one instance the Court of Queen's 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 ar. bitrator 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, fraud, or partiality to him, the award cannot referred, awarded that they were of opinion

ences respecting a testator's estate had been stand. Though the Courts will rarely review that the intention of the testator was by his the bond fide exercise of the arbitrator's au- will to have disposed of his property in a parthority, 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 feelings respecting the case, for if an arbitrator legal rights of the parties to the property, but

not what was the legal effect of the will and the 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

very nature of the matter in difference, were aside, and this, even where there is nothing to called upon by the parties to decide irrespecimpeach the conduct of the other arbitrator, tively of their legal rights, and thus in one who joined in the award."

sense authorised to award against law, or rather In the section treating of the principles beyond law.

Author says

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

“A dictum, however, of n'ilde, 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 exunless 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 circumintending 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 argument, 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 CounOn the subject of voluntary statements sel to bind their clients by acceding to a made by the arbitrator relating to the reference. We are not aware whether it is grounds or reasons for his award, the 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 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 cr 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 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 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 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

an arbitration. possible that the result of the interview may 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 ex. 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 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 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 plain"Accordingly we find no motions for setting tiff ought to have proceeded, not by claim, but

Law of Attorneys.-Law of Costs.-On Conditions of Sale.

385 hy petition under the Act. It appears the de- ; band was originally liable, and his whole estate fendant was einployed by Mrs. Brett as her was vested in them. He thought, therefore, solicitor, and also as her confidential agent, in that the husband was entitled to his costs. receiving, paying, and managing, on her behalf, the administration of an estate of which Rotherham v. Battson, 2 Smale & G. viii. she was executrix. There is no doubt that, where the relation of agency and confidence

ON CONDITIONS OF SALE. exists, and the transactions involve accounts, this Court recognises the right of the employer to proceed by bill or claim, to have the accounts In the Legal Observer of the sth instant, taken under the direction of this Court. On Mr. Caparn has very well described the comthat principle, the Court acted in the case of plaint, but has, I think, insufficiently pointed Lord Hardwicke v. Vernon, 14 Ves. 504-11, out the remedy required which should be apand in many other cases. If this defendant plied. were not a solicitor, but merely a confidential Such remedy appears to me to be simple, and agent, the right to sue him by bill or claim for is the taking and acting on a more enlarged an account could not be disputed. I am unable and just view, of the provisions which would to see how the circumstance, that the defend- be really beneficial for the client's interest. ant, besides being the agent, acted also as the Taking such a view, it will be found that in solicitor, can deprive his employer of that right. this as in other matters, honesty is the best I shall, therefore, direct the account to be taken policy, and penny wisdom may be pound foolin the usual way, of all the defendant's receipts ishness. and payments while acting on behalf of Mrs.

From a narrow and mistaken view, of the Brett in the matters in the bill mentioned ; and client's interest being too often taken, conalso, that he do, within a month, deliver in his ditions are so framed as not only to throw on bill of costs against Mrs. Brett, and that it be the purchaser many expenses which would be taxed in the usual manner.” Oddy v. Secker, regularly borne by the vendor,—but to induce 2 Smale & G. 193.

many intended bidders to fear, from the length

and stringency of the conditions, that the exLAW OF COSTS.

penees so thrown on the purchaser would be much more heavy than they may ultimately turn out to be.

The result is, that some persons are altogether

deterred from bidding, and the number of This bill was filed by a married woman competitors is thus diminished; and even as to against the executor of a testator, to administer those who become bidders, a large estimate is his estate, and for the settlement of the pro- made of the probable expenses they may have perty to which she was entitled under the will, be proportionately reduced ; the vendor losing

to incur, and the amount of their biddings will on herself and her children. Her husband in many cases much more than he would have and his assignees in bankruptcy were made to pay in the absence of the stringent condefendants, and it appeared he owed the estate ditions.

It may, however, be said, that it is necessary about 4001.

to protect the vendor against unfair requisiThe Vice-Chancellor Stuart said, that as the tions, and I admit to its full extent that neceshusband had received a portion of the estate sity. The end may, however, I think be readily in which his wife was interested, a settlement attained without objectionable conditions. would be directed to be made of the whole of by the conditions that half the expenses of

The course I would suggest is, to provide her share, and as her husband was a debtor to compliance with requisitions should be borne the estate he would give no costs to his as- by each party. signees. With regard to the costs of the hus- Under conditions so framed, the having to band, as by a rule of the Court the plaintiff pay half the expense would deter a purchaser

from making frivolous requisitions, and the could not associate her husband with herself vendor would be protected from needless exas a co-plaintiff, he was necessarily made a pense ;—the amount he would have to disburse defendant. Then it was contended, that the would also be more than repaid by the confihusband being a debtor to the estate, he ought dence the bidders would have in the fairness

of the conditions, and the belief they would not to be allowed his costs, or at least that he reasonably entertain that, with such conditions, ought to be allowed only to deduct them from the expenses would in all probability not be his debt. But the husband was before the heavy. Court only in his character of husband, and

The result would be, that the biddings would not as a debtor. It was the duty of his assig- duction for uncertain expenses, and the vendor

be made more freely, and without a large denees to answer all demands on which the hus- would get the advantage of a full competition

and a full price,-especially as the confidence 16 & 7 Vict. c. 73.

felt in the fairness of the conditions would in

OF HUSBAND AND HIS ASSIGNEES IN SUIT

BY WIFE.

386

On Conditions of Sale.- Registered Joint-Stock Limited Companies. all probability be extended to the representa- responding diminution in their biddings to the tions in the particulars.

great injury of the vendor; whilst, if given the I do not express a mere theoretic opinion on option by the condition of having a conveyance this matter, as I have in practice adopted the at a fixed price, they will, if choosing to avail plan I suggest, and have found it attended themselves of that option, know the exact with material advantage to my clients :—in one amount of their expenses, and thus make with instance in particular, where an estate was held safety more liberal biddings. under nearly a score different titles, freehold The condition may be made consistently and copyhold, a judicious allusion to the con- with a due protection of the interests of pur. ditions by the auctioneer at the time the bid. chasers, by having the title previously approved dings began to flag, led to a renewal of compe- of by a counsel of experience, as a safe holding tition, and a very considerable addition to the title for a purchaser, and to further satisfy the purchase-money

purchasers that they would have a properly Another condition often introduced, and framed conveyance, the form of such convey liable to objection from its want of fairness, ance might be also prepared by the counsel, if may, I think, be readily amended so ae to se required to be special in its form. cure to the vendor all its substantial advan- By adopting the plan I suggest, and stating tages, and yet treat the purchaser fairly. in the conditions that the title has been so ap

I allude to a condition giving the vendor the proved of, and form of conveyance so prepared, power, on receiving requisitions with which he I feel certain that the interests of the client cannot, or cannot at a small expense, comply, would be most materially advanced. to put an end to the contract on a mere return True it may be that the interests of the soof deposit, without interest or expenses. licitor may be forwarded at the same time, but

This appears to me unfair, especially as to it appears to me that the being induced by expenses,—for as to interest, the vendor not such a consequence, to omit the plan best formaking any, the stipulation that he shall not warding the client's interest, would be an inpay any may not be strictly speaking unfair, stance of false delicacy rather to be laughed at even, however, as to the latter, I think that it tban admired. would be sound policy on the part of the ven- The conditions to which I have alluded are dor to deal liberally with the purchaser, in the those to which objection most frequently apevent of choosing to avail himself of the option plies; for as to those restricting inquiries 'as to to vacate the contract.

titles under allotment Acts, grants of waste, The alteration I would suggest is, that the on small exchanges, &c., I think that bidders vendor should provide for paying to the pur- think they are but fair, and that no bidding is chaser a low rate of interest, say 3 per cent., lost by their insertion.

R. and a small sum in satisfaction of expenses.

The condition would but seldom be taken REGISTERED JOINT-STOCK LIMITED advantage of, and in all cases would add to the confidence felt by the bidders in the fairness

COMPANIES. with which they were treated, and would consequently add to their readiness in giving their The following list of some remarkable rebiddings freely. In the few cases where acted gistered companies is extracted from a return upon, although it would subject the vendor to co Parliament a small expense, it would not unjustly do so. On another point to which Mr. Caparn al

The following may be classed as companies ludes, I confess I cannot fully agree in the for the investment of money :correctness of the position for which he ap- London Joint-Stock Advance Society (Limipears to contend; I mean the impropriety of ted). Advancing money by loan and discountthe vendor's solicitor providing, by the con- ing bills. Promoter, William Thomas Woods, ditions, for the conveyance being prepared by Gentleman, Bramhill Lodge, Willesden, Mid him.

dlesex. If made compulsory on the purchaser, I fully

London and Westminster Joint-Stock Incestagree that such a condition is improper and directly injurious to the vendor; but if made ment Association (Limited). Lending money. optional, I think there are cases in which such

Promoter, Charles Edward Lewis, Solicitor, a condition may not only be free from objec

New Boswell Court, Lincoln's Inn. tion, but almost requisite for protection of the

Legal Reversionary Interest Society (Limivendor's interest.

ted). Purchasing reversions, life interests, Now, assume that land is to be sold in small &c. Promoters, Charles Edward Lewis, Solis lots for building purposes ; in this case the citor, 14, New Boswell Court, Lincoln's Inn; purchase-money for each lot may not be above Frederick Bowden, Gentleman, Peterboro' 501. or 601., and if bidders are to remain in a Villas, Fulham. state of uncertainty as to the amount of ex- British and Foreign Exchange Investment pense, which must necessarily in such small and Loan Company, or Compagnie Générale purchases be a heavy per-centage on the money du Crédit Européen (Limited). Advancing given ; some of the bidders will assume 101. money on securities. Promoter, Jean Jacques as the expense, some even 15l. as the proba- Santon, Merchant, Wellington Chambers, ble amount of expenses, and will make a cor- Cannon Street, West.

Registered Joint-Stock Limited Companies.--Suggestions for Amending the Law. 387 General Credit Company (Limited). Lend- SUGGESTIONS FOR AMENDING ing money on security. Promoter, Edward

THE LAW. John Thompson, Watch-glass Manufacturer, 5, Percival Street, Clerkenwell.

BY MR. SAMUEL SHAEN, OF KENNINGTON. National Discount Company (Limited). Re- Read at the Meeting of Solicitors at Birmingham. ceiving money on deposit, and discounting bills. Promoter, Alexander Palmer M‘Ewen,

WITHOUT the pretension of an elaborate Gentleman, 25, Montpelier Square, Bromp- essay, a few cursory remarks are offered upon ton.

an important subject.

There is no branch of any profession more London Discount Company (Limited). Dis capable than that of attorneys and solicitors of counting bills and advancing money by way of united action, or to which such united action loan. Promoter, William Galsworthy, Solici- is more important, or may be rendered more tor, 12, Old Jewry Chambers.

serviceable, and no efforts should be lost to

induce the members of our body to join this The following are Law Reporting, News- association. paper, and Book Companies :

The proposition once made by the IncorpoUnion Publishing Company (Limited). Pro- have been raised for general purposes by pay

rated Law Society, by which a fund would moting the circulation of first class periodi- ments from every solicitor, and by which, in cal productions. Promoters, George Johnson effect, a corporation would have been formed, Ranson, Publisher, 9, Red Lion Court, Fleet had much to recommend it; and some scheme Street ; Richard Alfred March, Accountant, of the kind is essential to the best interests of 29, Great James Street, Bedford Row; Tho- the body. mas Dick, Gentleman, 9, Richmond-Terrace,

Though self-protection must naturally be the Dalston.

principal object with all law societies, yet the Law Reporting Society (Limited). Pub- large opportunity open to them to improve the lishing law reports. Promoters, John Bury law for the general benefit ought not to be Dasent, Barrister-at-Law, 11, Crown Office considered as in any degree a less important Row, Temple; George French, Barrister-at- sphere of duty; and while lively action in Law, 7, Stone Buildings, Lincoln's Inn; it secures public favour (a consideration of no Thomas Spinks, Doctor of Civil Law, College, minor importance), its indirect benefits to the Doctors' Commons.

| Profession are, in general, hardly established

at their full value. Law and Equity Reports Society (Limited). The extent of useful operation, however, is Reporting and publishing cases decided in the unfortunately in many directions very much Courts of Law. Promoter, Edward Bourne limited through the nature of the defects being Lovell, Barrister-at-Law, 8, New Square, Lin- such as to involve considerable difference of coln's Inn.

opinion among the Profession as to the approLondon Joint-Stock Book Establishment priate remedies, and such questions, for the Company (Limited). Publishing and selling present at least, it is advisable to pass over. books. Promoters, Charles Thomas Master - Still the points on which there can hardly be man, Gas Engineer, Soho Works, Birming- any very material difference of opinion are ham; James Bohn, Bookseller, 5, Lyndhurst neither few nor unimportant. Grove, Camberwell.

The importance of wise and earnest action

of this kind is the more pressing from the risk Liverpool Printing and Publishing Company run in its neglect. Where great defects exist, (Limited). Printing and publishing a daily public opinion will soon compel some alteranewspaper in Liverpool.

tion, and left to less competent hands, empiric National Newspaper League Company (Li- measures will be past, injurious alike to the mited). Printing a newspaper.

Promoter, Profession and the Public. A striking inWilliam Cribb, Gentleman, 18, Stockwell Park stance of this danger was the outrageous Bill Road, Brixton.

of Exchange Bill of last year, and which was

with so much difficulty defeated. Yet the Law The rest are as follow :

of England on this subject had long been far

behind the age, and was excelled alike by that General Apothecaries Company (Limited). of Scotland and of most continental countries ; Supplying the medical profession and the pub- and if the previous attempts at its reform, lic with unadulterated drugs and chemicals, which had been repeatedly made by Lord invalids' food, &c., and preparing physicians' Campbell

, had only been properly assisted by prescriptions.

the Profession, not small would have been the Ladies' Guild Company (Limited). Manu. gain to us alike in credit and profit. facturing decorated glass. Promoters, Edward Among the numerous subjects of this nature, Vansittart Neale, Esq., West Wickham, Kent; to which the Society's attention may be useFrederick William Bramston, Esq., Oak Tree fully directed, may be mentioned the following. House, Clapham, Surrey.

The selection is purposely miscellaneous :

1. The opening the Insolvent Courts to attorneys. The fullest evidence could easily be

« EelmineJätka »