Tutor.

Minor with curators.

Trustees,

gratuitous and on sequestrated estates.

Partner of a company.

Mandatory.

from this country of her husband, or who has obtained
a decree of judicial separation or obtained an order of
protection under the Conjugal Rights Amendment Act,
1861, or the Conjugal Rights Amendment Act, 1874,
can refer matters of dispute without the consent of her
husband, and a decree-arbitral ordaining her to grant a
deed with a personal obligation for payment will be
valid, Bell on Arbitration, 99. See further, supra, p. 1

et seq.
A tutor can enter into a submission about the
moveable estate of his ward, Maitland, M. 641; Ersk. 1,
7, 18; but it is doubtful whether he can enter into a sub-
mission about his heritable estate, Bell on Arbitration,
105. A minor, with the consent of his curators, can enter
into a submission about moveable estate, Williamson, M.
8965, or about questions ancillary to the onerous aliena-
tion, burdening, or leasing of his heritable estate, Bell on
Arbitration, 110. A factor loco tutoris and a curator
bonis can submit to arbitration questions relating to
moveables, Falconer, M. 16,380; Corson, 13 S. 1093;
but it is doubtful whether a judicial factor has such
power, M'Dowal, M. 4058; Aberdeen Town and County
Bank, 9 Macph. 842. By the Trusts Act, 1867, § 2 (5),
gratuitous trustees have power "to submit and refer all
claims connected with the trust-estate when the exer-
cise of such power is not at variance with the terms and
purposes of the trust; and trustees on sequestrated estates,
with the consent of the commissioners, have the same
power, 19 and 20 Vict. c. 79, § 176. It is doubtful
whether executors, without special authority from the
testator, have power to refer, Bell on Arbitration, 112;
and see M'Kersies, 10 Macph. 861. A partner of a com-
pany has no power to bind the company to a submission,
Lumsden, M. 14,567, unless he is specially authorised by
his partners to do so. A mandate conceived in general
terms for the management of the mandant's affairs gives no
power to the mandatory to refer to arbiters, Ersk. 3, 3, 39.

clause.

clause.

ter requires to

submission.

II. SUBMITTING CLAUSE, OR CLAUSE OF REFERENCE. II. Submitting The clause of reference, or the submitting clause-(1) Contents of states the subject-matter of the arbitration; (2) names an arbiter or arbiters; and (3) if there is more than one arbiter, either names an oversman, or empowers the arbiters to select one. In a common-law submission, it is essen- When an arbitial to its validity that the arbiter or arbiters should be be named in a expressly named, Davidson, Feb. 28, 1810, F.C.; it is not sufficient to appoint as arbiters the holders of an office for the time when the dispute may arise, or to give a person power to name arbiters, Buchanan, M. 14,593; Steel Company of Scotland, 15 R. 215; Hendry's Trustees, 13 D. 1001. In the Steel Company of Scotland, a clause of reference referring any question that might arise as to the meaning or intent of a contract to the engineer of the Forth Bridge Railway Company for the time being was held ineffectual. When, however, a dispute has arisen, a reference may be made to an ascertained body of men, Bremner, 2 R. (H.L.) 136. In Bremner, a dispute, which had arisen between two parishes as to the settlement of a pauper, was referred by them to the decision of a society of inspectors of poor, and the reference and the award following thereon were held valid by the House of Lords. Lord Hatherley observed: "I listened in vain to find the authority of any decision of the Courts in Scotland cited which would authorise this House in saying that when a dispute has arisen, and when a reference has been made to an ascertained body of men, and when the body to whom the reference was made has arrived at its decision, or made its award, that award is not binding upon the parties who had so submitted their case to the tribunal they had chosen, merely because it is composed of a number of individuals instead of being composed of a single individual, and because some of the persons composing that body may from time to time be changed." Whilst it

Exception to rule that

arbiters must

be named in

(1) agreement to fix a price

of a thing sold, or the

conditions of a lease, or a dispute arising during the execution of a

contract, &c.

must be held as established that, as a general rule, a sub-
mission of disputes and differences, whether actual or
contingent, to arbiters not named is ineffectual, there is
this exception to the rule, that an agreement by parties to
a contract to submit matters essential to the extrication
of their rights and obligations under its provisions to
arbiters to be mutually chosen is effectual, Smith, 5 D.
749; Merry & Cunninghame, 21 D. 1337, but such an
agreement will not cover a dispute which arises after the
contract has been completed, and which resolves itself into
a claim of damages, Pearson, 21 D. 419; Howden, 9 R.758.
In Smith, lessors leased land for a period under a memor-
andum of agreement, which contained a condition that the
lessee should cede possession at any time before the
expiry of that period if he was desired to do so, and that
such compensation should be allowed to him for the
unexpired period of the lease as should be "fixed by
men to be mutually chosen for that purpose." The
lessors having resumed possession before the expiry of
the stipulated period, the Court held that the lessee was
not entitled to have the compensation due to him fixed
otherwise than by arbitration.
arbitration. In Merry & Cunninghame,
the parties to a missive of lease of minerals bound them-
selves that "should the minerals become exhausted, or
workable only at an evident loss, the tenants shall be
entitled to give up the lease on the same being ascertained
by arbiters mutually chosen ;" and it was held that
parties were bound, although there was no naming of
arbiters in the missive of lease, to refer to arbitration
the question, whether the minerals let were workable
only at an evident loss. In the case of Howden & Co.,
parties to a contract for the supply of machinery for a
vessel stipulated that any dispute or difference which
might arise relating to the contract, or to the rights or
duties of the parties to it, should be submitted to the award
of "three neutral persons, one to be named by each party

in dispute, and the third by the two so chosen." On the completion of the vessel an action was brought for payment of an admitted balance, and a counter-claim for damages for delay in fulfilling the contract at the rate specified in the contract was put forward by the defenders. The defenders also pleaded that the clause of reference excluded the action at the instance of the pursuers. The plea for the defenders regarding the clause of reference was rejected, and Lord President Inglis, in giving judgment, said: "I do not think that this is a kind of arbitration which can be made to arbiters unnamed. It is not a reference in regard to a thing which must be done in order to clear the terms of the contract, but it is a reference in regard to a lis, which can only be cleared up by the parties themselves. A reference to fix a price, or the conditions of a lease, or any dispute arising during the execution of a contract, as in Merry & Cunninghame's case (21 D. 1337), are matters which cannot be settled by a Court of law without assistance. They are not lites; they are things about which it has been anticipated by the parties that there may be a difference, and accordingly, in such cases, a reference to parties unnamed has been sustained." Lord Mure also said in the case: "The exceptions to the rule of law that an agreement ab ante to refer contingent claims to persons not named cannot be enforced do not cover clauses of arbitration where the contract, as here, has been completed, and where the action resolves itself into a claim of damages." All matters, including questions of damage, (2) In certain between parties to a statutory arbitration, may, if the submissions. statute is so expressed, be referred to arbiters not named. For example, in arbitration under the Friendly Societies Act, 38 and 39 Vict. c. 60, § 22, arbiters do not require to be named.

statutory

Arbiters ought to have no interest in the subject-matter Arbiter ought of the submission; but, if parties knew when they entered interest in the

to have no

of submis

sion.

subject-matter into the submission that an arbiter had an interest, he will not be disqualified from acting, Johnston, 5 Dow's App. 247. If an arbiter comes to have an interest in the matters submitted after the contract is entered into, his interest will invalidate his award, unless objection to his proceeding as arbiter is waived by parties, M'Kenzie, 7 S. 215; Tennent, 14 S. 976; Phipps, 5 D. 1025; Trowsdale, 4 Macph. 31. A contract for joiner work contained a clause of reference submitting disputes between parties to the architect of the building. The contractor raised an action of reduction of the clause of reference and for payment, and the architect was examined as a witness on the points referred to him in the clause of reference. This examination was held to disqualify him from acting as arbiter, Dickson, 8 Macph. 566. See Scott, 6 R. 616; Addie & Sons, 7 R. 79; Morisons, 8 R. 147; Mackay, 10 R. 1046. As has been stated, an oversman may be named in the

At common

law, arbiters

to name an

oversman.

have no power deed of submission, or the choice of an oversman may, by the contract, be conferred on the arbiters. At common law, arbiters have no power to appoint an oversman, Matheson, 4 D. 1472. If the arbiters appoint an oversman when they have no power to do so, the submission will be useless in the event of the arbiters differing, unless consent is given by the parties to the nominee of the arbiters, see Merry & Cunninghame, 22 D. 1148, and Bell on Arbitration, 187. Arbiters, who have power to name an oversman, are not entitled to leave the choice to mere hazard. But, in the case of Smith, 14 R. 931, arbiters, who had the power to appoint an oversman, arbiters, when agreed to select by lot one of two equally eligible men, and the appointment was held valid. It was also held by the Court, in the same case, that the arbiters had no power to appoint to the office of oversman a person who was a shareholder in a company which was a party to the reference. Until the arbiters have differed, the oversman cannot act, but he can be appointed before or after

Oversman

must be intelligent choice of

power to nominate

conferred on them.