proceeded against (sec. 158). The Sheriff proceeds summarily in all cases under the Act without abiding the course of the roll, and without written pleadings, or reducing the evidence to writing, unless he see fit; and proceedings so taken are not liable to review by suspension, advocation, or reduction on any ground whatever (sec. 159). A form of conviction is given in Schedule G. No proceedings under the general or special acts can be quashed for want of form, or removed into a superior court by suspension or otherwise (sec. 161). But when the proceedings have been in writing, an appeal lies to the Sheriff from his substitute, who may hear the parties viva voce, subject, however, to no further review (sec. 162). Appeal also lies from the Justices to the Quarter Sessions, if made within four months, and on ten days' notice in writing to the opposite party, provided the appellant enter into recognisances with two sufficient sureties, to prosecute the appeal, and abide the judgment (sec. 163). The Quarter Sessions may hear and determine the appeal at once, or may adjourn it to the following sessions, and may confirm, quash, or mitigate the sentence, dealing with sums already levied, costs, and damages as they see fit (sec. 164).

against com

Provisions are also made by the same statute for the more Damages effectual and speedy recovery of damages or expenses exigible from pany. the company by reason of any irregularities, trespasses, or other wrongful proceedings done in the exercise of the statutory powers, and not otherwise provided for. These provisions are as follows:

Court.

The company, or any persons acting on their behalf, who have Payment into rendered themselves liable to prosecution for irregularities, trespasses, or other wrongful proceedings under any of the provisions of the general or special acts, may prevent action being raised against them by tendering sufficient amends; and if action has already been raised, they may before the record is closed pay into Court such sum of money as they shall think fit, by leave of the judges, and the effect of this will be the same as in ordinary cases where this course is adopted (sec. 143).

Where provision is not otherwise made for ascertainment of damages, costs, or expenses accruing under the Act, they are determined by the Sheriff; and if not paid within seven days after demand, they may be recovered under warrant of the Sheriff, by

How ascerrecovered.

tained and

Jurisdiction.

25 and 26 Vict. c. 89.

poinding and sale of the goods of the company or other party liable (sec. 144). In default of sufficient company goods on which to levy the amount decerned for, it may be recovered by poinding and sale of the goods of the treasurer, provided that it does not exceed £20, and that he has been served with a written notice and demand for the amount seven days previously. The treasurer is entitled to indemnity against the company for payments so made or levied, and he may make it good either by retention or action (sec. 145).

When questions of damages, expenses, or charges fall to be determined by the Sheriff or two Justices, the defender may be summoned on the warrant of the Sheriff or any Justice; and decree or award pronounced by the Sheriff or two Justices in foro or in absence is final (sec. 146).

The Companies Clauses Act of 1862, though it refers merely to companies incorporated by registration, contains the following provisions for the summary recovery of penalties for offences inter socios::

All offences involving penalties may be prosecuted summarily in Scotland, before two or more Justices, or the Sheriff or Sheriffdepute of the county, in manner directed by 17 and 18 Vict. c. 104, or any Act amending the same (sec. 65), not being offences described as felonies or misdemeanours. The Sheriff or Justices may direct the whole or part of the penalties to be applied in payment of costs or in rewarding informers; but in default of such direction they are paid into Exchequer (sec. 66).

CHAPTER X.

ARBITRATION.

PRIVATE FIRMS AND COMMON LAW COMPANIES.

observations.

THOUGH individual partners have no implied powers to refer General to arbitration matters in which their companies are concerned; and though it is even doubtful whether such a power may on mere implication be competently exercised by majorities so as to bind dissenting members, it is not unusual to confer it by the instrument of formation on majorities, officials, or managing partners. When this has been done, the powers so conferred will bind the company, provided they are exercised by the persons and in accordance with the provisions stipulated; nor is it probable that the courts will in a question with third parties permit the company to take advantage of informalities, to escape from obligations so created. It would be jus tertii for a third party to found on such informalities.

It is also a common practice to introduce into the articles of association or deed of copartnery, clauses whereby disputes arising inter socios or between the company and its members or their representatives are required to be referred to the arbitration of certain specified persons. Such stipulations, when properly expressed, are binding, and will exclude to a great extent the jurisdiction of the ordinary tribunals (a). To be effectual, however, they must be conceived in very explicit terms; and they must contain a specific reference to persons named. Thus a clause in a contract of copartnery, referring all future disputes to the chairman, etc., of the Glasgow Chamber of Commerce for the time, was held to be

(a) Cooper v. Bertram, Shotts Friendly Society, 1825, 3 S. 454; Manson v. Doull, 1840, 2 D. 1015.

Clauses of

submission in

contract of

copartnery.

Rules as to arbitration.

ineffectual, the reference not being to an individual, and the reference as well as the point to be decided being indefinite at the date of the contract (a). In like manner, an obligation to refer to two neutral persons was held to be insufficient to bar action (b).

Arbitration between companies and the public, or their own partners, are in general regulated by the same rules as apply in cases of ordinary submissions, and will be found in any work on arbitration (c). There are, however, some peculiarities to which we shall briefly advert. An arbiter is in general disqualified by being a partner (d). It is no objection, however, to an arbiter, that as partner of a company he is creditor to a small extent of an insolvent party, in whose favour decree is pronounced (e). It was found to be no objection to a decree-arbitral against a company, that it was pronounced after the sequestration and death of the sole partner, notice having been given to the trustee and representatives, who declined to appear (ƒ). It does not seem ever to have been judicially settled, but there can be no doubt that a submission may be prorogated by the acts of one active and known partner, such power plainly falling within the implied agency. In a judicial reference of an action against a partner for payment of two calls of stock, it was held that as the referee had decerned for payment of both calls at one time, whereas, by the statute constituting the company, an interval of one month should elapse, the decree was invalid, except as to the first call, and was in other respects conditional and inconclusive (g). It was held that a submission in a contract of copartnery, of any difference which shall arise between the partners themselves, did not apply to an action by one partner against the other for illegal, fraudulent, and malicious violations of the con

tract, such as attempting to destroy the partnership by creating a fictitious bankruptcy (a). The clerk to a submission between two partners raised an action against both for his account, and arrested the funds of one of them. A new submission was entered into between the clerk and that partner, and the amount claimed was consigned in the hands of the referees. They having differed in opinion, and declined to act, a multiplepoinding raised by the clerk in their name for disposal of the consigned fund was held competent, though the other partner had not been made a party (b).

STATUTORY ARBITRATION.

enactments.

We have already seen that it is a matter of considerable doubt, Legislative whether at common law, and unless specially provided in their instruments of formation, associations for the purposes of gain, whether corporate or unincorporate, have the power of referring disputed questions to arbitration, so as to bind dissenting members. However this may be, the Legislature has by divers acts conferred powers to this effect upon companies incorporated or formed under certain general enactments, and has laid down certain rules by which such statutory arbitrations are to be regulated. It will be necessary to devote some space to the examination of these provisions.

The Lands Clauses Consolidation Acts, and the Railway Clauses Consolidation Acts, provide that, in certain circumstances, the value of lands taken under the powers of a company's special act, and the loss or damage consequent on the company's operations, shall be assessed by arbitration; and the mode in which such arbitrations are to be conducted is specially laid down and regulated. These provisions are declared applicable to railways formed under the Railway Construction Facilities Act, 1864 (sec. 51 of 27 and 28 that Act). It is unnecessary to notice these provisions in this place, as they have been already fully examined and explained.

Vict. c. 121.

c. 17.

By the Companies Clauses Consolidation (Scotland) Act, 1845, 8 and 9 Vict. it is provided that where any dispute directed by that or the special act, or any act incorporated therewith, to be settled by arbitration, shall have arisen, then, unless both parties concur in the appoint(b) M'Farlane v. Black, 1842, 4 D. 1459.

(a) Lauder v. Wingate, 1852, 14 D. 633, and 24 Jur. 321.