infant son or ward shall perform an award (g). But if the award direct that, on payment by defendant of a sum of money, the infant shall execute a release, though the submission to which he is a party may be good, as it may be for his benefit, yet the award will be void, as an infant cannot execute a binding release; and the father will be unable to enforce the arbitration bond against the defendant (h). An infant may be directed by the award to pay costs (i).

PART I.

CH. II. S. 1.

equity will enforce award

against Reference

infant.

to master, whether

for infant's benefit.

bound by

solicitor.

Equity, it has been said, will not decree an award to bind Whether an infant (k), but the rule is not without an exception (7). When an infant was a party to a suit in Chancery, the court would refer it to the master to ascertain whether it would be for the infant's benefit that the suit should be submitted to arbitration, and would make an order in accordance arbitration with the master's report (m). Infant plaintiffs in a suit in Chancery suing by their next Infant not friends were not bound by acts of the solicitor referring the suit to arbitration, and the award would be held void for the want of mutuality, if the object of the reference failed in consequence (n). But 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 (o).

Act, 1889.

By the Arbitration Act, 1889, s. 14, if all the parties Arbitration interested in a cause who are not under disability consent, the court may order a reference (p).

s. 1, d. 2, p. 567.

(m) Davis v. Page, 9 Ves. 350. See also Dowse v. Coxe, 10 Moore, 286.

(n) Biddell v. Dowse, 6 B. & C. 255, in error from C. P., S. C. 9 D. & R. 404. See case below, reported Dowse v. Coxe, 10 Moore, 272, S. C. 3 Bing. 20.

(0) Wrightson v. Bywater, 3 M. & W. 199; Jones v. Powell, 6 Dowl. 483; Warner, In re, 2 D. & L. 148. See Wyld, Ex parte, 30 L. J. Bank. 10, S. C. 2 De G. F. & J. 642.

(p) 52 & 53 Vict. c. 49, s. 14.

PART I.

CH. II. S. 1.

Partner cannot bind co-partner.

Power to sue not give

power to refer.

All must execute or none bound.

v. Partners and parties with joint interests.]—If a man submit for himself and his partner all matters in difference between the partnership and another, the partner submitting shall be bound to perform the award; but the other shall not, because he is a stranger to the award. If, however, the latter refuse, it is a breach of the submission by the partner who agreed to the reference (q).

The same rule prevails in the case of a general partnership, as well as in the case of a partnership in a particular transaction. There is no implied authority in either case for some of the partners to bind the others by a submission to arbitration made without their knowledge or assent; for it forms no part of the transaction in which they are jointly engaged, and joint contractors can only be made responsible for transactions arising in the way of their business or employment. It is not, however, necessary that that assent must be given in any particular forms of words, nor is it required to be made under the hand of the co-partner. All that is necessary is, that there should be some evidence of an actual authority conferred. Such a power does not arise out of the relation of partnership, and is not, therefore, to be inferred from such relation (r).

If, on a dissolution of partnership, one partner authorise the other to collect the assets and to sue in their joint names to recover debts due to the firm, the acting partner cannot refer to arbitration an action brought on such authority so as to bind the retiring partner; for though a court of equity would have compelled the retiring partner to allow his name to be used in suing, he could not be forced to submit to arbitration (s).

Even the individual partners who are parties to the reference are sometimes not bound by the award. Thus, where by a deed of covenant purporting to have been made between several persons who were partners, the partnership accounts and all matters in difference between the parties or any two

(2) Bac. Ab. Arb. C.; Com. Dig. Arb. D. 2; Strangford v. Green, 2 Mod. 228.

(r) Stead v. Salt, 10 Moore, 389, S. C. 3 Bing. 101; Adams v. Bankhart, 1 C. M. & R. 681; Burnell v. Minot, 4 Moore, 340; Wood v.

Thompson, Rol. Ab. Arb. F. 11, p. 249. See Boyd v. Emmerson, 2 A. & E. 184; Thomas v. Atherton, 10 Ch. D. 185.

(s) Hatton v. Royle, 3 H. & N. 500, S. C. 27 L. J. Ex. 486.

of them were referred, and two only of the partners executed the deed, an award deciding on a separate claim between the two who executed was not held binding upon them, as the consideration to each to execute his own submission was the submission of all the others, and until all had executed the deed, the arbitrators had no authority (†).

PART I.

CH. II. S. 1.

In general a man is bound by an award which he submits Party submitting for to for another («). Thus, if the parson on the one hand others as well and some of the parishioners on the other hand, on behalf as himself. of themselves and the rest of the inhabitants of the parish, but without the authority of the rest, submit to arbitration by bond, the parishioners submitting shall alone be answerable for a breach of the award by any of the other parishioners (r).

Rector refertithe during ring right to

bency.

VI. Corporations, sole and aggregate.]—It is stated in the Year Books that an award made on the submission of a preceding prior shall bind his successor (y), but it is clear that a his incumrector who refers a question respecting the amount of tithes. cannot so provide that the award shall be conclusive beyond his own incumbency of the living (~).

Corporations aggregate may be parties to a reference. In Corporations one case it was discussed whether the attorney of a corpo- aggregate. ration required a special authority under the corporate seal to empower him to refer a cause; at all events a subsequent ratification of his acts under the corporate seal is sufficient (a). The reference must be an act of the corporate body. A dean without the chapter, a mayor without his commonalty, the master of a college or hospital without his fellows, cannot submit to an award, for the submission has the force of a contract, and they cannot contract without them (b). But where

(t) Antram v. Chace, 15 East, 209; Adams v. Bankhart, 1 C. M. & R. 681.

(u) Bac. Ab. Arb. C.; Alsop v. Senior, 2 Keb. 707, 718; Shelf v. Bailey, Com. Rep. 183; Bacon v. Dubarry, 1 Ld. Raym. 246, S. C. Salk. 70; Skin. 679; Carth. 412; Comb. 439; 12 Mod. 129.

(x) Bac. Ab. Arb. C.; Mudy v. Osam, Litt. 30.

PART I.

CH. II. S. 1.

AttorneyGeneral's consent in

case of charities.

Party joined on the reference of a

cause.

Party added afterwards.

Party by subsequent consent.

Party by acquiescence.

the body corporate properly enter into a submission, the award is binding upon them.

The Court of Chancery has on several occasions enforced an award against an eleemosynary corporation (c).

It may here be proper to remark, that in suits in equity respecting charity property, the court would not permit a reference, however advisable such a course might seem, unless the Attorney-General gave his consent (d).

VII. Parties interested, added.]—It often happens, when a cause is referred, that a third party is made a party to the submission, and under some forms of submission, the arbitrator has been held warranted in treating him as a party to the cause itself (e). Even when not inserted as a party in the order of reference, his assent to the proceedings will in many cases preclude him from disputing his obligation to abide by the award (ƒ).

Where a submission has in the first instance been made between two, a third party may be added afterwards, and the reference may proceed as if all three had been parties to the original order of reference (g).

Subsequent consent to the award by a party interested in the subject matter of it, will in equity often have the effect of binding his interests (); and may do so in law if a contract is made on the footing of it (i).

Even acquiescence may render a person concluded by the terms of an award. Thus, where the landlords of two adjoining estates let on lease referred to a surveyor to determine and stake out a disputed boundary between their respective properties, the tenant of one estate, who by his conduct assented to the surveyor's staking out the line, was held bound

(c) Attorney-General v. Clements, 1 Turn. & R. 58. See P. III., ch. 4, s. 3, d. 2, p. 580.

(d) Attorney-General v. Fea, 4 Madd. 274; Attorney-General v. Hewitt, 9 Ves. 232; Prior v. Hembrow, 8 M. & W. 873.

(e) Hawkins v. Benton, 2 D. & L. 465, S. C. 15 L. J. N. S. Q. B. 139; 8 Q. B. 479; Rogers v. Stanton, 7 Taunt. 575, n.; Morgan v. Miller, 6 Bing. N. C. 168; Prosser v. Goringe, 3 Taunt. 425; Nickalls

by the decision of the surveyor as if he had been an original

party to the submission ().

PART I.

CH. II. S. 1.

laches.

So far has this principle been carried, that a third party Party by having a claim on a subject of reference between A. and B., and not bringing forward his claim, was held in equity bound by the award (7).

The official referee invested with the powers of a judge, by Party added by official the order of reference, may add a third party under Order referee. XVI., Rule 11, 1883, without consent (m).

SECTION II.

PERSONS NOT INTERESTED IN THE SUBJECT MATTERS.

1. Authorised agent.]- The parties to a submission of whom we have hitherto treated are those who are personally bound by the award, and whose immediate interests form the subject of reference.

We now come to consider a class of parties who have no interest of their own in the matter in dispute, but who nevertheless sometimes incur personal liability.

PART I. CH. II. S. 2.

If a man authorise another on his behalf to refer a dispute Submission to arbitration by between himself and a third party, an award consequent on agent authosuch submission is binding on the principal alone, and it is rised to refer. no objection that the agent had no interest in the subject of the dispute. But if the agent expressly bind himself for the performance of the principal, not only the principal who authorised him, but the agent himself, is bound by the award (n).

contract.

An assignee of a business including a contract for covering Assignee of wires with gutta-percha, with a power of attorney to him to take proceedings in the name of the assignors, to enforce any existing contract and otherwise to deal in respect thereof as

(k) Taylor v. Parry, 1 M. & G.

604.

(1) Govett v. Richmond, 7 Sim. 1. See P. III., ch. 4, s. 1, d. 2, p. 569.

(m) Byrne v. Brown, 22 Q. B. D. 657.

(n) Bac. Ab. Arb. C.; Dyer, 216 b; Cayhill v. Fitzgerald, 1 Wils. 28, 58; Com. Dig. Arb. D. 2.