CT. OF APP.]

In this connection it is not without interest to observe the justification which James, L.J. in Earl Vane v. Rigden (ubi sup.) gives for conceding to an executor his undoubted power to pledge his testator's assets. "It seems to me to be settled on principle, he says, as well as by authority that an executor has full right to mortgage as well as to sell, and it would be very inconvenient and very disastrous if the executor were obliged to convert into money by sale every part of the assets of the testator. It is a very common practice for an executor to obtain an advance from a banker for the immediate wants of the estate by depositing securities. It would be a strange thing if that could not be done." How very applicable is that reasoning to the present case.

To my mind, all that we are doing in upholding the deed of partition here is to apply that broad principle to an analogous case. We are invoking it to justify and uphold the validity of this partition deed as a natural and proper step towards the beneficial realisation of this asset of the testator.

But it is objected that no trace can be found in the books of any such act on the part of an executor ever having been done or upheld. I am not surprised that no case upon the point is on record.

Prior to 1897 the property in the hands of an executor susceptible of partition would practically be confined to chattels real and under many, if not under most, leases a partition would be greatly hampered if not made quite unpracticable by the terms of the lease itself. The case of Ames v. Comyns (17 L. T. Rep. 74) is an interesting example of the inconvenience of attempting in a normal case, partition of leaseholds. But the power of an executor to demand a partition, with presumably a power to agree to one, is not without some recognition in the books few as must have been the occasions on which it was exercisable. Wentworth, on the Office of Executors, 14th edit., p. 221, says this " Where judgment is once given in writ of partition for a termor or in a writ of account, if the plaintiff die before the second judgment (needful in both cases) his executor is not put to a new suit, but may proceed by scire facias upon the former judgment." A passage the significance of which I am not in the circumstances disposed to underrate.

This

way

Again, it is pointed out that trustees for sale have no power to effect a partition. is not the occasion to trace the hesitative and somewhat confused history of that disability. I agree with the Lord Justice that the powers of executors virtute officii are in no paralleled by the powers of trustees for sale with which we are not here concerned. The difference in one respect between them, as I ventured to point out in Chaplin's case (128 L. T. 186; (1922) 2 Ch. 824, at p. 825), will be found by comparing Oceanic Navigation Steam Company v. Sutherberry (43 L. T. Rep. 743; 16 Ch. Div. 236) with the case of Evans v. Jackson (8 Sim. 217).

[K.B. Div.

Next it was said that the Oceanic case just cited shows that this partition must be affirmatively justified by the vendor, for that it is an unusual method of realisation.

To that contention one answer I think is that the real objection to the transaction in the Oceanic case was that it was not a sale at all, and that instead of being conducive to a sale it effectively hampered one. I have nothing to add to what on that point I said in Chaplin's case.

This deed of partition, however, is not justified as a form of realisation. It realises nothing. It is justified only as a preliminary to a beneficial realisation as being reasonably incidental to the beneficial exercise of the executors' admitted powers.

The learned judge seems to have drawn the inference from the facts of this case that the

executors acquired "the fee in the entirety of a portion of the undivided property obviously not with a view of selling it but with a view of holding it until possibly it could be realised at a more beneficial time or dealt with in another way."

This does not suggest itself to my mind as being either the necessary or natural inference to be drawn from the circumstances known to us. If I had felt that it was, I might have had more difficulty than I felt in answering the question which I put to myself, by saying, as I do, that I can see no reason at all for concluding that the executors here had not perfect power to enter into and to bind their testator's estate by the deed of partition which in this case they executed.

In my judgment the purchaser's objection to the title fails and this appeal should, I think, be allowed.

Appeal allowed.

Solicitors for the appellant, Nicholls and Co. Solicitors for the respondent, Walbrook and Hosken.

HIGH COURT OF JUSTICE.

KING'S BENCH DIVISION. March 12, 13, and 27. (Before Lord HEWART, C.J., AVORY and SALTER, JJ.)

KURSELL AND OTHERS v. TIMBER OPERATORS AND CONTRACTORS LIMITED. (a) Arbitration Power of arbitrator-Discovery— Affidavit of documents-Sworn answers to interrogatories-Arbitration Act 1889 (52 & 53 Vict. c. 49), sched. I., par. (f).

A sole arbitrator on a reference by consent under the Arbitration Act 1889, who had been appointed by a written submission, was asked by the claimants to direct the respondents to make an affidavit of documents, and to give sworn answers to certain interrogatories. The arbitrator (a) Reported by J. F WALKER, Esq.. Barrister-at-Law.

K.B. Div.]

held that he had no jurisdiction to make such an order, but stated a case under sect. 19 of the Arbitration Act 1889 for the opinion of the court on the questions, (1) whether he had jurisdiction, as sole arbitrator acting under the submission, to direct that a party to the arbitration should make an affidavit of documents as to the subject-matter of the arbitration; and (2) whether he had jurisdiction, acting as sole arbitrator under the submission, to direct that a party to the arbitration should answer interrogatories on oath. The written submission did not give the arbitrator in express terms power to order discovery of documents or the answering of interrogatories. By par. (f) of the first schedule to the Arbitration Act 1889 "The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require." Held, that where the written submission modified neither the powers given to the arbitrator by the Act nor the terms of the submission set out in the first schedule, both the above questions must be answered in the affirmative.

CASE stated by a sole arbitrator for the opinion of the court under sect. 19 of the Arbitration Act 1889.

On the 30th Nov. 1921 the arbitrator was appointed by a submission in writing under the Arbitration Act 1889 to decide differences which had arisen between the parties under a written agreement of the 10th Sept. 1920. At the hearing on the 21st Dec. 1922 the claimants, the appellants, asked the arbitrator to direct the respondents to make an affidavit of documents and to answer a certain number of interrogatories. The respondents objected that he had no jurisdiction to do so, and the arbitrator upheld the objection.

The arbitrator asked for the opinion of the court on the following two questions:

(1) Whether I have jurisdiction, as sole arbitrator acting under the said submission, to direct that a party to the arbitration should make an affidavit of documents as to the subject-matter of the arbitration ?

(2) Whether I have jurisdiction, as sole arbitrator acting under the said submission, to direct that a party to the arbitration should answer interrogatories on oath ?

The Arbitration Act 1889, sched. I. (f): The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power

[K.B. Div.

respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require.

Barrington-Ward, K.C. and E. F. Spence for the appellants.

Clauson, K.C. and D. N. Pritt for the respondents.

SALTER, J. delivered the following considered judgment of the court: This is a special case stated for the opinion of the court under sect. 19 of the Arbitration Act 1889. The case is stated by a sole arbitrator in a reference by consent out of court under that Act. It must be assumed that the submission, which is in writing, modifies neither the powers given to an arbitrator by that Act nor the terms of submission set out in the First Schedule. The questions addressed to the court are as follows: "(1) Whether I have jurisdiction, as sole arbitrator acting under the said submission, to direct that a party to the arbitration should make an affidavit of documents as to the subject-matter of the arbitration? (2) Whether I have jurisdiction, as sole arbitrator acting under the said submission, to direct that a party to the arbitration should answer interrogatories on oath?"

It is necessary to consider first whether these powers, or either of them, can be lawfully vested in a consensual arbitrator by the agreement of the parties. The powers of such an arbitrator depend entirely on the contract. Every power given to him by the Arbitration Act 1889 is subject to the agreement of the parties. It is clear that any power sought to be conferred must be of a kind to aid the tribunal. It is equally clear that the parties cannot vest in an arbitrator powers which only a judge can exercise. They cannot, for example, give him power to commit for contempt (see Re Unione Stearinerie Lanza and Wiener, 117 L. T. Rep. 337; (1917) 2 K. B. 558, at p. 562) or to order the issue of a writ of habeas corpus ad testificandum. It may be that an express agreement that the arbitrator should be at liberty, if he thought fit, to delegate his functions, in whole or in part, to a person chosen by himself would be inoperative. But if the power is not inconsistent with the complete discharge by the arbitrator of his functions, if it is of a kind to aid him in such discharge, and is not of a kind which only a judge can use, it seems difficult, in principle, to say that the parties may not give their arbitrator any powers they please, where those powers affect only themselves. Some other principle must be sought when the powers affect witnesses or other persons who are not parties to the dispute, nor to the submission, nor to the choice of arbitrator. It is enough to say, for the purpose of this case, that we are quite satisfied that powers to order the parties to make discovery of documents and to answer interrogatories on oath can be given to an arbitrator by the agreement of the parties. They are powers which assist the tribunal and their exercise affects the parties only.

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We were referred to an observation of Cozens-Hardy, M.R., in Sutton v. Great Northern Railway Company (101 L. T. Rep. 175; (1909) 2 K. B. 791). In that case the Court of Appeal decided that a County Court judge, sitting as an arbitrator to hear an application for compensation under the Workmen's Compensation Act, 1906, has no power to order discovery or interrogatories. In the course of his judgment in that case the Master of the Rolls said (p. 794): ". . . I go back to the Act itself, and I find nothing in the Act empowering the statutory arbitrator to do that which no arbitrator can do, that is, make an order for discovery or an answer to interrogatories." The observation that no arbitrator can order discovery or interrogatories was unnecessary to the decision of that case, and no such observation was made by the other members of the court. The Master of the Rolls may have been thinking of the powers of an arbitrator under the Act which he is considering. But if the observation is to be taken to mean that a sole arbitrator in a reference by consent out of court under the Arbitration Act 1889, has no power to order discovery or interrogatories, although authorised to do so by the express terms of the written submission, we are unable, with great respect, to agree with it.

It remains, therefore, to consider whether the form of submission contained in the first schedule to the Arbitration Act 1889 implies an agreement by the parties that the arbitrator shall have these powers, or either of them, or whether it is still necessary for the parties to confer these powers in express terms in the submission if they desire the arbitrator to have them. The answer depends on the construction of clause (f) of the First Schedule, which is as follows: "The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things, which during the proceedings on the reference the arbitrators or umpire may require."

This clause consists of three parts. The first binds the parties to submit to be examined on oath by the arbitrator. This obviously includes a duty to submit to be examined by the other party in the presence and for the information of the arbitrator. It may be doubted whether these words, standing alone, bind a party to answer interrogatories put to him by the other party in advance of the hearing, seeing that none of the answers may even be known to the arbitrator. The second part of clause (f) pledges the parties, subject to legal objection, to produce before the arbitrator all documents which may be called for. These words bind the parties to produce before the arbitrator any documents he may call for, and

[K.B. Div.

probably any documents the other party may call for. It may be arguable whether these words, standing alone, would entitle an arbitrator to call on a party to produce before him, or would entitle one party to call on the other to produce before the arbitrator, all documents which the party called on might consider relevant. It may be that, under these words, the demand must be limited to named documents. Certainly they do not bind either party to produce any documents to the other party except before the arbitrator. These words alone obviously give no power to order interrogatories, and it may be doubted if they give power to order discovery. They appear to derive from the common law practice relating to production and inspection of named documents, rather than from the Chancery practice of discovery, which puts the parties on their conscience to disclose their relevant documents to one another in advance of the hearing. In Penrice v. Williams (48 L. T. Rep. 868; 23 Ch. Div. 353), a case decided before the Arbitration Act 1889, a consent order had been made referring an action and all matters in difference to the award of a named arbitrator. The order provided that the arbitrator might, if he thought fit, examine the parties and their witnesses on oath, and that the parties should produce before the arbitrator the pleadings in the action and all books, deeds, papers, and writings in their or either of their custody or power relating to the matters in difference. During the pendency of the arbitration the plaintiff applied by summons in the action under the rules of 1875 for an affidavit of documents. Chitty, J. dismissed the summons on two grounds (1) that the court no longer had seizin of the matter, (2) that the application should have been made to the arbitrator. The judgment on the second point is as follows: "There is also a further objection taken by the defendants, that the parties having, as is shown on the face of the order itself, themselves agreed to place the whole jurisdiction with reference to discovery in the hands of the arbitrator, it was open to the plaintiff to have made an application to the arbitrator, which he has not done. I am of opinion that this latter objection is also fatal. I therefore hold that on either of the two objections, independently of each other, the application must be refused." The learned judge does not say, but he appears to imply, that in his opinion the arbitrator would have had power if he thought fit, to order discovery. He cites authority on the first point, but none on the second. It may perhaps be doubted whether, on the terms of the order in that case, the arbitrator had power to order discovery, as distinguished from production and inspection, but it is not necessary to decide this point. If he had such power, it would seem to follow that, in the present case, the arbitrator has power to order discovery under the second part of clause (f) without reliance on the concluding words of that clause, and that the concluding words have therefore no reference to discovery.

In our opinion, if it is to be held that an arbitrator in a reference by consent out of court under the Arbitration Act 1889 has power to order discovery and interrogatories, it is on the third and concluding part of clause (f) that reliance must be mainly placed, both as to discovery and interrogatories. The words are, "and do all other things which during the proceedings on the reference the arbitrators or umpire may require." As regards interrogatories, these words must be read as supplementing the first part of clause (ƒ) which deals with oral evidence by parties; as regards discovery, they must be read as supplementing the second part of clause (f) which deals, at any rate, with production or inspection of documents. It is difficult to imagine wider words or words which, placed where they are, show a clearer intention on the part of the Legislature to impose on parties to consensual arbitrations the widest possible duty of frank and loyal co-operation with the tribunal. These words have been considered in three

Lord

recent cases. In Re Crighton and Law Car and General Insurance Corporation (103 L. T. Rep. 62; (1910) 2 K. B., 738) it was assumed that an arbitrator under a submission in the statutory form has power to order pleadings, and it was decided that he has a discretion to allow or disallow amendments. If the arbitrator has power to require the parties to define the issues by means of pleadings, and has also power to put the parties on oath, it is difficult to see on what principle he has not power to require them to define the issues in a more effectual manner by answering interrogatories. In the case of Re Unione Stearinerie Lanza and Wiener (sup.) it was decided that an arbitrator under a submission in the statutory form has no power to order security for costs. Reading, C.J. observed that the power could have been given to the arbitrator by express agreement between the parties. In the course of his judgment he considered the scope and meaning of the concluding words of clause (ƒ) and made the following observations upon them : "The words in clause (f) of the first schedule, upon which reliance was mainly placed, do not give the power to order a stay of proceedings pending the giving of security for costs. They are words of general import giving to the arbitrator the power to do anything which he may require for the purpose of ascertaining facts or law in order that he may decide the dispute. It would be a very wide extension of them to construe them as meaning that he has the powers of a judge as to staying proceedings pending the giving of security for costs. I do not think that would be a reasonable construction of the language of the clause. Obviously, the words cannot mean that an arbitrator has all the powers of a judge, because in that case he would have the power to commit for contempt of court in his presence and to issue a writ of attachment for default in compliance with an order made by him. It is not contended that an arbitrator has any such powers, and it is quite

[K.B. Div.

clear that he has not. Consequently, it is apparent that the words of clause (f) cannot be read as if they give the arbitrator the power of a judge, and they must therefore be read subject to some limitation, and that limitation is that the arbitrator may order the parties to do all such things as he may require in order to assist him in arriving at a determination of the dispute." Re Société des Affréteurs Réunis and the Shipping Controller (124 L. T. Rep. 727; (1921) 3 K. B. 1) was a case of discovery against the Crown and turned on the rights of the Crown, but Greer, J. expressly reserved his opinion on the two questions that now arise.

In our opinion, powers to order discovery and interrogatories fall within the meaning of the concluding words of clause (f) as construed by Lord Reading, C.J. in the passage above cited. Mr. Clauson, in the course of an able argument, urged that discovery and interrogatories inform the parties and not the tribunal, since the documents discovered may not be put in evidence, and the answers obtained cannot be used by the party answering, and may not be used by the party interrogating. The point is unsubstantial for the present purpose. Both discovery and interrogatories, when properly employed, are of value to a tribunal. They help an arbitrator to determine the dispute with less expenditure of time and money. The words " subject to any legal objection qualify every part of clause (f), Re Société des Affréteurs Réunis and the Shipping Controller (sup.), and the party making discovery or answering interrogatories has the same right of objection as he would have in an action.

In modern times Parliament has shown a constantly increasing desire to aid and encourage private arbitration. We think that our decision is in accordance with the letter and spirit of the Arbitration Act 1889, when read in the light of the earlier statutes regulating arbitration which it repeals and supersedes.

Both the questions addressed to the court must be answered in the affirmative.

Questions answered.

Solicitors for the appellants, Bull and Bull. Solicitors for the respondents, Lawrence Jones, and Co.

March 26 and 27.

(Before Lord HEWART, C.J., SALTER, and BRANSON, JJ.)

RACKHAM V. TABRUM. (a) Practice-Summons-Mistake in office-Nonattendance of issuing party-Summons struck out Order drawn up-Jurisdiction to hear subsequently.

By the order of a master, the defendant, a solicitor, was ordered to deliver to the plaintiff certain accounts and bills of costs, and, the order not (a) Reported by J. F. WALKER, Esq., Barrister-at-Law.

having been complied with, the plaintiff issued a summons for attachment. This summons was originally returnable on the 26th Jan. 1923, but owing to delay in effecting service the return day was postponed to the 2nd Feb. Through a mistake in the office the summons was left in the judge's list for the 26th Jan., but the plaintiff, being unaware of this, did not attend. The defendant, however, attended, and on his application the summons was dismissed in default of appearance without being heard. On the 2nd Feb. the summons was again in the judge's list, and both parties attended, and the summons was adjourned. On the 3rd Feb. the defendant drew up the order of the 26th Jan. dismissing the summons. Ultimately the judge ordered a writ of attachment, and the defendant appealed on the ground that from the time when the order of dismissal was drawn up the judge was functus officio.

Held, that as the summons had not been heard on the merits, but had been merely struck out, the judge had jurisdiction to entertain it, although the order had been drawn up.

APPEAL from a decision of Bray, J. sitting in Chambers.

By an order of Master Chitty, dated the 15th Feb. 1922 the defendant, W. J. Tabrum, a solicitor, was ordered to deliver to the plaintiff, R. J. Rackham, certain accounts and bills of costs. This order not having been complied with, the plaintiff on the 15th Jan. 1923 issued a summons for a writ of attachment, returnable on the 26th Jan. Owing to delay in effecting service the return day was postponed to the 2nd Feb. By a mistake in the office the summons was left in the judge's list on the 26th Jan. The plaintiff, having no knowledge of this, did not attend, but the defendant appeared, and on his application the summons was dismissed, without a hearing, in default of appearance. The summons again appeared in the judge's list on the 2nd Feb. Both parties then attended, and the plaintiff was informed for the first time that his summons had been dismissed on the 26th Jan. On the circumstances being explained, Bray, J. agreed to hear the summons, and adjourned it to the 6th Feb. to enable the plaintiff to file further affidavits. On the 3rd Feb. the defendant drew up the order, made on the 26th Jan., dismissing the summons. On the 16th Feb. Bray, J., after further adjournments, ordered a writ of attachment to issue, but to lie in the office pending an appeal. The defendant appealed, and before the hearing he complied with the original order of Master Chitty by delivering accounts and bills of costs.

Kennedy, K.C. and Harold Benjamin for the defendant.

C. P. Blackwell for the plaintiff.
The following cases were cited:

Re St. Nazaire Land Company, 41 L. T.
Rep. 110; 12 Ch. Div. 88;

Preston Banking Company v. Allsup and
Sons, 71 L. T. Rep. 708; (1895) 1 Ch.
141;

[K.B. Div.

Hession v. Jones, 110 L. T. Rep. 773;

(1914) 2 K. B. 421 ;

Walker v. Budden, 5 Q. B. Div. 267 ;
Ex parte Streeter; Re Morris, 45 L. T.
Rep. 634; 19 Ch. Div. 216;

Allum v. Dickinson, 47 L. T. Rep. 493;
9 Q. B. Div. 632 ;

Vint v. Hudspith, 52 L. T. Rep. 774; 29
Ch. Div. 322;

Re Grove, 4 Times L. Rep. 272;

Re Thomas; Bartley v. Thomas, 105 L. T.
Rep. 59; (1911) 2 Ch. 389 ;

Re Roberts; Evans v. Thomas, (1887)
W. N. 231.

Lord HEWART, C.J.—The question is whether the learned judge had jurisdiction to entertain this summons after it had been dismissed on the 26th Jan. In my opinion he had. The principle is that where a summons or case has not been heard, but merely struck out, the court may, if it thinks fit, hear or entertain the summons or case, but if there has been a hearing on the merits, though in the absence of one party, it cannot do so after the order is perfected. In Walker v. Budden (sup.) the Court of Appeal said: As the defendant did not appear in the Queen's Bench Division pursuant to the notice of motion, the appeal to this court cannot be heard; the defendant must apply to the Queen's Bench Division." The same principle was enunciated by Sir George Jessel, M.R., in Allum v. Dickinson (sup.).

66

In Hession v. Jones (sup.) Bankes, J. drew a distinction between the two branches of the principle, and that case was another example of the second branch. Re St. Nazaire Land Company (sup.) and Preston Banking Company v. Allsup and Sons (sup.) have really no application to the present case, for in these cases, as in Re Roberts; Evans v. Thomas (sup.), both parties had been present at the hearing.

There is, in the present case, a narrower ground. Mr. Kennedy admitted that there was jurisdiction before the order was drawn up. An application was made to Bray, J. on the 2nd Feb., before the order was drawn up, and was still under consideration when it was drawn up. One of the reasons given by Bankes, J. for his decision in Hession v. Jones (sup.) was that the order had been drawn up. It appears from Walker v. Budden (sup.) and Re Grove (sup.), in both of which the orders must have been drawn up, that in cases falling within the branch of the principle applicable to this case the court has jurisdiction, even though the order has been drawn up.

SALTER, J.-I agree, and I do not wish to add anything.

BRANSON, J.—I agree. Appeal dismissed.

Solicitor for the defendant, W. J. Tabrum. Solicitors for the plaintiff, McColm and Brooke.