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Every fee is to be paid in stamps, and shall be affixed to a memorandum stating the account on which such fees are paid. The party who begins the reference is primarily the party who pays for the stamp, and a deposit on account of expenses may be required before proceeding with the reference, or at any time during the course thereof.
The fees payable to a special referee are fixed by the Court, and vary according to circumstances. There are also sundry other methods of submission to arbitration, which it is not necessary to enter into in a work of this character. They are submissions under the Lands Clauses Consolidation Act, 1845, which usually arise when an industrial or commer- Consolidation cial undertaking has been sanctioned by Parliament, 8 & 9 Vict. and the promoters have notified their intention to take lands necessary for the purposes of their business, and the owner of such lands claims more than £50 as compensation, and also to have the amount of compensation settled by arbitration. The Railways Clauses Consolidation Act also contains provisions similar to the above, for the submission of matters in difference to arbitration, as do also the Railway c. 20. Companies Arbitration Act, 1859, 22 & 23 Vict.
c. 59, and the Public Health Act, 1875, 38 & 39 Vict. c. 55.
There are also submissions in Bankruptcy, by record, by order of County Court Judge, by order of Quarter Sessions.
These are the principal methods by which submissions can be made, and they show the necessity that has from time to time arisen for controlling and perfecting this form of settling disputes.
and under the Railways Clauses Con
solidation Act, 8 & 9 Vict.
Who may be
THE PARTIES TO THE SUBMISSION.
HAVING dealt with the various methods of submitting disputes to arbitration, we propose in this Chapter to deal with the parties who may put these methods into practical operation, and thereby gain for themselves the advantages to be derived from this form of obtaining satisfaction. In answering the question of who may be parties to a submission, it may be laid down as a broad principle, that all persons who can enter into a binding contract, may be parties to an arbitration. As infants are incapable of binding themselves by contract, except for necessaries, they cannot of course be parties to a submission, and if an infant is a party, the award of an arbitrator would not bind him, but he could, on coming of age, accept it or repudiate it.
The father or guardian of an infant can, however, bind himself for the infant's performance of an award, so far as that award lays upon the infant some obligation that he can perform whilst he is a minor. In other words, the contracts of an infant, except for necessaries, are not strictly void, but they are voidable, so that if a contract has been made for him whilst he is a minor, and is for his benefit, he can on attaining his majority accept it; if not for his benefit, he can then repudiate it altogether.
The power which an infant formerly possessed of
ratifying, after he obtained his majority, a contract entered into when he was a minor, does not now exist, having been put an end to by the Infants Relief Act, 37 & 38 Vict. c. 62 (Coxhead v. Mullis, 3 C. P. Div. 439). If a person capable of entering into a contract binds himself jointly with an infant for the performance of an award, he himself will be personally liable, but the infant will be free (Com. Dig. Arb. D. 2). Equity will not award a decree to bind an infant, but the Court will sometimes, in an action to which an infant is a party, refer the matter to the Master to inquire whether it would be to the advantage of the infant that the action should be referred to arbitration, and will act in accordance with the master's report (Davis v. Page, 9 Ves. 350).
A married woman could not formerly enter into a Married contract so as to bind herself, unless her husband were outlawed, or unless she were a trader in the City of London, or separated from her husband by a decree of the Courts. She could not, therefore, enter into a submission without her husband's consent. By the passing of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), the power of a married woman to contract has been considerably extended. The Act came into operation on the 1st Jan. 1883, since which time a married woman occupies the same position in respect of her power of contract as if she had remained unmarried. The Act gives her power to enter into and render herself liable in respect of her separate property on any contract, and also of suing and being sued thereon, without joining her husband; it also enacts that her
Married woman as trader.
Lunatic cannot refer.
contracts shall be deemed to be entered into by her with respect to, and to bind her separate property, unless the contrary be shown. A married woman can now, therefore, enter into a submission to arbitration without her husband's consent, but only so far as to bind her separate estate.
As a trader in the City of London a married woman occupies by local custom a somewhat anomalous position she can sue and be sued in her own name, can be made bankrupt, and is considered for all business purposes as a feme sole, and can, it is presumed, without her husband's consent submit disputes in relation to her business to arbitration.
In cases of partnership disputes, or of any matter relating to partnership business, one partner has no power to bind his co-partners by a submission to arbitration without their consent, which need not necessarily be in writing (Hatton v. Royle, 27 L. J. Ex. 486; Stead v. Salt, 3 Bing. 101).
A duly authorized agent can bind his principal by a submission to arbitration, but in order to do so the submission must be made in the name of the principal. If he make the submission in his own name, the agent will be personally liable, and it will be no defence that he had no interest in the subject of the dispute (Bacon's Abr. Arb. C.). If an agent has received authority from his principal to refer, he has the same power as the principal himself, and he may bind his principal by waiving any irregularities that may have taken place in the course of procedure (Hamilton v. Bankin, 19 L. J. Ch. 307).
A lunatic, not being able to enter into a binding
contract, cannot refer to arbitration, but his committee may do so on his behalf, by order of the Lords Justices, who have jurisdiction in matters of lunacy (Dane v. Viscountess Kirkwall, 8 C. & P. 679). If there is no committee of the lunatic, his wife would appear to be the proper person to refer on his behalf (Rock v. Slade, 7 Dowl. 22).
Persons having joint and several interests in any Effect of being matter in dispute who bind themselves jointly and jointly and severally to perform the award, are all liable to do so (Mansell v. Burredge, 7 T. R. 352). Corporations, Corporations either sole or aggregate, may submit to arbitration ; but the submission, to be binding, should be under the common seal of the corporation. Trustees and also trustees executors may also submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever, relating to the testator's estate or to the trust, without being responsible for any loss occasioned by any act or thing so done by them in good faith (44 & 45 Vict. c. 41, s. 37). A bankrupt cannot refer to Bankrupts arbitration so as to bind his estate; but by the Bankruptcy Act of 1883, his trustee, with the sanction of the committee of inspection, may refer to arbitration and compromise all claims (46 & 47 Vict. c. 52, s. 57).
A solicitor can bind his client in an action by a submission to arbitration, and that without any express consent being given, in fact, in direct opposition. to his client's instructions (Filmer v. Delber, 3 Taunt. 486). If, however, he exceed his authority by so doing, the client is bound by the award, but he has his remedy against the solicitor for any loss or
Solicitors can bind client by reference.