PART I. CH. I. S. 2. sewers, to procure the removal of some weirs and hatches in a river, have been made the subject-matter of a valid missioners of award (u). sewers. Indictments Consent of court to the reference of indictments. In criminal matters, after conviction before a Court of Quarter Sessions, a reference is lawful; for where a defendant, after conviction before the Quarter Sessions on an indictment for assault, was called up for judgment, and by the recommendation of the court the prosecutor and defendant entered into an agreement of reference respecting the matters in difference between them, including the assault and the costs of the indictment, on its being contended, on the strength of R. v. Harding (x), that the Quarter Sessions had no power to refer the matter to be determined by another, the Court of Common Pleas sustained the validity of the submission (y). It seems the better opinion, though there is no express decision on the point, that the consent of the court in which an indictment is pending for trial must be obtained in order that the reference should be effectual (z). (u) Doddington v. Bailward, 7 Dowl. 640. 2 Salk. 477. Baker v. Townshend, 7 (z) R. v. Rant, Kyd on Awards, 64; R. v. Coombs, ib., 1 Chitty's Stat., 33, note (b) to 9 & 10 W. III. c. 15; R. v. Bardell, 5 A. & E. 619, S. C. 5 Dowl. 238; R. v. Hardey, 14 Q. B. 529. CHAPTER II. WHO MAY REFER MATTERS TO ARBITRATION. In this chapter we proceed to examine who are the persons PART I. Scope and contents of the second chapter. SECTION I. PERSONS INTERESTED IN THE SUBJECT MATTERS. PART I. CH. II. S. 1. 1. Parties capable of disposing of their rights.]—Every one capable of making a disposition or release of his right can make a submission to an award (a). But those who are Persons capable of attainted or outlawed cannot submit, for they have no pro- contracting. perty, and cannot by law contravert anything (b). Those who are capable may, it appears, refer a cause, though some parties to the cause are under disability (c). Persons that cannot contract cannot submit to arbitration. Pursuant to this leading principle it is broadly laid down in the older authorities that femes covert, persons compelled by threats and imprisonment, and persons professed in religion, cannot submit (d). (a) Com. Dig. Arb. D. 2. (b) Bac. Ab. Arb. C. (c) 52 & 53 Vict. c. 49, s. 14. (d)_Bac. Ab. Arb. C.; Arb. D. 2. Com. Dig. PART I. CH. II. S. 1. 11. Femes covert.]-Some exceptions exist to this proposition, as far as regards femes covert. For where the husband, Feme coverte. by exile, banishment, abjuration, or profession of religion, was civiliter mortuus, the wife was always held capable of making contracts, and acting in every respect as a feme sole, and consequently might be a party to a reference (e). Husband civiliter mortuus. Transported. The wife of a felon, transported for life, would be equally competent (f). So, during the term, the wife of one tranAlien enemy. sported for seven years only (g). So likewise the wife of an alien enemy, but not of an alien ami; for the later decisions. seem to show, that it is only where the absence of the husband from the country is involuntary, that the law invests the wife with a separate character (h). Sole trader in Separate estate in equity. Real estate not settled to her separate use. Sometimes by local custom, as in the city of London, a married woman is authorised to carry on business as a sole trader (i). It is apprehended she might refer disputes respecting her business to arbitration. Where a married woman has a separate estate settled to her separate use, she was considered in equity (k), though not in law (), competent to act concerning it, in all respects as a single woman. But where she was interested in real estate, not settled to her separate use, she was not so treated, even in equity. In one instance where one of the parties was stated to be a feme covert interested in real estate, the Court of Chancery refused to permit a reference to arbitration, or even a reference to the master to inquire whether it would be for her benefit as in the case of an infant (m). A consent of a (e) Co. Litt. 1, Inst. 133, a.; Countess of Portland v. Prodgers, 2 Vern. 104. (f) Newsome v. Bowyer, 3 P. W. 37. (g) Sparrow v. Carruthers, cited in Marsh v. Hutchinson, 2 B. & P. 226; also in Lean v. Schutz, W. Bl. 1197; Carrol v. Blencow, 4 Esp. 27. (h) Marsh v. Hutchinson, 2 B. & P. 226; Barden v. Keverberg, 2 M. & W. 61; Deerly v. Duchess of Mazarine, 1 Salk. 116, S. C. 1 Lord Raym. 147. See also Walford v. Duchesse de Pienne, 2 Esp. 553; Franks v. Duchesse de Pienne, 2 Esp. 587; Kay v. Duchesse de Pienne, 3 Camp. 122; De Gaillon v. L'Aigle, 1 B. & P. 357. (i) Beard v. Webb, 2 B. & P. 93. (k) Peacock v. Monk, 2 Ves. sr. 190; Allen v. Papworth, 1 Ves. sr. 163; Pybus v. Smith, 1 Ves. 189; Dubois v. Hole, 2 Vern. 613; Jones v. Harris, 9 Ves. 486; Hulme v. Tenant, 1 Bro. C. C. 16; Heatley v. Thomas, 15 Ves. 596; Grigby v. Cox, 1 Ves. sr. 517. (7) Marshall v. Rutton, 8 T. R. 545, overruling Corbett v. Poelnitz, 1 T. R. 5; Beard v. Webb, 2 B. & P. 93. (m) Davis v. Page, 9 Ves. 350. married woman to be bound by an award already made, did not bind her as it often did a feme sole (n). PART I. CH. II. S. 1. reference with a married An award, on a reference relating to lands in Jamaica, to which married women interested therein were parties, was held void by the Judicial Court of Privy Council, on account of their coverture and disability to bind themselves (o). Where a married woman has been a party to a submission, Agreeing to a and an award has been made, a court of law will refuse to set aside the award, on the ground that she is not bound by woman knowit, at the prayer of a party to the submission, who, from the coverture. first, was cognizant of her coverture, for he never should have consented to refer the matters, and allow her to become a party, if he intended to make this objection (p). ing her marriage on single woman. Whether a single woman, party to a reference, is freed Effect of from liability to an attachment for disobedience to an award liability of by a subsequent marriage is considered subsequently (9). The power of married women to refer is probably now Married enlarged by the Married Women's Property Act (»). Women's between husband and divorce. III. Husband and wife.]—Where a wife had instituted a Submission suit for a divorce, and also, by her next friend, filed a bill against her husband in the Irish Court of Chancery, all wife, suit for matters in difference between the parties were referred, and the award was confirmed in Chancery, and also on appeal in the House of Lords, though the next friend was not a party to the reference (s). husband and A submission by a husband and a trustee of the wife of all Between matters in difference between the husband and wife, includ- wife's trustee, ing a suit for a divorce instituted by the latter, was permitted suit for. to be made a rule of the Court of Common Pleas (t). A husband might submit differences respecting the chattels Husband's he had in right of his wife to an award, for he might dispose of refer wife's them (u). So he might refer his claims for a debt upon a bond chattels. made to his wife before coverture, and the award would bind PART I. CH. II. S. 1. Wife's chattels as executrix. Husband's right to refer wife's real estate. Liability to attachment for wife's default. Infant's submission void the wife after his death (x); for an award in the husband's favour respecting chattels, real or personal, claimed in right of the wife, amounts to a sort of judgment, and operates as a reduction of them into possession (). If the husband only had submitted it was sufficient to bring before the arbitrator a question relating to a debt due from the wife as executrix or administratrix, for the husband was chargeable with it by the marriage (). So a submission by a husband only of a lease for years, which his wife had as executrix, was good; and the award would bind her after his death (a). When a husband contracted to sell his wife's interest in real estates, at a price to be fixed by arbitration, equity, in some instances, decreed him to procure her to join in conveying the lands, on the principle that he must be presumed to have gained her consent before the bargain was made. Lord Eldon, however, expressed doubts of the propriety of that course, as the policy of the law is, that a married woman is not to part with her property but by her own free will (b). Whether in old times he was liable to an attachment for refusing to pay a sum which an award had ordered his wife to pay before her marriage is doubtful (c). IV. Infants.]—If an infant submit to arbitration, he may able, not void. execute or avoid it at his election, as he may most of his other contracts (d). In an old case, an infant's submission was said to be void (e), and not voidable only as it is now Persons of full considered. If a man of full age is jointly bound with an infant to stand to an award, such obligation will bind the former (f). A father or guardian may bind himself that an age bound for infants. (x) Com. Dig. Arb. D. 2; Marsh, 77. (y) Williams' Exors., 538, 687, 8th ed. 698, 874; 1 Rolle Ab. Arb. 245, D. See 1 Roper, on Husband and Wife, 185, 219, 2nd ed.; Hunter v. Rice, 15 East, 100; Oglander v. Baston, 1 Vern. 396. (z) Com. Dig. Arb. D. 2; 1 Rolle Ab. 246, 2. (a) Com. Dig. Arb. D. 2; Bac. Ab. Arb. C.; Lumley v. Hutton, Rolle Rep. 269; Cro. Jac. 447. (b) Emery v. Wase, 5 Ves. 846; 8 Ves. 504 a; Berry v. Wade, Cas. Temp. Finch, 180. (c) Anon., 1 Cromp. 265, 3rd ed. See P. III., ch. 6, s. 1, d. 3, p. 591. (d) Bac. Ab. Arb. C.; Com. Dig. Arb. D. 2; Godfrey v. Wade, 6 Moore, 488; Harvey v. Ashley, 3 Atk. 607; Holt v. Ward, Fitzgibbon, 175, 275. (e) Rudston v. Yates, March, 111, 141; 1 Rolle Ab. Arb. A. 268. (f) Com. Dig. Arb. D. 2; Bean v. Newbury, 1 Lev. 139. |