If parties to suits to which infants also are parties agree to refer, they cannot evade their submission, or defeat the award, on the ground that the infants were not bound; for they must be presumed to have known that the infants could not be bound, and therefore in the consent of the persons of full age they have all the consideration for which they have stipulated (Wrightson v. Bywater (1838), 3 M. & W. 199; 7 L. J. (N. S.) Ex. 83; Jones v. Powell (1838), 6 Dowl. 483; In re Warner (1844), 2 D. & L. 148; 13 L. J. Q. B. 370).

BANKRUPTS.

A bankrupt is not deprived of his right to contract, although his estate passes to the trustee in bankruptcy and is subject to the bankruptcy laws. He is therefore able to submit to arbitration, although he cannot, by so doing, affect the rights of his creditors.

Illustration.

M., a bankrupt, submitted a dispute concerning a promissory note and the rights of the parties or of M.'s assignees to it. The award was against M., and he was ordered to pay the costs of the reference. Held that M. was not incapacitated, although the claim had passed to his estate, and must pay the costs (In re Milnes and Robertson (1854), 15 C. B. 451).

As to submissions by trustees in bankruptcy, see post, p. 32.

PERSONS OF UNSOUND MIND.

Idiots or natural fools, i.e. those of unsound mind from birth, have no power to contract and therefore none to submit to arbitration.

Lunatics, i.e. those who have had understanding but have lost the power of reason, are liable to pay a reasonable price for necessaries supplied to them even by persons having knowledge of their lunacy, and other contracts are binding upon the lunatic unless he can prove that the other contracting party knew him to be so insane as not to be capable of understanding what he was about (Imperial Loan Co. v. Stone, [1892] 1 Q. B. 599; and see Molton v. Camroux (1849) 4 Ex. 17).

A lunatic so found by inquisition cannot, even in a lucid interval, so long as the finding is in force, validly deal with his property (In re Walker, [1905] 1 Ch. 160). It would seem, therefore, that a lunatic may submit to arbitration, and so long as he is not, to the knowledge of the other party, so insane as not to know what he is doing, the submission will bind him, unless he has been found lunatic by an inquisition still in force.

As to submissions by committees, see post, p. 31.

CONVICTS.

Formerly any person convicted of treason or felony was subject to the law of forfeiture (Bullock v. Dodds (1819), 2 B. & Ald. 258). But

the Forfeiture Act, 1870 (33 & 34 Vict. c. 23), provides that no conviction or judgment of or for any treason or felony shall entail any forfeiture or escheat. By the same Act, however, a convict, i.e. a person against whom judgment of death or penal servitude shall have been pronounced, upon any charge of treason or felony, is disabled, while subject to the operation of the Act, from bringing any action or suit, at law or in equity, or alienating or charging any property, or making any contract except during such time as he may be lawfully at large under licence. On ceasing to be subject to the Act the convict regains all his powers of contracting. It would seem, therefore, that a convict, except when on licence, cannot submit to arbitration.

PARTNERS.

By the Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 5, “Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner."

And by s. 6, "An act or instrument relating to the business of the firm and done or executed in the firm-name, or in any other manner showing an intention to bind the firm, by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners. Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments."

But "to enter into a submission for arbitration is no part of the ordinary business of a trading firm" (per Best, C.J., in Stead v. Salt (1825), 3 Bing., at p. 103). Consequently no authority can be implied for any one partner to bind his co-partners by a submission, and they will only be bound by his submission upon proof that they have either expressly authorised it beforehand or have subsequently adopted and ratified his act (Stead v. Salt (1825), 3 Bing. 101; Adams v. Bankhart (1835), 1 C. M. & R. 681. See, however, Burnell v. Minot (1820), 4 Moo. C. P. 340). Such authorisation need not be in writing or otherwise formal (Wood v. Thompson (1647), Rolle, Ab. Arb. 523), but it must be actual (Ball v. Dunsterville (1791), 4 T. R. 313; Adams v. Bankhart (1835), 1 C. M. & R. 681), and the authority will only extend to matters to which it relates, and will not be construed as covering other questions.

Illustration.

On a dissolution of partnership one of the partners was authorised to collect all debts due to, and to pay all debts due from, the partner

ship. He commenced an action against an alleged debtor, who pleaded a set-off. The partner then agreed to refer the action and all matters in dispute between the parties. The partner had no authority from the firm to refer these questions. Held that the award did not bind his partners (Hatton v. Royle (1858), 3 H. & N. 500. See also Robertson v. Hatton (1857), 26 L. J. Ex. 293).

The other partners may, however, adopt an unauthorised submission by a co-partner and so make it binding upon themselves, e.g. by being present when the submission is made and not objecting, or by attending before the arbitrator without protest.

Illustrations.

1. A partner executed a deed, purporting to bind himself and his partner, though he alone sealed it. The other partner was present and took no objection. Held that the deed was binding upon both partners (Ball v. Dunsterville (1791), 4 T. R. 313).

2. T., the managing partner of a colliery, without informing the other partners, submitted to arbitration a dispute as to the workings being carried on beyond the boundary. The other partners made no objection and attended before the arbitrator. But they refused to contribute towards the sum awarded, and T. sued them. They complained that T. had wilfully carried the work beyond the boundary. Held by Bacon, V.-C., that T. could not recover, as it was shown that the partners had assented in ignorance of material facts, so that their assent did not amount to a ratification of T.'s act in submitting, without which the submission did not bind the partners. On appeal it was held that the partners had assented so as to make the award binding upon them as to the fact of trespass and quantum of damage, though, being of the opinion that T. had been reckless in the operations, the Court affirmed the decision that his partners were not liable (Thomas v. Atherton (1878), 10 Ch. D. 185).

Where partners sign a submission on the faith that the other partners are also going to sign it, the submission will only become effective when all have signed (see per Eldon, L.C., in Dutton v. Morrison (1810), 17 Ves., at p. 199).

Illustration.

Four partners entered into an agreement to refer to arbitrators the question of the partnership accounts and all other differences between them or any two of them. Only two partners executed the agreement. Held that an award made was of no effect, because the submission was not valid until executed by all, and did not bind any until all had signed, for the submission of all was the consideration for the submission of each (Antram v. Chace (1812), 15 East, 209).

The fact that a partner purporting to submit on behalf of himself

and the other partners does not bind them does not make the submission the less binding upon him, and if he undertakes that the award shall be performed it is none the less a breach of his undertaking if his partners will not perform their share because they are not bound.

Illustrations.

1. When a person submits on behalf of himself and other interested persons, he will be bound though they may not be without express authority (Mudy v. Osam (1628), Litt. Rep. 30).

2. G., on behalf of himself and his partner, referred all disputes between S. and themselves to arbitration, and undertook to perform the award. Held that he must do so, but that his partner was not bound by the submission (Strangford v. Green (1678), 2 Mod. 228).

PARTIES WITH COMMON INTERESTS.

If one or more interested parties submit a dispute to arbitration, they cannot bind the other interested parties without express authority, but will bind themselves none the less effectually for that, and if they undertake that such other parties shall perform the award the, fact that those parties are not bound will form no excuse for the breach of that undertaking.

Illustration.

A parson and certain of his parishioners purported to submit a dispute on behalf of themselves and the rest of the parishioners, and entered into a bond whereby the parishioners undertook to perform the award. Held that as no authority was proved from the rest of the parishioners only the signatories were liable, and they were liable for breaches by the other parishioners (Mudy v. Osam (1628), Litt. Rep. 30; see Bac. Ab. Arb. C).

Where parties agree jointly and severally to refer a dispute and bind themselves jointly and severally to perform the award, each is liable to perform the whole award, and not merely the part of the award which affects his own interest, although the interests may be several.

Illustrations.

1. Two several tenants of a farm agreed with the succeeding tenant to refer matters in difference, and jointly and severally promised to perform the award. The arbitrator awarded that each tenant should pay their successor a certain sum. Held that the two tenants were jointly liable for the sums payable by each (Mansell v. Roberts (1797), 7 T. R. 352).

2. T. bound himself with two others to perform an award. The award ordered that each of the three should pay the plaintiff 20s. T. was sued and pleaded that he had tendered his 20s. Held that he

was bound to carry out the whole award (Genne v. Tinker (1681), 3 Lev. 24).

SURETIES.

An award against a principal debtor will not bind a surety in the absence of a special agreement on the part of the surety (Ex parte Young (1881), 17 Ch. D. 668).

CORPORATIONS, SOLE AND AGGREGATE.

Corporations are subject to restrictions, in many cases, with regard to contracts, and these restrictions will apply equally to submissions to arbitration. Thus, if a corporation can only validly contract under its common seal, a submission must be under seal in order to be binding. The restrictions and requirements in each case depend upon the nature of the corporation, and the statutes or regulations by which it is governed, and the particular class of contract in question (see Ludlow (Mayor) v. Charlton (1840), 6 M. & W. 815, 822; Chitty on Contracts, 16th ed., 315 et seq.).

Corporations sole, e.g. rectors or bishops, as a rule have full contractual capacity, though not necessarily so as to be able to bind their successors. Although it is stated in the Year-Books that an award made upon the submission of a prior will bind his successors in the office (2 H. 4, 4 b; Rolle, Ab. Arb. 268, A 3), it would seem that this doctrine must be qualified to some extent. At any rate where the successor would have a personal interest by virtue of his office, e.g. in the case of a question of tithes payable to the holder of the office for the time being for his own use, it would seem that this personal interest could not be entirely controlled by the acts of his predecessor.

Illustration,

A rector came to an agreement with his parishioners whereby they should pay him an annual sum in lieu of tithes. Held that this arrangement, at any rate in the absence of proof that allowance had been duly made for the increasing value of the tithes, did not bind the succeeding rector (A.-G. v. Chomley (1765), 2 Eden, C. C. 304).

Corporations aggregate, subject to the restrictions mentioned above, may be parties to arbitrations as well as individuals. The act, however, must be that of the corporation as a whole. A dean without his chapter, a mayor without his commonalty, or the master of a college or hospital without his fellows cannot, by a submission, bind the corporation, for the same reason that he cannot bind it by any other contract (see Bac. Ab. Arb. C; 21 Edw. 4, 13).

AGENTS.

An agent may be authorised to enter into a submission to arbitration, and if he does so, his liability and that of the principal would