against "the owners" (they not being named or designed in the instance), the pursuer before asking for decree should be bound to amend the instance by adding the names and designations of the registered owners after (in the case of an undefended action) such intimation as the Court may prescribe.

In Chapter VIII of this Report we make recommendations for the simplification and cheapening of procedure by dispensing with separate actions of furthcoming, and of sale, in the case of arrestments of moveables and ships. It is sufficient meantime merely to refer to these and other suggestions for improvements in procedure relative to arrestments.

(1) THAT, FOR THE ENFORCEMENT OF MARITIME LIENS, A SIMPLE ACTION in rem SHOULD BE INTRODUCED ;

(2) THAT IT SHOULD BE MADE COMPETENT TO COMBINE THIS ACTION WITH CONCLUSIONS in personam;

(3) THAT IT SHOULD BE MADE COMPETENT TO OBTAIN DECREE in personam AGAINST ANY OF THE OWNERS WHO APPEAR IN A SIMPLE ACTION in rem.

Arbitration proceedings.-A number of suggestions for the extension of the jurisdiction of the Court of Session were put before us in connection with arbitration proceedings.

Of these the most novel was the establishment of an Arbitral Court in the Outer House of the Court of Session. The suggestion was to make one of the Lords Ordinary an official arbitrator with power to summon a technical assessor to sit with him when necessary-his decision upon any dispute submitted to him to be final in the same way as a Scottish arbiter's award is at present. An essential feature of this project was that the official arbitrator should not be strictly bound by legal precedent, and that his decisions should not themselves be binding upon him in other cases. The difficulty-which we regard as insuperable-of uniting in the same tribunal the qualities of the arbitrium boni viri and the judicial functions of a court of law plainly appears from this feature of the suggested Arbitral Court. We do not see our way to make any recommendation on this head.

The really serious criticism of the present system of arbitration in Scotland arises out of the fact that a Scottish arbiter's award is as final and conclusive on matters of law as on matters of fact. When a Scottish arbiter finds himself confronted, unexpectedly it may be, with a serious legal question on the solution of which his award may wholly or in part depend, he has no alternative but to give effect to his own notion of what the law ought to be, unless indeed he seeks such assistance as can be got from a professional adviser of his own selection. In the one case, he runs grave risk of error; in the other, he mitigates that risk, but at the cost of surrendering his own judgment (to which alone the parties have appealed) to the opinion of an outsider. Moreover, a Scottish arbiter is bound to exhaust the reference by making

an award upon the whole questions submitted to him, and the Courts enforce this obligation upon him. The only relief open to him in what is sometimes a position of much difficulty is in the case of a question with regard to the competency of a particular claim, as being within, or not within, the scope of the matters referred to him. In such a case his proper course is to make an alternative award so as to exhaust the reference on each of the possible views of his competency, leaving the parties to obtain a decision from the Court as to which of the alternatives fits the true scope of the reference. This is not, however, a common case, and does nothing to meet the criticism spoken of above. In England, on the other hand (particularly under the Arbitration Act, 1889), there are ample facilities for submitting legal questions arising in the course of an arbitration for decision by the Court. Besides. any award can be set aside in England if an error in law appears on the face of it. Accordingly, various proposals were made in the course of the evidence for amending the law in Scotland in the direction of the English Act of 1889. They followed (more or less) the lines adopted in numerous recent Acts of Parliament in which the Legislature has attempted the task of reconciling the employment of lay arbiters for the settlement of disputes between particular classes of persons with the maintenance of consistency in the interpretation of intricate statutory provisions set up to regulate, or even to constitute, the legal relations between them.

According to one type of these proposals, the parties to the arbitration, or either of them, should have the right to require the arbiter to submit to the Court of Session any question of law emerging in the course of the proceedings, before making his award. According to another, the arbiter should be empowered, in his own discretion, to obtain such a decision in any case in which he may consider that course to be necessary to enable him to arrive at a right award. Proposals of the former kind seem to us to be inconsistent with the contract of arbitration as understood in Scotland. Parties are free to enter into such a contract, or to resort to the Courts of Law, as they choose. It is true that, when Parliament interferes to exclude the ordinary jurisdiction of the Court and forces the parties concerned in a particular class of dispute to submit to compulsory arbitration, it becomes indispensable to allow them the opportunity of seeking a remedy against the legal misconceptions of the arbiter, in selecting whom they had no choice, or only a restricted one. But if, of their own free will, they prefer an arbiter of their own selection, rather than a legal tribunal, to settle the controversy between them, they take, open-eyed, the risk of the disadvantages which are inherent in that course; and in cases where technical considerations provide the real bone of contention, the risk is small. There is no doubt that many disputes which are not suitable for disposal in this way are nevertheless settled by arbitration. But we think the true remedy for this must be sought, rather in expediting procedure and in cheapening resort to the Court, than in curtailing

the freedom of parties to choose between arbitrium and judicium as the means of reaching a settlement of their differences.

There is more to be said in favour of the second kind of proposal; but we doubt if it would be found to work satisfactorily in practice. It would be impossible to lay down the conditions in which it would be the duty of the arbiter to state a case. Some arbiters are more confident, some more diffident, than others in their capacity to apply legal principles with which they may have only a bowing acquaintance; and, in any case, it would be a rather invidious duty for the arbiter to make the choice between himself and the Court as the tribunal to determine a particular question—especially in view of the additional cost involved in stating a case for the Court, which it would of course be for the parties to meet. We think the result of carrying this kind of proposal into effect would be to introduce into arbitration procedure a most undesirable element of uncertainty. It is no doubt detrimental, from a broad point of view, that the jurisdiction of the ordinary Courts of law with regard to matters which are appropriate for their authoritative determination should be ousted by private agreement. But on the whole we think it is the safer course to leave the system of arbitration in Scotland as it is, notwithstanding its disadvantages, as a method of settling disputes distinct and separate from that provided by the regular legal tribunals of the country. Our impression is that to introduce amendments of the law such as those contained in the English Arbitration Act of 1889 would not be consonant with the present state of public opinion in Scotland. WE DO NOT, ACCORDINGLY, RECOMMEND ANY INTERFERENCE WITH THE EXISTING SYSTEM OF ARBITRATION IN SCOTLAND.

Applications for Directions by Trustees, etc.-Many of the witnesses who appeared before us urged the desirability of an extension of the jurisdiction of the Court of Session so as to provide greater facilities for trustees, tutors, curators, factors, and others entrusted with the administration of estates, obtaining directions with regard to the management and disposal of the property under their charge.

The only proceeding of this sort at present available to trustees is that which was originally contained in Section 18 of the Judicial Factors Act, 1889 (52 and 53 Vic. c. 39), and now forms section 17 of the Trusts Act, 1921 (11 and 12 Geo. V c. 58). Under it, it is possible to obtain the directions of the Court upon any question that may arise in the administration of the trust regarding (1) the investment of the trust funds, and (2) the distribution thereof among the creditors interested and the beneficiaries under the trust. But even this limited power is conditional upon the trustees having first obtained an order on the Accountant of Court to superintend their administration in so far as it relates to the two matters above mentioned, and is conferred, not upon the trustees, but on the Accountant of Court in whose discretion it is to apply. It is a significant circumstance that this power of seeking directions has proved abortive in practice.

In view of the large measure of support for the proposal under discussion, that came from professional and other witnesses, we have given much consideration to it with every desire to meet what appeared to be a general demand. In the course of our deliberations, we found ourselves compelled to rule out anything in the nature of the administration suit familiar in England, partly because of the burden of expense it places on the administered estate, and partly because we do not think it would prove acceptable in Scotland. We also found ourselves compelled to rule out anything in the nature of ex parte applications, partly because it seemed to us to be inexpedient that decisions should be given-affecting either the administration of an estate, or the rights of those beneficially interested in it-in circumstances in which the decisions cannot bind all parties concerned, and also partly because we think it undesirable to encourage trustees and other persons in a fiduciary position to incur the expense of possibly frequent-and always inconclusive-applications to the Court in the hope of avoiding risk of personal liability. The result of this exclusion of ex parte applications is to restrict the feasibility of applications for directions to those cases in which it is possible to convene all the parties interested.

The matters upon which it is suggested that directions would be useful fall into two categories: (1) What is the most prudent course of management of the estate? (2) What are the powers and duties of the trustees, and how should the estate be distributed among the persons beneficially interested in it?

The first of these matters belongs to the sphere of sound discretion and practical judgment, aided by skilled advice. We do not see what better qualifications the Court could have in this sphere than those possessed by the person or persons to whose discretion and judgment the management of the estate has been legally entrusted. Indeed we think the advantage would lie with the actual administrator, who must be familiar with the circumstances and prospects of the estate in a way in which the Court could not be. This difficulty appears to us to be insuperable; and it was illustrated by the last case in which an attempt was made by the Accountant of Court to obtain directions under Section 18 of the Judicial Factors Act, 1889-namely, the case of Earl of Stair's Trustees (1896, 23 R. 1070).

The matters falling within the second of the two categories mentioned above resolve themselves into questions of law. Once it has been decided not to introduce the administration suit, and to eschew ex parte applications, it is obvious that the existing facilities for obtaining powers by petition, and for obtaining a decision of disputed questions by Special Case, or by action of Declarator, or action of Multiplepoinding, cover the remaining field. We have endeavoured, in various parts of this Report, to indicate ways in which those facilities could be cheapened; and little or no purpose would be served by inventing mere alternative methods of procedure. It was pointed out to us that difficulties in administration sometimes arise from the circumstance that,

in consequence of the contingent interests in the estate of persons yet unborn, the decision of questions which not only affect those interests, but have a material bearing on the course of administration in the meantime, has to be indefinitely postponed. The trustees are, of course, the guardians of such contingent interests; and if the precise character and extent of the contingent interests are obscure, it is possible that the administration and distribution of the estate may be hampered and held up for a course of years. The proposal made to us was that in such cases the Court should appoint an independent representative of the unborn persons and that he should have power to concur in the presentation of a Special Case, judgment in which would be conclusive against all the parties, including the unborn persons represented by him. It is already the practice for the Court in certain circumstances to appoint tutors and curators ad litem to minors and pupils whose interests are concerned in a Special Case; but the proposal to extend this power to the case of persons yet unborn is a large one, and we are not satisfied that it would be expedient, especially as the cases in which such questions arise are few.

On the whole matter, we find ourselves, with regret, UNABLE

TO RECOMMEND ANY NEW FORM OF PROCEDURE IN THE NATURE OF APPLICATIONS FOR DIRECTIONS.

CHAPTER III.

ARRANGEMENT OF BUSINESS IN THE COURT OF SESSION AND BILL CHAMBER; AND

CONTROL OF PROCEDURE.

Distinctions in Function between Inner and Outer Houses and Bill Chamber-- Cases Initiated in Court of Session mainly of two kinds, viz. Summonses and Petitions-Present Assignment of Summonses and Petitions to Inner House, Outer House, and Bill Chamber respectivelyProposed Abolition of Specialties affecting certain types of ActionsAbolition of Bill Chamber-Transfer of all Original Jurisdiction to Outer House, subject to a few specified exceptions-Present Distribution of Work-Roll-keeping and Clerical Staffs-System of "Marking and its Defects-Desirability of Control and Distribution of Business from a Unified Office-The suggested departments of the Unified OfficeControl of Forms and Procedure-Powers of Court-Rules Council.

THE arrangement of judicial business, and the disposal of the judicial and clerical staffs of the Court, are matters closely dependent upon each other. As has already been seen, the disintegration of the compact body of fifteen judges which constituted the original Court of Session into an Inner House of two Divisions with mainly appellate functions, and an Outer House composed of a number of permanent Lords Ordinary acting as judges of first