8 and 9 Vict. c. 17.

Defects in form.

Disposal of penalties, and appeal.

the enforcement of such regulations or bye-laws before the sheriff or justices of the peace.

The provisions of the Companies Clauses Consolidation (Scotland) Act on these matters are as follows:-The company are required to publish on a board, set up in a conspicuous part of their principal place of business, short particulars of the offences for which penalties are imposed by their special acts or bye-laws on the public; and unless this has been done and kept legible, the penalties cannot be recovered. When the penalties apply to offences committed in particular localities, they must be posted in such localities (sec. 147) (@). Penalties are imposed on such as deface or obliterate the boards (sec. 148). A summary mode of recovering penalties is provided before the sheriff or two justices (sec. 149); and if not immediately paid, they are levied by poinding and sale (sec. 150). Offenders when convicted may be detained by order of the sheriff or justices until return is made to the warrant of poinding and sale, unless they can find security by recognizance or otherwise for appearance on such return; and if, before issuing the warrant of poinding and sale, it appear that sufficient goods whereon to levy cannot be found within the jurisdiction, or if the warrant, when issued, prove inoperative, the offenders may be imprisoned for three months unless the penalties be sooner paid (sec. 151). When penalties or other sums have been levied by poinding and sale, the surplus must be paid on demand to the party whose goods have been seized (sec. 152) (b). No poinding and sale, nor summons, conviction, warrant, or other relative proceedings, are deemed unlawful from want of form; but, at the same time, such defect or irregularity may ground an action of damages in the Sheriff Court (sec. 153).

When the disposal of penalties is not otherwise provided for, one half may be awarded to the informer, and the residue to the kirksession (sec. 154). Penalties must be sued for within six months (sec. 155). Damages may be claimed in addition to penalties (sec. 156). Witnesses refusing to appear or to be examined on oath forfeit a sum not exceeding £5 (sec. 157). Offenders whose names and residences are unknown, may be summarily apprehended and

(a) See Bye-Laws, supra.

(b) See as to application of the 'Summary Procedure (Scotland) Act,

1864,' to cases of this kind, Craig v. Great North of Scotland Ra. Co., 20 Nov. 1865, High Court of Justiciary.

proceeded against (sec. 158). The Sheriff proceeds summarily in all cases under the Act without abiding the course of the roll, and without written pleadings, or reducing the evidence to writing, unless he see fit; and proceedings so taken are not liable to review by suspension, advocation, or reduction on any ground whatever (sec. 159). A form of conviction is given in Schedule G. No proceedings under the general or special acts can be quashed for want of form, or removed into a superior court by suspension or otherwise (sec. 161). But when the proceedings have been in writing, an appeal lies to the Sheriff from his substitute, who may hear the parties viva voce, subject, however, to no further review (sec. 162). Appeal also lies from the Justices to the Quarter Sessions, if made within four months, and on ten days' notice in writing to the opposite party, provided the appellant enter into recognisances with two sufficient sureties, to prosecute the appeal, and abide the judgment (sec. 163). The Quarter Sessions may hear and determine the appeal at once, or may adjourn it to the following sessions, and may confirm, quash, or mitigate the sentence, dealing with sums already levied, costs, and damages as they see fit (sec. 164).

against com

Provisions are also made by the same statute for the more Damages effectual and speedy recovery of damages or expenses exigible from pany. the company by reason of any irregularities, trespasses, or other wrongful proceedings done in the exercise of the statutory powers, and not otherwise provided for. These provisions are as follows:

Court.

The company, or any persons acting on their behalf, who have Payment into rendered themselves liable to prosecution for irregularities, trespasses, or other wrongful proceedings under any of the provisions of the general or special acts, may prevent action being raised against them by tendering sufficient amends; and if action has already been raised, they may before the record is closed pay into Court such sum of money as they shall think fit, by leave of the judges, and the effect of this will be the same as in ordinary cases where this course is adopted (sec. 143).

tained and

recovered.

Where provision is not otherwise made for ascertainment of How ascerdamages, costs, or expenses accruing under the Act, they are determined by the Sheriff; and if not paid within seven days after demand, they may be recovered under warrant of the Sheriff, by

Jurisdiction.

25 and 26 Vict. c. 89.

poinding and sale of the goods of the company or other party liable (sec. 144). In default of sufficient company goods on which to levy the amount decerned for, it may be recovered by poinding and sale of the goods of the treasurer, provided that it does not exceed £20, and that he has been served with a written notice and demand for the amount seven days previously. The treasurer is entitled to indemnity against the company for payments so made or levied, and he may make it good either by retention or action (sec. 145).

When questions of damages, expenses, or charges fall to be determined by the Sheriff or two Justices, the defender may be summoned on the warrant of the Sheriff or any Justice; and decree or award pronounced by the Sheriff or two Justices in foro or in absence is final (sec. 146).

The Companies Clauses Act of 1862, though it refers merely to companies incorporated by registration, contains the following provisions for the summary recovery of penalties for offences inter socios:

All offences involving penalties may be prosecuted summarily in Scotland, before two or more Justices, or the Sheriff or Sheriffdepute of the county, in manner directed by 17 and 18 Vict. c. 104, or any Act amending the same (sec. 65), not being offences described as felonies or misdemeanours. The Sheriff or Justices may direct the whole or part of the penalties to be applied in payment of costs or in rewarding informers; but in default of such direction they are paid into Exchequer (sec. 66).

CHAPTER X.

ARBITRATION.

PRIVATE FIRMS AND COMMON LAW COMPANIES.

observations.

THOUGH individual partners have no implied powers to refer General to arbitration matters in which their companies are concerned; and though it is even doubtful whether such a power may on mere implication be competently exercised by majorities so as to bind dissenting members, it is not unusual to confer it by the instrument of formation on majorities, officials, or managing partners. When this has been done, the powers so conferred will bind the company, provided they are exercised by the persons and in accordance with the provisions stipulated; nor is it probable that the courts will in a question with third parties permit the company to take advantage of informalities, to escape from obligations so created. It would be jus tertii for a third party to found on such informalities.

It is also a common practice to introduce into the articles of association or deed of copartnery, clauses whereby disputes arising inter socios or between the company and its members or their representatives are required to be referred to the arbitration of certain specified persons. Such stipulations, when properly expressed, are binding, and will exclude to a great extent the jurisdiction of the ordinary tribunals (a). To be effectual, however, they must be conceived in very explicit terms; and they must contain a specific reference to persons named. Thus a clause in a contract of copartnery, referring all future disputes to the chairman, etc., of the Glasgow Chamber of Commerce for the time, was held to be

(a) Cooper v. Bertram, Shotts Friendly Society, 1825, 3 S. 454; Manson v. Doull, 1840, 2 D. 1015.

Clauses of

submission in

contract of

copartnery.

Rules as to arbitration.

ineffectual, the reference not being to an individual, and the reference as well as the point to be decided being indefinite at the date of the contract (a). In like manner, an obligation to refer to two neutral persons was held to be insufficient to bar action (b).

Arbitration between companies and the public, or their own partners, are in general regulated by the same rules as apply in cases of ordinary submissions, and will be found in any work on arbitration (c). There are, however, some peculiarities to which we shall briefly advert. An arbiter is in general disqualified by being a partner (d). It is no objection, however, to an arbiter, that as partner of a company he is creditor to a small extent of an insolvent party, in whose favour decrce is pronounced (e). It was found to be no objection to a decree-arbitral against a company, that it was pronounced after the sequestration and death of the sole partner, notice having been given to the trustee and representatives, who declined to appear (ƒ). It does not seem ever to have been judicially settled, but there can be no doubt that a submission may be prorogated by the acts of one active and known partner, such power plainly falling within the implied agency. In a judicial reference of an action against a partner for payment of two calls of stock, it was held that as the referee had decerned for payment of both calls at one time, whereas, by the statute constituting the company, an interval of one month should elapse, the decree was invalid, except as to the first call, and was in other respects conditional and inconclusive (g). It was held that a submission in a contract of copartnery, of any difference which shall arise between the partners themselves, did not apply to an action by one partner against the other for illegal, fraudulent, and malicious violations of the con