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agent to the vendors, a deposit of £10 per cent., upon and in part payment of the purchase-money, according to the ENCE TO ARBIconditions therein and herein next following. 4th, The purchaser to pay such remainder of the purchase-money on the 25th day of March, 1836, at the bank of Messrs., in, and be entitled to enter into the receipt of the rents and profits from that time; and if, from any cause whatsoever, the completion of the purchase should be delayed beyond the 25th day of March, 1836, the purchaser should be considered landlord of the estate from that time, and should receive the reserved rent under the lease, but should pay interest on the remainder of the purchasemoney, at £4 per cent., per annum, from Lady-day then next to the day of payment and completion of the title. 5th, The vendors to make out a good title, subject to the therein and herein last preceding condition; and deliver a full abstract thereof to the purchaser, in two months from the day of sale. 8th, The estate then offered for sale, being under a lease for forty-two years, one year whereof would be unexpired at Lady-day then next, the same was therefore sold, subject to such lease, and also to the perpetuated land-tax; and if there were any small, chief, or quit-rents payable thereout, the same was sold, subject thereto, and without any deduction to be made from the purchase

money on account thereof: AND WHEREAS, the said A. B. —purchase, at and C. D. attended the said sale, and being the highest the sale, by the bidders for, were declared the purchasers of the said first part; houses, cottages, lands, hereditaments, and premises, at

£

or for the price or sum of £7,600, and immediately thereupon paid into the hands of the auctioneer, the sum of as and in respect of the auction duty on the said sale, and also paid to W. B., gent., the agent named in the said conditions of the said sale, the sum of £760, as a deposit of £10 per cent. upon and in part payment of the said purchase-money, and at the same time the said W. B., as such agent as aforesaid, and the said A. B. and C. D. signed a memorandum in writing of the said sale and purchase, such memorandum bearing date the day of the said

sale, and being annexed to the said conditions: AND act of parlia

FOR REFER

WHEREAS, upon the abstract of the title of the said E. F. ENCE TO ARBI and G. H. to the said mills, dwelling-houses, cottages,

TRATION.

ment under which the sale was made;

-that purchasers are advised that the

sale was not au

thorized by the

act;

lands, hereditaments, and premises, being delivered to the
said A. B. and C. D., as such purchasers as aforesaid, it
appeared that the said sale was made under the authority
or the supposed authority of an act of parliament, made
and passed in the seventh year of his late Majesty King
George the Fourth, intituled, "An Act for enabling the
trustees under the will of J. M., Esq., deceased, to sell the
manor of P., in the county of D., with divers estates within
the parish and manor of P., and for applying the monies to
arise from the sale thereof, in the purchase of other estates
in the county of D., to be settled to the subsisting uses of
the said will;" and which act received the royal assent on
the 12th day of March, 1827; by which act, after (among
other things) noticing that the therein mentioned two cot-
ton mills, and the houses, mills, dams, and fifteen acres of
land or thereabouts, attached thereto, (thereby meaning
the mills, dwelling-houses, cottages, lands, hereditaments,
and premises, so put up for sale as aforesaid), were then
under lease, of which ten years would remain unexpired at
Lady-day then next, (meaning thereby Lady-day, 1827), at
the very low rent of 40s., and that the same, by reason of
such existing lease, could not then be sold to advantage,
it was (among other things) enacted, that the said two
cotton mills, and the houses, mills, dams, and fifteen acres
of land or thereabouts, attached thereto, with the appurte-
nances, should be, and the same were thereby vested in and
settled upon the said E. F. and G. H., their heirs and as-
signs, for ever, upon trust at any time or times after the
end or other sooner determination of the existing lease of
the said cotton mills, houses, mills, dams, and fifteen acres
of land or thereabouts, to sell the same with their appur-
tenances, as in the said act mentioned: AND WHEREAS,
(as appears by the recitals hereinbefore contained), the
aforesaid sale was made so as to take effect from the 25th
day of March, 1836, the same being the period of one year
before the expiration of such lease, and in consequence, the
said A. B. and C. D., being advised that without reference

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to any other question relating to the title to the said mills, dwelling-houses, cottages, lands, hereditaments, and premises, the said E. F. and G. H. were not authorized under the provisions of the said act of parliament to make the aforesaid sale, objected to complete the said purchase, insisting that they the said purchasers would not be safe in so doing without the sanction and indemnity of a court of equity, and further insisting that even although a court of equity should think the said sale a beneficial sale for the parties for whom the said E. F. and G. H. were trustees, and, consequently, should be willing to sanction and confirm the same, still the said A. B. and C. D. ought not to be compelled to complete the said purchase, since, had the purchased property risen in value, the said trustees would not have been allowed to carry into effect the said sale to the prejudice of the parties for whom they were trustees, and consequently, the said A. B. and C. D. would not have been allowed the benefit of such rise in value: AND WHEREAS the said A. B. and C. D., and their partners, being in possession of the said purchased premises, by virtue of the aforesaid lease, the said A. B. and C. D., upon the faith of a good title being made out to the said premises, did, after the said sale, with the privity of the said E. F. and G. H., make certain alterations in or about the said messuages, in respect of which alterations, the said A. B. and C. D., claim a compensation (d): AND WHEREAS in that purconsequence of the said E. F. and G. H. declining to rescind the said sale, an action hath been commenced against them by the said purchasers, in her Majesty's Court of Queen's Bench at Westminster, for the recovery of the said sum of £760, so paid by way of deposit as aforesaid, with interest for the same, and the costs, charges, damages, and expenses expended, sustained, and incurred by the said A. B. and C. D., in and about the premises, which

(d) Generally speaking, a purchaser who has been let into possession of the estate, and has laid out money in lasting improvements, is entitled to compensation for those improvements, if the vendor's title turn out defective. (Ex parte Hughes, 6 Ves. 617; 2 Sugd. V. & P. 266; and the cases there cited).

-that purin possession of chasers, being the property,

have laid out

money thereon;

chasers have brought an action for their deposit, &c.;

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ENCE TO ARBI

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-that it has

been agreed to

action is still pending: AND WHEREAS for the ending and settling of all difficulties in and about the premises, the said parties hereto have respectively agreed to make and enter into the reference to arbitration and provisions hererefer matters to inafter respectively mentioned and contained: NOW THIS INDENTURE WITNESSETH that, in pursuance of the said agreement, and in consideration of the premises, they the said E. F. and G. H. (e) do for them

arbitration.

Witnesseth mutual covenants by parties.

Reference to arbitration by trustees,

-by guardians,

-by executors,

(e) It is the constant practice for trustees to refer matters to arbitration, without having any special authority for so doing. By such reference, of course, they are personally bound, and are liable to be compelled by the usual process to perform the award, but it is apprehended that an award made under a reference by trustees, is not binding on the cestui que trusts, and may be impeached by them if they do not choose to acquiesce in it. Trustees should never be advised to refer disputes to arbitration, because they may, by so doing, render themselves liable to perform acts which are at variance with their duty, and, because it is their business to judge themselves what conduct is for the advantage of their cestui que trusts, and not to leave the matter to the decision of strangers. It is not clear that trustees would be compelled specifically to perform an award, without inquiring whether such a course would be for the benefit of the trust estate. (See Bristow v. Binns, 3 Dow. & Ry. 184).

It has been decided that an award made upon a reference by a guardian, is not binding on an infant; (Cavendish v. 1 Cha. Ca. 279; S. C. 1 Eq. Ca. Abr. 49; Biddle v. Dowse, 6 B. & C. 255); but the guardian may bind himself to perfom the award. (Roberts v. Newbold, Comb. 318; see, however, Bristow v. Binns, ubi supra; Bishop of Bath and Wells v. Hippersley, cited 3 Atk. 614). It has been doubted whether an award made under a reference by an infant is void, or merely voidable as against the infant; (see 7 Bac. Abr. Void and voidable (C.); Watson on Arbitration, 53); but it is not easy to see how the doubt has arisen, or on what principle an award made under a reference by an infant can be deemed to be otherwise than void. (See Bowyer v. Blockridge, 3 Lev. 17; Godfrey v. Wade, 6 J. B. Moore, 488). In the case of a married woman, the Court of Chancery will not permit a reference to arbitration. (Davis v. Page, 9 Ves. 350; Watson on Arbitration, 56).

If an executor submits matters to arbitration, he is personally bound, and if the arbitrators award him to receive less than his testator's estate is entitled to, he must make up the deficiency, as in case of a devastavit. (Anon. 3 Lev. 53, Com. Dig. Administration, (I. s.); Bac. Abr. Executors, L. 1; Williams's Law of Executors, 1108, 1st edit.) And it

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selves, their heirs, executors, and administrators, and each of them doth, for himself, his heirs, executors, and admini- ENCE TO ARBIstrators, (but so far only as the covenants and agreements hereinafter contained, are to be observed or performed by, or are applicable to them, or either of them, their, or either of their heirs, executors, or administrators), hereby covenant with the said A. B. and C. D., their heirs, executors, and administrators; and the said A. B. and C. D. do for themselves, their heirs, executors, and administrators; and each of them doth for himself, his heirs, executors, and administrators, (but so far only as the covenants and agreements hereinafter contained are to be observed

is apprehended that the effect is the same, if the award is that the executors should pay more than they ought to pay.

In most wills where the winding up of the testator's estate is likely to give rise to questions of a difficult nature, a special power to refer to arbitration is given to the executors.

An executor who refers matters to arbitration, should always take care that the reference is so worded as only to render him liable to perform the award, if he has sufficient assets. For if he refer generally, without such a limitation, he will be personally bound to perform the award, whether he has assets or not. (Barry v. Rush, 1 T. R. 691; Worthington v. Barlow, 7 T. R. 453; Riddell v. Sutton, 5 Bing. 200; 1 Williams's Law of Executors, 1097, 1098; Watson on Arbitration, 60).

The assignees of a bankrupt, are, by the stat. 6 Geo. 4, c. 16, s. 88, empowered, with the consent of the major part in value of the creditors, to refer matters to arbitration, and by the stat. 1 & 2 Will. 4, c. 56, s. 43, an agreement of reference may be made a rule of the Court of Bankruptcy. (See Archbold Bankrupt Law, 353, 354).

by assignees

of a bankrupt,

The recent stat. 1 & 2 Vict. c. 110, s. 52, empowers the assignees of an insolof insolvents, with the consent of the major part in value of the vent.

creditors, to refer matters to arbitration; and there was a similar

clause in the act 7 Geo. 4, c. 57.

It would, probably, be held, however, that the provisions in the above acts, as to the consent of the creditors, are for the benefit of the creditors alone, and that if assignees choose to refer to arbitration without such consent, they would be personally bound to perform, and would be entitled to enforce the performance of the award. (See Casborne v. Barsham, 6 Sim. 317).

As to submissions by corporations and charities, see Watson on Arbitration, 58, 59; and by attornies, solicitors, agents, and partners, Ibid. 65. 67.