(2.) To the arrestee, that he is not debtor to the common debtor; or that he has a lien over the property; or that the arrestment is informal; or that he is under double distress.1 IX. INDENTURE. 465. What is the effect of an indenture entered into by a minor without his father's consent? It is null [but see contra Stevenson, 10 M'P. 919]. In one case an indenture was sustained which had been entered into by a minor apprentice, with his father's knowledge and acquiescence, although the latter had not subscribed the deed as consenter.3(r) 466. May indentures be after-stamped? (1.) All kinds of indentures may be after-stamped within three months, when executed within fifty miles from the limits of the weekly bills of mortality, and within six months when at a greater distance. [Indentures may now be after-stamped on the same conditions as other instruments under § 15 of the Stamp Act, 1870.] (2.) Indentures of law apprentices may be stamped at any time on payment of a penalty. [This matter is now regulated by the Stamp Act, 1870, $$ 42 and 43.] 467. Where an apprentice-fee has been paid, may repetition of any part of it be demanded on the death of the apprentice or master? (1.) On the apprentice's death, repetition cannot be demanded. 1 Bell's Com. ii. 63, 64. 2 Low, 14th Nov. 1797; Hume 422. 3 Harvie, 7th March, 1829, 7 S. 561. () In the case (Harvie) referred to, the circumstances were not exactly as here stated. The minor's father was dead; the indenture was entered into with consent of the minor's elder brother, who was held out as curator; and with the knowledge of his uncle, who was his curator-nominate, but did not interfere. of any part of the fee; because the contract, being necessarily personal, is dissolved by his death.' 2 (2.) On the master's death, a proportion of the apprentice-fee is claimable for the period of the apprenticeship unexpired; as the obligation on his part is not merely upon himself, but also upon his heirs, executors, and successors. But no portion of the fee can be demanded if the master's representatives are ready to perform his part of the contract, by transferring the apprentice to another master properly qualified." 468. Where the master, by the misconduct of the apprentice, has sustained loss and damage exceeding the penalty in the indenture; May he recover the amount of his loss from the cautioner or the apprentice? Without a substantive obligation by the cautioner for general loss and damage, the master cannot demand from him more than the amount of the penalty; but he may recover from the apprentice whatever loss he has sustained by breach of the indenture.* 469. What circumstances must concur to entitle a master to reclaim his apprentice after enlistment? (1.) The master must, within one month after the apprentice has left his service, emit the oath prescribed by the Mutiny Act before a justice of the peace. (2.) The apprentice must be bound by a regular indenture for four years. (3.) The indenture must be certified by a justice of the peace, within three months from the commencement of the apprenticeship, and before the enlistment. (4.) The apprentice must be under twenty-one years of age. (5.) If the apprentice has been previously bred to the sea, he cannot be reclaimed from the Navy." 1 Shephard, M. 589. 2 Ogilvy, 2 Br. Sup. 34. 3 Cutler, M. 583. 4 Duff on Deeds, 294; Gunn, 21st July, 1835, F.C., 13 S. 1142. 5 19 Vict. c. 10.(t) (t) This is the Mutiny Act, which is passed every year, but is not printed ad longum in the statutes at large. X. SUBMISSION. 470. What is the nature of a contract of submission? It is a contract between two or more parties, whereby they agree to refer disputed rights or claims to the determination of one or more arbiters, as private judges, and bind themselves to abide by and implement the decision.1 471. May a submission be verbal ? A verbal submission is ineffectual, except where the interest is of a very trifling amount. [See as to a verbal arbitration about marches, Otto, 9 M'P. 660.] The "Articles of Regulation concerning the Session" 1695, protecting decrees-arbitral against challenge, refer only to subscribed submissions." 472. In entering into a submission with a minor or a company, what ought to be done to make the submission effectual? (1.) In submissions with minors, the guardians must concur; and they should be taken bound personally to implement the decree-arbitral, as it is exposed to the risk of being set aside, as regards the minor, on his attaining majority, on the ground of minority and lesion. (2.) A submission with a private company ought to be subscribed, not only by the company firm, but by the whole partners, as submission is not an ordinary act of administration.3 473. May a factor loco tutoris, or executors, or trustees, enter into a reference without special powers? (1.) A factor loco tutoris appears to have power to enter into a reference regarding moveables, but not regarding heritage."(u) (2.) It is doubtful whether executors or voluntary trustees can 1 Ersk. 4, 3, 29. 2 Menzies Lect. 383 (395); Fraser, M. 8476; Ferrie, 5th June, 1824, 3 S. 113. 3 Lumsden, M. 14567. (u) It was observed, however, in Falconer's case that "the pupil might be restored ex capite læsionis." refer, without special authority in the deed of their appointment, as they act for the sole purposes of collection and distribution.' [By the Trusts (Scotland) Act, 1867, gratuitous trustees are authorised (if not at variance with the terms or purposes of the trust) to submit and refer all claims connected with the trust-estate.] (3.) A trustee for creditors, with the consent of the commissioners, has this power under the Bankrupt Act." 474. May a married woman enter into a submission? The general rule is, that a married woman cannot enter into a submission; because she is incapable of binding herself to implement the decree. But it is thought that a submission by a married woman would be sustained—(1) where she carries on a separate trade, and her husband is abroad, relative to the affairs of such trade; or (2) in a question with her husband as to the amount of a separate aliment; (x) or (3) in regard to her separate estate from which her husband's jus mariti and right of administration is excluded; [or (4) in regard to the earnings of a married woman, or investments representing them, in terms of The Married Women's Property Act, 1877.] 475. Where an agent enters into a submission, binding himself as taking burden for the principal to abide by, implement, and fulfil the decree-arbitral; Will the agent, on proving that he had been authorised by his principal, be personally bound? State the reason. 1 Duff on Deeds, 304; Bell's Prin. 1998. 219 & 20 Vict. c. 79, § 176. 3 Duff on Deeds, 305; M'Gregor's Trustee, 22nd Jan. 1820, F.C.; (x) Ersk. 1, 6, 25. (x) Such a submission is very different from ordinary contracts of that description, because the husband could at any time annul the award by putting an end to the separation, and it might not in all circumstances be binding on the wife; but the case of M'Gregor's Tr., cited, involved no question of this kind. There had been a contract of separation, in which the parties agreed to submit to arbitration the annuity to be paid to the wife. It was fixed at £80, restrictable to £50, if husband gave heritable or personal security; he gave security over a house, and afterwards failed. The trustee for his creditors challenged the security as a postnuptial provision; but it was sustained, as being effectual during the separation, the husband's right of putting an end to which could not be attached by his creditors, and no fraud being suspected. The agent will be personally liable to implement the decreearbitral; because the obligation is not merely an undertaking that the principal shall recognise and adopt the arbitration, but an engagement on the agent personally to fulfil whatever the arbiter shall award, whether his constituent shall acknowledge it or not.1 476. Must the arbiter, in all cases, be named in the deed of submission? In a submission of existing or anticipated disputes, it is essential that the arbiter be named, on the principle of delectus persona, and that to sanction submissions which did not name the arbiters would be equivalent to creating a new court." [The House of Lords, however, have sustained a reference of an existing dispute to a society consisting of a number of members whose names were not given in the agreement to refer, Bremner, 2 R. (H. of L.) 136.] But an exception to the rule is admitted (1) in arbitrations under the Friendly Societies Act;3 and (2) although a prospective engagement to refer future or anticipated disputes to arbiters not named, is not obligatory, yet the engagement is binding, although the arbiters be not named, where the reference forms an essential part of another contract [and is necessary for working out some stipulation thereof.](y) "The difference lies not in the reference being or not being contained in the body of a contract; but in its being a part of a contract in this sense, that the parties having agreed that a particular thing shall be ascertained or done, further agree that it shall be ascertained or done in a particular manner, namely, by arbitration."5 1 Woodside, 4th Feb. 1848, 10 D. 604. 2 Buchanan, M. 14593. 3 Manson, 5th June, 1840, 2 D. 1015. 4 Menzies Lect. 388 (400); Smith, 28th Feb. 1843, 5 D. 749; Hendry's Trustees, 28th May, 1851, 13 D. 1001. 5 Orrell, 22nd Feb. 1859, 21 D. 554, p. Lord Deas. (=) (y) Such a clause of reference in a mineral lease, "to persons of skill, to be chosen mutually by the parties," means the nomination of one man of skill on each side, and does not imply the nomination of an umpire; Cochrane, 20th March, 1861, 23 D. 865; Merry, &c., 21 D. 1337, 22 D. 1148; aff. 26th March, 1863, 1 M'P. 14. (2) See also the cases of Selkirk, M. 627; Pearson, 4th Feb. 1859, 21 D. 419; Birrell, 9th March, 1859, 21 D. 640; and M'Cord, 20th Nov. 1861, 24 D. 75. ૨ |