award. That cannot apply to that extent, as their terms are so different from what they are here. They have a rule that you cannot move for an attachment on the last day of term, but here an order nisi was moved for on the last day. Our July and December terms are abolished, and there is only one term in cach year. Therefore I do not think that statute can

apply.

We are here in the Equity Court. There is no term in the Equity Court. This submission provided for making it a rule of the Equity Court, and it is not merely the submission that is a rule of Court, but the award itself is a rule of Court. We are in the Equity Court, therefore, where there are no terms, and the only rule applicable to the case is that we must move in reasonable time. (RITCHIE, E. J.-The common law rule is that you should move within the same time as for a new trial.)

Our statute provides that you can make it a rule of Court, whether that is contained in the submission or not, unless a contrary intention appear. The statute of William III. is different.

As to the waiver by attending the sale, it would be a hardship if the party was bound by that. Cites 7 Beavan, 455464. The delegation of authority cannot be considered as surplusage, and struck out as suggested.

On the second appeal: There is no cause unless commenced by a writ. The term cause is not applied to cases of this sort, even after the reference is made a rule of Court. Cites 1 Hare, 276, as to attacking the award by cross motion. 2 Atk., 301.

SIR WILLIAM YOUNG, C. J., now (Dec. 11th, 1877,) read the judgment of the Court, prepared by WILKINS, J. :—

These matters came before this Court on two appeals from the Court of Equity. This Court heard them both argued together in the present term. The first was an appeal from an order made by the learned Judge in Equity in discharging a rule nisi to set aside an award made between the parties, the submission and award having been previously made a rule of the Court of Equity. The second was an appeal from an order of that Court to the effect that in case of

a refusal or neglect by the defendant, Paint, to execute within a specified period, a deed in the order named,--the execution of a deed by him after a sale of land ordered by the award having been directed by the arbitrators,-the same should be. executed by a Master of the Court.

First as regards the first order appealed from. No less than sixteen grounds of appeal are stated in the petition for appeal. The written decision of the learned Judge in Equity was read at the argument. Among other reasons for his judg ment he expressed an opinion that, even assuming the award to be open to any of the objections urged against its validity, the motion to set it aside had been made too late. The award appeared to have been made on the 28th September, 1875, and the order nisi to set it aside was not obtained until the 13th of March, 1876. The learned Judge considered the effect of 9 & 10 William III., c. 15. He reviewed the Equity and Common Law authorities, and concluded, with perfect propriety as we think, that the application to set aside having been made neither within one term after the award was published, as required by the statute, nor within the time allowed for a new trial, as would have been necessary if the submission, &c., had not been made a rule of Court, the delay precluded any objection that might otherwise have been made against the award. Independently, however, of this preliminary obstacle to impugning the award, we see no reason for differing from the learned Judge in the views expressed by him, to the effect that the conduct of the arbitrators, although in one instance marked by indiscretion, was in the whole unexceptionable. At the same time, viewing the award in the light of the submission and the evidence, I see no reason to doubt the propriety or legality of the conclusions of the arbitrators, or that these last were within the powers of the arbitrators. That appeal, therefore must, in my opinion, be dismissed with costs.

The second matter of appeal would not be without diffi culty, were it not for a statutable provision entirely unnoticed at the argument. To it I shall presently refer. The first three of the five grounds of appeal stated are, in substance, that the Court had not authority to make the order in question, because there was no cause pending in Court. A fifth

ground is in these terms, "because there is no law under which a deed executed by a Master would be valid in proceedings such as those in question." This order now before us is entitled, not in a cause, but "in the matter of the reference between William J. Fraser and Henry N. Paint." We have seen that the arbitrators directed that execution of a deed to carry out a sale directed by the award, should, when required, be made by the defendant and appellant, Paint. There was no cause and no parties before the Court in any other sense than, (the submission and award having been made a rule of the Court), that all those matters embraced by the rule of the Court, were before the Court, and had been adjudicated on, the result being the discharge of an order nisi that had been granted by the Court to set aside the award. That decision in effect declared judicially that the award was legal. The appellant, Paint, having neglected to execute a deed to effectuate the sale of land made by authority of the award, the order in question was, on motion, granted.

The effect of the 22nd section of Chapter 109, of the Revised Statutes, the provision referred to by me above, appears to me quite conclusive to establish the order appealed from. By that section, the Court, of which (as here) the submission is made a rule, is empowered to do whatever may be, required to carry the award. into effect. This award could not be carried into effect unless the sale required by it be made and perfected, and it was directed to be made and perfected by a party to the submission. He, when required by the Court to execute a deed conformably to the award, refused to do so. Thereupon the learned Judge in Equity, fully empowered to do so by the statute, ordered the execution to be made by a Master of the Court. His order to that effect must be confirmed with costs.

DURKEE v. COX ET AL.

SECTION 84 of the Insolvent Act of 1869, providing that the inspectors shall superintend and direct the assignee in the performance of his duty under the Act, &c., does not render the inspectors liable for the wrongful act of the assignee, in the asbence of evidence showing that they authorized the act complained of. Costs directed to be paid out of the estate.

THIS action was brought by the plaintiff against the assignee, (who died some time after the action was brought,) and the inspectors of an insolvent estate, for the alleged wrongful sale, by the assignee, of a vessel that insolvent had been building for the plaintiff, the title to which he alleged vested in him. The evidence taken by commission was referred to the Court for decision, and the cause was argued last Term by Weatherbe, Q. C. and MacCoy, Q. C., for plaintiff, and Rigby, Q. C., for defendant.

McDONALD, J., now (December 11th, 1877) delivered the judgment of the Court:

Cox, who was originally one of the defendants in this cause, but is now dead, was the assignee of McGill & Co., and the other defendants were inspectors of the estate under the Insolvent Act of 1869. The assignee, as such, sold the property in question, the principal part of which was a vessel then being built by the insolvent for the plaintiff, under an agreement which, as he alleges, vested the title to the property in him; and for that sale this action is brought. A large mass of evidence was taken before a commission, and was, by agreement of the parties, submitted to this Court for judgment. Several objections were taken to the plaintiff's right to recover, assuming even that the defendants Kelly and White were parties to, and authorized the sale; but with the view that I take of the case, it is unnecessary to decide the questions so raised. The plaintiff, without giving any evidence whatever of any act or word of the defendants White and Kelly, calculated to show that they either authorized or ordered the sale of the property, relies upon sec. 34 of the Insolvent Act of 1879, which provides that the inspectors "shall superintend and direct the assignee, in the performance of his duty under this Act." That section, after making other provisions not essential to this inquiry, provides that the

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directions of the inspectors shall be subject to the revision of the creditors at any meeting thereof held for that purpose.

I think that the statute referred to would not render the inspectors liable for the wrongful act of the assignee, in the absence of evidence showing that they authorized the act complained of; but, in this case, the evidence is entirely the other the other way. The defendant Kelly says, "I did not direct Cox to advertise the sale. I did not authorize the sale of the vessel, and I never, in conjunction with Mr. White, the other inspector, gave any order, verbally or in writing, to the assignee, authorizing the advertisement or sale of either the vessel or materials. I never had or exercised any possession or control of the vessel or materials, nor did I ever order any person to take possession of either." Again, Mr. White says, "I never authorized the sale of any of the personal property as inspector of the estate, either verbally or in writing, nor was I asked to do so, nor do I know that Mr. Kelly ever authorized the sale. I never had possession of any of it, nor did I ever exercise any control over it." This evidence is entirely uncontradicted, and it is impossible, in the face of it, to come to the conclusion that, because the inspectors were authorized by statute to direct the assignee in the performance of his duty, they therefore directed him to do the wrongful act complained of, assuming it to have been wongful. Judgment must be in favor of the defendant.

DESBARRES, J., read the following opinion, concurring in the judgment just pronounced:

This case comes before us under a rule entered into between the parties in November, 1876, at Yarmouth, by which it was agreed to submit all matters in difference therein between the parties to the judgment of this Court, with full power not only to decide all questions of law involved in it, but also to draw the same inferences from the facts as a jury might, and to direct a judgment to be entered for the plaintiff for such sum as might be awarded him, and for defendants in the event of its being considered that the plaintiff was not entitled to recover. The main questions involved in this case are, 1st, whether the plaintiff was the legal owner of the unfin