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CHAPTER II.

WHO MAY BE PARTIES TO A REFERENCE.

CAPACITY to enter into a binding submission to arbitration depends upon the same incidents as capacity to contract generally. Every person capable of making a disposition or release of a right may submit that right to arbitration. (Com. Dig. "Arb." D. 2.) A person who cannot contract cannot submit to arbitration. (Bac. Ab. "Arb." C.)

CHAP. II.

of capacity

to submit generally.

It has long been established at common law that an Infants infant could make no binding contract except for necessaries, or service, or unless otherwise obviously for his benefit (Clements v. London and North-Western Railway Co. [1894] 2 Q. B. 482; 70 L. T. 896); and a submission by an infant was not binding upon him unless he confirmed it when he came of age. (Roll. Ab. "Enfant," D. 5; Bac. Ab. " Arb." C.; Godfrey v. Wade, 6 Moore, 488; Dowse v. Coxe, 3 Bing. 20.) Now it is provided by the Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), section 2, that "no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." Except as to contracts beneficial to the infant (Fellows v. Wood, 59 L. T. 513), this section applies to all kinds of contracts. (Miller v. Blankley, 38 L. T. 527; Coxhead v. Mullis, 47 L. J., C. P. 761; 3 C. P. D. 439; Ex parte Kibble, 44 L. J., Bank. 63; L. R. 10 Ch. 373; Re Onslow's

CHAP. II.

Parent or guardian.

Liability of other party, though infant not bound.

Trusts, 44 L. J., Ch. 628; but see Duncan v. Dixon, 44 Ch. D. 211; 59 L. J., Ch. 437; Edwards v. Carter [1893] A. C. 360; 63 L. J., Ch. 100.) It does away with the effect of a ratification, and there must be a new and independent contract after majority to bind a person to the terms of a contract entered into by him while a minor. (See Ditcham v. Worrall, 49 L. J., C. P. 688; 5 C. P. D. 410.)

A father or guardian may bind himself for an infant's performance of an award in the ordinary way in which one man binds himself for the acts of another. (Roberts v. Newbold, Comb. 318; Gill v. Russell, Freem. 62; Bacon v. Dubarry, 1 Ld. Raym. 246.) If, however, the award direct the performance by the infant of some act of which he is incapable, as the execution of a release, the award will be void (Knight v. Stone, W. Jones, 164); but an award is not bad by reason of its directing an infant to pay costs. (Proudfoot v. Boyle, 15 M. & W. 198; 3 D. & L. 524.)

Every one must be presumed to know the legal disability of infants; therefore if a man of full age bind himself jointly with an infant to perform an award the disability of the latter will not free the former from his obligation (Com. Dig. "Arb.” D. 2; Bean v. Newbury, 1 Lev. 139; Bowyer v. Blorksidge, 3 Lev. 17); and if parties to an action agree to refer they cannot defeat the award on the ground that there are infant parties to the action who are not bound by the award. (Wrightson v. Bywater, 3 M. & W. 199; Jones v. Powell, 6 Dow, 483; Ex parte Wyld, 30 L. J., Bank. 10; Re Warner, 2 D. & L. 148.) Though, as a general rule, the court will not decree an award to bind an infant (Cavendish v.

1 Ch. Ca. 279; 2 P. W. 450), yet when an infant is a party to an action it will sometimes refer to chambers to ascertain whether it would be for the benefit of the infant that the action should be submitted to arbitration,

and will make an order according to the report. (Davis

v. Page, 9 Ves. 350.)

CHAP. II.

women.

At common law a married woman was incapable, Married except her husband was civilly dead, or where she was trading under the custom of the City of London, of making a valid contract (Redman, Husband and Wife, 52), and with those exceptions she could not enter into a valid submission. To those exceptions were added by statute women deserted by their husbands, and having obtained protection orders, or living apart from their husbands under a decree for judicial separation. (20 & 21 Vict. c. 85, ss. 21, 25, 26.) The capacity of married women to contract has been further extended by the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), which enacts that, as from the 1st of January, 1883, a married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued thereon without joining her husband (s. 1, sub-s. 2), and that every contract, including a contract of reference (Conolan v. Leyland, 27 Ch. D. 632; 54 L. J., Ch. 123), entered into by a married woman shall be deemed to be a contract entered into by her with respect to, and to bind her separate property unless the contrary be shown. (S. 1, sub-s. 3; and see Married Women's Property Act, 1893 [56 & 57 Vict. c. 63], s. 1.)

A wife can only by her submission bind property which is her separate property. As to her chattels, real and personal, if any, which by the marriage have vested in her husband, whether originally belonging to her in her own right (Smith v. Ward, Styles, 351; Oglander v. Baston, 1 Vern. 396), or as executrix or administratrix, and in respect of which she is not in the position of a feme sole by virtue of section 18 of the Married Women's Property Act, 1882 (Lumley v. Hutton, Cro. Jac. 447;

CHAP. II.

Persons

acting under compulsion.

Partners.

1 Wms. on Exors. 833), they are entirely at the disposal of the husband after marriage, and he may submit disputes concerning the same to arbitration, and an award made in the lifetime of the husband will bind the wife after his death. (Com. Dig. "Arb." D. 2.)

Matters touching the freehold property of the wife not limited to her separate use may, by a joint reference of husband and wife, be submitted to arbitration. The submission would not, however, be binding upon the wife unless made by an acknowledged deed. (See Cahill v. Cahill, 8 App. Cas. 420; 31 W. R. 861; Williams v. Walker, 9 Q. B. D. 576; 31 W. R. 120.)

As in the case of an infant, so in that of a married woman, everyone must be presumed to be aware of her legal disability, and a person who has knowingly entered into a submission with a married woman cannot move to set aside the award on the ground that she is not bound by it. (Re Warner, 2 D. & L. 148.)

A married woman may be a party to a submission respecting the adjustment of the terms of her separation from her husband. (See 2 Bright, Husband and

Wife, 311.)

Though a submission by a party acting under threats or imprisonment is generally void, yet if it is afterwards voluntarily acted upon by the party, he taking his chance of a favourable award, he cannot avoid it when the result has turned out to his disadvantage. (Ormes v. Beadel,

30 L. J., Ch. 1.)

Since a submission to arbitration is no part of the business of a trading concern, one partner cannot, without special authority, bind his co-partners by a submission even of matters connected with or arising out of the business of the firm. (Stead v. Salt, 3 Bing. 101; Adams v. Bankhart, 1 Cr., M. & R. 681; Boyd v. Emmerson, 2 A. & E. 184; Re Aldington, 15 C. B., N. S. 375; and see Partnership Act, 1890 53 & 54 Vict. c. 39],

s. 5.) The authority need not be in writing, but must be actually given. (Ball v. Dunsterville, 4 T. R. 313.) An authorization for one partner to sue in the name of himself and the other partner will not be sufficient to empower him, after having brought an action on such authorization, to refer the action and all matters in difference so as to bind the other partner. (Hatton v. Royle, 27 L. J., Ex. 486; 3 H. & N. 500; see also Robertson v. Hatton, 26 L. J., Ex. 293.) If, with knowledge of the submission, co-partners attend the reference, and do not object to it, they will be held to be bound by acquiescence. (Thomas v. Atherton, 48 L. J., Ch. 370; 10 Ch. D. 185.)

If a man submit on behalf of himself and his partners he will himself be bound to perform the award. (Strangford v. Green, 2 Mod. 228.) Where, however, an individual partner executes a submission on the faith and understanding that it is to be executed by his co-partners, it does not bind him unless the signatures of the rest be procured, as the submission is incomplete. (Antram v. Chace, 15 East, 209; see also Dutton v. Morrison, 17 Ves. 193; Johnson v. Baker, 4 B. & Ald. 440.)

CHAP. II.

When a person submits on behalf of himself and Persons with others jointly interested in the matter in dispute he will joint interests. be bound, though the others will not. (Mudy v. Osam, Litt. 30; Wood v. Thomson, Roll. Ab. "Arb." F. 11.) Where parties agree jointly and severally to refer disputes to arbitration, and bind themselves jointly and severally to perform the award, although their interests are several, yet each is liable to the performance of the award, not only as to what is awarded to be performed by himself, but also by his companions. (Mansell v. Burredge, 7 T. R. 352; Genne v. Tinker, 3 Lev. 24; 2 Byth. 606.)

Corporations sole or aggregate may submit to arbitra- Corporations. tion. (Roll. Ab. "Arb." 2, A. 3.) It is a general rule.

A.

C

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