It is argued in this case, that there has here been equal fault on the other side, and that Lord Eldon, from whom every word that has fallen is entitled to the most profound attention, has said, that if an act of this sort is called in question, the party who seeks relief ought not himself to be to blame. It is stated, on this occasion, that in the matter of this reference, Mr. Harvey, who now complains, has himself been guilty of just the same erroneous conduct as Mr. Shelton, and that as to Mr. Shelton it was not his spontaneous act, for that he remained passive until he was invited by the Arbitrator to attend. The truth of this matter does not appear satisfactorily upon the affidavits; but with respect to the letter of the 19th of January 1844, I cannot allow such a matter to pass without expressing my disapprobation of it. Mr. Harvey, in my opinion, was acting extremely wrong in writing such a letter to the Arbitrator, unless he sent a copy of it to the other side; I conceive that he was at liberty to make his own representation, provided he imparted it to the other side, but otherwise it was wrong. This sort of misconduct sometimes, though rarely, occurs here; long statements are occasionally sent to me by one side; but I hand them over to the other side, and take care that no kind of communication is made to me without the other party knowing it. I think the Arbitrator should have done so with that letter, and there being no proof that it was ever sent to Mr. Shelton, I cannot let the circumstance pass without expressing my disapprobation.

Though there was some statement made to the Arbitrator by Mr. Harvey, I do not know what it was, unless I can collect it from the letter of the 19th of January; but assuming a private statement to have been made, I must add, that if there had also been a private interview, and an erroneous and improper private interview,

Hh 4

1844.

HARVEY

v.

SHELTON.

1844.

HARVEY

v.

SHELTON.

view, between Mr. Harvey and the Arbitrator, I should have found it very difficult to say, that this species of misconduct on the one side was to be an excuse for the mode of proceeding which was adopted on the other. This is not a matter of mere private consideration between two adverse parties, but a matter concerning the due administration of justice, in which all persons who may ever chance to be litigant, in courts of justice or before arbitrators, have the strongest interest in maintaining that the principles of justice shall be carefully adhered to in every case.

Under these circumstances, I am of opinion that this award cannot stand, and I must therefore grant this motion.

Another point arose in this discussion, with regard to the time at which the application was made, and which it is thought convenient to separate from the other points in the case,

By the 9 & 10 W. 3. c. 15. s. 2. any arbitration or umpirage, procured by corruption or undue means, shall be judged and esteemed void and of none effect, and accordingly be set aside by any court of law or equity, so as complaint of such corruption or undue practice be made in the Court where the rule is made for submission to such arbitration or umpirage, before the last day of the next term after such arbitration or umpirage made and published to the parties.

The award was made on the 18th of February 1844, and communicated on the 30th March. On the 15th April 1844, Shelton moved, pursuant to the terms of the award, to dismiss the bill without costs, but Harvey ob

jecting,

jecting, that neither the reference nor the award had been made orders of Court, the motion was ordered to stand over.

On the 18th of April, the reference and award were, ex parte, made orders of Court.

On the 8th of May (which was the last day of the next term after the award had been made and published) Shelton's motion to dismiss was brought on, when Harvey's counsel stating that he had objections to the award, the motion of Shelton was ordered to stand over till the first day of the following term, and liberty was given to Harvey, if he should be so advised, to give notice of motion to dispute the award. He gave notice, accordingly, of the present motion on the 18th of May.

It was now (on the 3rd and 4th of July) objected, on the part of Shelton, that the time limited by the statute (9 & 10 W. 3. c. 15. s. 2.) having expired, the award could not be now set aside: Rushworth v. Barron (a); and that the time could not be extended. Auriol v. Smith (b), Allardes v. Campbell. (c)

On the other hand, it was said, that the time allowed by the statute had been extended by the leave given on the 8th of May; that the order to make the submission a rule ought to have been obtained before the award had been made (d), and that the motion to make an award an order of Court was not a motion of course,

(a) 3 Dowl. P. C. 317., 1 Har.

& W. 122.

(b) Turn. & R. 121.

but

(c) Bunb. 265., Barn. K. B. 152., and Tur. & R. 135 n.

(d) Pownall v. King, 6 Ves. 9.

1844.

HARVEY

v.

SHELTON.

1844.

HARVEY

v.

SHELTON.

but a special motion to be made upon notice. Wilkinson v. Page. (a)

The MASTER of the ROLLS.

The question is, whether such a complaint has been made within the time limited by the statute, as to enable the party to have the benefit of his objection to the award. I think, under the circumstances, that I must consider there was a sufficient complaint. There was a motion for a proceeding to carry the award into execution, which was brought on upon the very last day, on the day on which the time expired within which application could be made for relief. The order asked was then resisted, by an allegation, made in Court of a complaint against the award, and a request was made that an opportunity might be given for making a regular and formal application. I think, under the circumstances, I must give weight to that, though I confess it does not appear so clear as one would wish it to be.

The form of the order was next brought to the consideration of the Court, and it was argued that the order should be drawn up nunc pro tunc.

The MASTER of the ROLLS directed the order to be drawn up as of this day, and the facts relating to the different applications to be stated on the face of the order. He, however, gave no costs.

(a) 1 Hare, 280.

1844.

THE

MACKENZIE v. TAYLOR.

HE testator gave his residuary personal estate to his executors and trustees, upon trust, as soon as convenient after his death, to convert into money, and invest the same. One moiety of the residue was given to Mr. Newton, and one fourth was given to Mrs. Mackenzie for life, with remainder to her children.

The testator died in 1824, and Mrs. Mackenzie died in 1832. This bill was filed by her children against the executors and Mr. Newton for the administration of the estate. The executors, but with the concurrence of Mrs. Mackenzie, had neglected to convert and invest a part of the testator's property, but three years after her death, they accounted for the value, and paid the amount into Court. This gave rise to the first question.

It ap

On the

July 17.

Executors di

rected to con

vert and invest the testator's lowed it to be property, alenjoyed in

specie by the tenant for life. Three years after her death, they accounted for

the value and paid it into Court: Held, that they ought to pay

interest from

the death of

the tenant for

life to the day of such pay

ment.

A residuary

estate was divisible

several

persons. An

account was the adults remade up, and ceived their

The second question was as to the costs. peared that the executors had accounted to Newton for amongst his share of the residue: being satisfied, he by his answer objected to the proceedings, and, at the first hearing, resisted the taking of any accounts. cause coming on for further directions, the costs had to be provided for; and as the circumstances of the case were not such as to render the executors liable to pay the costs, the question was, whether the costs were to be paid out of the whole residue, including that received by Newton, or out of the Plaintiffs' share only.

shares. The

infants filed a

bill for an account against the executors

and the other residuary legatees. The latter being satisfied, deMr. precated the proceedings.

The accounts turned out to be substantially correct: Held, that the costs were payable out of the Plaintiffs' share alone.