oversman. a difference of opinion has arisen, Brysson, 2 S. 382. When the arbiters differ, they transfer the subject-matter Devolution on of dispute, in whole or in part, to the oversman by a minute of devolution, which is valid, if signed by the arbiters, though not a probative document, Stewart, March 8, 1804, F.C.; Kirkaldy, June 16, 1809, F.C. The devolution to the oversman enables him to deal with the cause in so far as it is devolved on him, Lang, 2 Macq. 93. oversmen, after must act. After accepting office, arbiters and oversmen can refuse Arbiters and to act only on shewing sufficient reason to the Court, but acceptance, one of two arbiters cannot be compelled to pronounce an award or to choose an oversman, Marshall, 15 D. 603; White, M. 633. The Court of Session alone has jurisdiction to compel arbiters and oversmen to proceed, Forbes, 13 R. 465; but see Sinclair, 11 R. 1139. receive claims, take all man ner of proba tion, and to hear parties. III. POWER TO ARBITERS AND OVERSMAN TO RECEIVE III. Power to THE CLAIMS OF PARTIES, TO TAKE ALL MANNER OF PROBATION, AND TO HEAR PARTIES.-At common law, arbiters and oversmen have power to receive claims, to take proof, and to hear parties; and they are bound to deal fairly and equally with both parties, Sharpe, 3 Dow's App. 102; Heggie, 3 S. 488; Earl of Dunmore, 13 S. 356. Arbiters and oversmen are entitled to use a large discretion in deciding whether to allow or to refuse proof, Mowbray, 10 D. 1102; Miller, 17 D. 689; but if they allow proof to one party, they cannot refuse it to the other, Mitchell, 10 D. 1297. If a reference is made to a man of skill, he can conduct inquiries as he deems best, and it will not be a relevant objection to his decree that he refused to receive proof regarding the subject-matter of dispute, Macdonald, 6 D. 186; Cochrane, 21 D. 369. Indeed, there may be a submission to men of skill, who, on a sound construction of the submitting clause, are not in a position to take evidence. Thus, in a contract of a sale of iron ore, there was R IV. Power to arbiters and oversmen to decide, with expenses. this clause :-"Should any dispute arise as to quality, the same to be referred to Messrs. Wallace, Tatlock & Clark, city analysts, Glasgow, whose decision shall be final.” The Court held that, under this clause, it was sufficient that the analysis should be made by any one of the partners of the firm, and that the referee was not entitled to take evidence, his duty being simply to analyse and report, Wm. Dixon (Limited), 11 R. 739. Arbiters and oversmen are often empowered to take proof on commission, and it is thought that they have the power to do so at common law, Bell on Arbitration, 160. To compel production of papers or attendance of witnesses, arbiters and oversmen can apply to the Court, Harvey, 4 S. 809; and see Blaikie, 14 D. 590; Crichton and Others, 25 S.L.R. 595. IV. POWER TO ARBITERS AND OVERSMAN TO DECERN AGAINST EITHER PARTY FOR SUM DUE, EXPENSES, &c.— At common law, arbiters and oversmen have power to decide against either party, and to award expenses, including remuneration to the clerk of the submission, to either party, Ferrier, 4 Bell's App. 161; Stewart, 1 S. 335. They are also entitled, without a special stipulation in the submission, to secure such assistance from accountants, &c., as is necessary to enable them to discharge their office efficiently, and the parties are liable for the expenses so incurred, Macleod, 4 S. 330; Caledonian Railway Co., 3 Macq. 808. As a rule, arbiters and oversmen not oversmen are not entitled, at common law, to a fee for their services, Jack, March 6, 1777, M. Arbitration, App. No. 5; Montgomery, M. 631; Stewart, 1 S. 335 ; but, prior to accepting office, they may stipulate for remuneration, Fraser, 16 S. 1049. Compare Macallum, June 26, 1810, F.C.; Lyle, 5 D. 236; and Henderson, 5 Macph. 628. In the case of Henderson, a party to a submission of an action of count and reckoning paid a fee As a rule, arbiters and entitled, in absence of stipulation, to a fee. to the arbiter, a professional accountant. The Court, A arbiters or final. V. POWER OF ARBITERS OR OVERSMAN TO ISSUE AWARDS, V. Power of INTERIM OR FINAL; ENDURANCE OF SUBMISSION; AND oversman to issue awards, POWER OF PROROGATION; PENALTY FOR NON-PERFORM- interim or ANCE.—It is usual to give power to arbiters and oversmen to issue interim awards, which will be valid even if the submission falls without an award exhausting the whole subject-matter of the submission, Lyle, 5 D. 236; M'Kessock, 2 S. 13. It is thought that interim awards can be issued without an expressed power to that effect when the subject-matter is composed of articulate points, Lord Lovat, M. 625, and see Lyle, supra. But, according to Erskine, if arbiters should pronounce judgments on all the articles claimed on one side, and leave all those on the other undetermined, the decree would be null, Ersk. 4, 3, 33. Neither arbiters nor oversmen require express power to issue a final award. endurance, when period of endurance When the period of endurance is expressed, as it usually Period of is, in a formal submission, to be "betwixt and the day of next to come," the submission expires blank. on the lapse of a year and a day after the date of the last subscription of the deed. The period is the same, although the restrictive words "next to come" do not appear in the clause, Stark, Dec. 23, 1820, F.C., App. 3; Ancillary submission subsists as long as the contract. definite. Submission not blank and to time. Menzies, M. 639. The decree-arbitral can be signed on the last day of the endurance of the submission, Wilson, M. 647; Paterson, 7 S. 616; but a decree pronounced, after the period of endurance has elapsed, is null, Donaldson, M. App. Arbitration, No. 1. An ancillary submission, being a constituent part of another contract, subsists as long as that contract; and when there are disputes subsisting at the expiry of the contract which fall under the reference clause, the clause remains in force to the effect of enabling the arbiter to determine such disputes, Montgomerie, 10 D. 1387; Bell on Arbitration, Period may be 304. Again, the submission may fix a definite period of endurance, in which case the submission falls ipso facto on the lapse of the specified time, Ersk. 4, 3, 32; Donaldson, M. App. Arbitration, No. 1. When the submission not limited as contains no blank, is not limited as to time, and contains no power of prorogation, it will subsist for forty years; see Ersk. 4, 3, 29; Bell on Arbitration, 297; but if in such a submission there is a power of prorogation, the submission expires on the lapse of a year and a day, when there is no act of prorogation, Bell on Arbitration, 298. In the absence of stipulation to the contrary, a submission (not an ancillary submission) falls by the death of either judicial) falls of the parties-submitters, Robertson, 9 D. 599; by the death either of a sole arbiter or of one of two arbiters, or perhaps of one of a number of joint-arbiters, Ersk. 4, 3, 34. A submission does not lapse either by the supervening bankruptcy of a party, Grant, June 23, 1820, F.C., or by the bankruptcy of an arbiter, Bell on Arbitration, 301. When a party becomes bankrupt, notice to his trustee requires to be given, Grant, supra. A submission cannot be recalled by one party; but if an arbiter shews that his conduct is inconsistent with the proper performance of his office, either party may revoke and apply for an interdict against his proceeding as arbiter, Drew, 2 Macq. 1. An ancillary submission does not Submission (not ancillary and not by death of a party or an arbiter, &c. fall by the death of either party; it is binding on the heirs and singular successors or assignees of the parties, and endures as long as the primary contract, Montgomerie, 10 D. 1387; Orrell, 21 D. 554. Nor does a judicial reference fall by the death of either party, Watmore 1 D. 743. When trustees enter into a reference, and die before an award is pronounced, but survived by new trustees who have been assumed into the trust, the reference does not fall by their death, the trust, not the individual trustees who entered into the reference, being held the true party to the transaction, Alexander's Trustees, 10 R. 1189. rogation. Arbiters have no power to prorogate a submission Power of prounless it is specially conferred on them; but, where arbiters have power to prorogate, an oversman can, without express authority, exercise the power after the devolution to him takes place, Bell on Arbitration, 183. An act of prorogation takes the form of a minute, which is written, as a rule, on the same sheet with the submission, and which does not require to be either holograph or tested, Stewart, March 8, 1804, F.C.; Gordon, Dec. 10, 1812, F.C. There may be prorogations from time to time, and an act of prorogation, expressed as being to "the next to come," continues the submission for a year and a day from its date. But prorogation must be executed during the currency either of the period covered by the submission itself or of that covered by an act of prorogation; see Earl of Dunmore, 7 S. 595. Parties may prorogate or renew a submission either in express terms or by facts and circumstances, Macilhose, 5 Br. Sup. 204; Paul, 5 Macph. 613. day of Parties often bind themselves to implement the award Penalty. of the arbiter under a penalty. At common law an has no power to impose a arbiter or an oversman penalty, Ersk. 4, 3, 32. The penalty will only cover |