CHAP. 108. against the person to whom such payment shall have been made, but that such person so entitled shall have the same remedy against such person to whom such payment shall be made as he would have had against the trustee, executor, or administrator, if the money had not been paid away under such power of attorney.

Distribution of assets by execu

trator.

23. Where an executor or administrator shall have tor or adminis given such or the like notices, as in the opinion of the court in which such executor or administrator is sought to be charged, would have been sufficient in the Court of Probate, for creditors and others to send in to the executor or administrator their claims against the estate of the testator or intestate, such executor or administrator shall, at the expiration of the time named in the said notices, or the last of the said notices for sending in such claims, be at liberty to distribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such executor or administrator has then notice, and shall not be liable for the assets, or any part thereof, so distributed to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of the said assets or a part thereof, as the case may be; but nothing in this Chapter contained shall prejudice the right of any creditor or claimant to follow the assets, or any part thereof, into the hands of the person or persons who may have received the same respectively.

Liability of trustees limited to

received.

24. Every deed, will, or other instrument creating a moneys actually trust either expressly or by implication, shall, without prejudice to the clauses actually contained therein, be deemed to contain a clause in the words or to the effect following, that is to say: "That the trustees or trustee for the time being, of the said deed, will, or other instrument shall be respectively chargeable only for such moneys, stocks, funds, and securities as they shall respectively actually receive, notwithstanding their respectively signing any receipt for the sake of conformity, and shall be answerable and accountable only for their own acts, receipts, neglects or defaults, and not for those of each other; nor for any bank, banker, broker, or other person with whom any trust moneys or securities may be deposited; nor for the insuf ficiency or deficiency of any stocks, funds, or securities, nor for any other loss, unless the same shall happen through their own wilful default respectively; and also that it may be lawful for the trustees or trustee for the time being of the said deed, will, or other instrument, to reimburse themselves or himself, or pay or discharge out of the trust premises all expenses incurred in or about the execution of the trusts or powers of the said deed, will, or other instrument."

mortgage real

25. Under an order to be obtained from the Court of CHAP. 108. Equity upon grounds laid to the satisfaction of the Court, Trustees, guarit shall be lawful for trustees, guardians, and others stand- dians, &c., may ing in a fiduciary relation, to mortgage real estate or por- estate for retions thereof for the purpose of putting, keeping and pairs. maintaining the same in proper repair. And mortgages so made shall operate as securities to the holders in the same way and to the same extent as if made by the parties whose interests are represented by the mortgagors. Pro- Court may apvided that the Court shall have power to apportion the for repairs. charge for repairs, including interest on the sum borrowed, to and among the parties interested in the property, as may be just and equitable.

portion charge

to master he

with costs.

26. When any person shall, under this Chapter, apply On application to a master in the first instance, and adduce evidence for may order the service of appliobtaining a certificate as foundation for an order, the mas- cation or dismiss ter may order service of such application on any person, or dismiss it, and direct the costs of any person consequent thereon, when taxed by a judge, to be paid by the applicant; and all orders of a master under this Chapter Orders, how enshall be enforced by execution when directed by a judge.

forced.

costs to be paid

27. The Court may order the costs and expenses of, Court may order and relating to the petitions, orders, directions, convey- out of proceeds ances, and assignments, to be made in pursuance of this of lands. Chapter, or any of them, to be paid and raised out of, or from the lands or the rents or produce thereof, in respect of which the same respectively shall be made, or in such manner as the Court shall think proper.

pone order until

28. Upon any petition, under this Chapter, to the Court, Court may postit shall be lawful for the Court to postpone making any right of petiorder upon such petition until the right of the petitioner in a suit. shall have been declared in a suit duly instituted for that

purpose.

tioner is declared

new trustees for

where appoint

29. In cases where real estate has been, or shall here- Appointment of after be, conveyed in trust for erecting thereon houses for church lands, public worship, or dwelling or other houses or buildings ment is proviintended for the accommodation of ministers of the Gospel ded for." or clergymen officiating or engaged to officiate for any church or congregation of Christians, and the mode of appointing new or other trustees than the grantees is provided for in the deed of conveyance creating such trust, or otherwise in writing; when a vacancy shall occur by reason of the death, removal, resignation or displacement of any trustee, it shall not be held necessary that the remaining or surviving trustee or trustees, if any, shall make or shall have made any deed or conveyance to the newly appointed trustee, in order to invest him with the estate, functions, trusts and powers of the original trustees under such deed or declaration of trust or instrument in

CHAP. 108. writing creating such trust and directing the appointment of future or succeeding trustees; but such newly-appointed trustee shall thereupon, without deed or other conveyance, be seised in fee or other estate to the uses and trusts created, as fully and completely as were the original grantees: Provided that the terms or conditions for such appointment are duly complied with.

Where appoint. ment not provided for.

30. Whenever the mode of appointing new or other trustees than the grantees is not provided for in the deed of conveyance creating such trust or otherwise in writ ing,-when a vacancy shall occur by reason of the death, removal, resignation or displacement of any trustee,—it shall be lawful for the members of the church or congregation for whose use or in trust for whom the said property was conveyed, from time to time, as occasion shall requireat any meeting convened after public notice thereof from the pulpit of the church for two consecutive Sundays preceding such meeting or by printed notices posted in one or more conspicious places in and about the house of public worship of such church or congregation for such two preceding Sundays, which published or printed notices shall state the place and hour of such meeting and the object for which the same is convened,-by any resolution passed by not less than two-thirds of the members present, at such meeting to appoint one or more trustees in place of any trustee or trustees dying, removing, resigning or being displaced as aforesaid, in whom the trusts and powers of the original trustees under such deed or declaration of trust or instrument in writing containing such trust shall immediately vest, and who shall thereupon become seised in fee or other estate to the uses and trusts, as were the original grantees under the deed; provided always that a copy of such resolution, verified under the oath, before a justice of the peace, of the pastor or clerk for the time being of such church or congrega tion, shall be filed with the Clerk of the Peace for the county where such real estate is situate within one month after the passing of such resolution. In default of the filing of such resolution, all acts done thereunder, and all estates created thereby, shall determine and be void and of none effect.

CHAP. 109.

CHAPTER 109.

OF ARBITRATION.

trators, when

judge may en

1. The power of arbitrators, appointed under a rule or Power of arbisubmission containing an agreement that it should be irrevocable: made a rule of the Supreme Court, shall be irrevocable, large time for unless the Court or a judge shall otherwise order; and the award. Court or a judge may enlarge the time for making an award thereunder.

witnesses, how

subpœna.

2. In any case referred to arbitration, whether by rule Attendance of of court or otherwise, the arbitrators shall have power to enforced. issue subpoenas for the attendance of witnesses before them at any time or place therein named; and any person on Punishment for whom any such subpoena shall have been served, and who disobedience of shall have been tendered such fees for travel and attendance as are fixed by law for witnesses in the Supreme Court, shall be liable, in case of disobedience of such sub. poena, to the same punishment and liabilities as if the said subpoena had issued from the Supreme Court for the attendance of the witness at a trial therein.

documents: wit

3. No person shall be compelled to produce, under any Production of rule or order, any writing or document that he would not ness need not be compelled to produce at a trial, nor to attend on more two days. than two consecutive days.

attend more than

swear witnesses.

4. Arbitrators so appointed may administer oaths to Arbitrators may the witnesses.

administer oaths

not appointed

5. When arbitrators are appointed under a submission Justices may not containing any agreement that it shall be made a rule when arbitrator of court, any justice of the peace may administer oaths to under rule of the witnesses in the presence of one or more of the arbi- court. trators.

or judge, upon

direct arbitra

6. If it be made to appear, at any time after the issuing Power of court of the writ, to the satisfaction of the Court or a judge, application, to upon the application of either party, that the matter in tion before trial. dispute consists wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, it shall be lawful for such Court or judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter either wholly or in part, be referred to an arbitrator or arbitrators appointed by the parties, upon such terms as to costs and otherwise, as such Court or judge shall think reasonable; and the decision or order of such Court or judge, or the award or certificate of such referee, shall be enforce-, able by the same process as the finding of a jury upon the matter referred: and in case the parties or either of

CHAP. 109, them shall not, within the time specified in the order, appoint arbitrators, it shall be lawful for the Court or a judge to appoint one or more arbitrators, to whom the cause shall be referred.

Special case may be stated and

tried.

7. If it shall appear to the Court or a judge that the question of fact allowance or disallowance of any particular item or items in such account depends upon a question of law fit to be decided by the Court, or upon a question of fact fit to be decided by a jury, or by a judge, upon the consent of both parties, as hereinbefore provided, it shall be lawful for such Court or judge to direct a case to be stated, or an issue or issues to be tried; and the decision of the Court upon such case, and the finding of the jury or judge upon such issue or issues, shall be taken and acted upon by the arbitrator as the case may be, as conclusive.

Arbitrator may state special

case.

Power of judge to direct arbi

tration at time issue of fact left to his decision.

of trial when

Proceedings be

of arbitrator.

8. It shall be lawful for the arbitrator, upon any com pulsory reference under this Chapter, or upon any reference by consent of parties where the submission is or may be made a rule or order of the Court, if he shall think fit and if it is not provided to the contrary, to state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the Court; and when an action is referred, judgment, if so ordered, may be entered according to the opinion of the Court.

9. If upon the trial of any issue of fact by a judge under this Chapter, it shall appear to the judge that the questions arising thereon involve matter of account which cannot conveniently be tried before him, it shall be lawful for him, on the application of either party, to order that such matter of account be referred to an arbitrator appointed by the parties, upon such terms, as to costs and otherwise, as such judge shall think reasonable; and the award or certificate of such referee shall have the same effect as hereinbefore provided as to the award or certifi cate of a referee before trial; and it shall be competent for the judge to proceed to try and dispose of any other matters in question, not referred, in like manner as if no reference had been made.

10. The proceedings upon any such arbitration or fore, and power reference as aforesaid shall, except as otherwise directed hereby, or by the submission or document authorizing the reference, be conducted in like manner, and subject to the same rules and enactments, as to the power of the arbitrator and of the Court, the attendance of witnesses, the production of documents, enforcing or setting aside the award, and otherwise, as upon a reference made by consent under a rule of court or judge's order.

Power of judge

11. In case of any such arbitration or reference as matters for re- aforesaid the Court or a judge shall have power at any

to send back