Page:Halsbury Laws of England v1 1907.pdf/665

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References by Consent out of Court.

I.

443

governed by the Act, and depends in each case on the question ^Yhether referring to arbitration is the usual way of carrying on the

Sect.

i.

The

business of the particular partnership {b) and this of course varies Submission, with different businesses. It is incumbent on the person seeking to hold a firm bound by a submission made by one of its members to prove that referring to arbitration was the usual way of carrying on the firm's business, or that the other partners had authorised or ratified (e) the submission. In certain cases, such as trustees, executors and adminis- Capacity con;

trators {d), trustees in bankruptcy (e), companies registered under the Companies Acts, 1862 to 1900 (/), Parliament has expressly conferred power to refer disputes to arbitration.

Sub-Sect,

3.

Persons hound,

and 944. The submission is binding on the parties thereto where the subject-matter of the reference is capable of assignment the assignee of a party to the submission would be likewise bound {g). Where a party to a reference dies pending the reference {li), and the subject-matter of the reference is some claim or cause of action which survives his death {i), the question whether his legal personal representatives are bound by the submission depends on

If the submission provides either in express terms or its tei'ms. by necessary implication that it shall bind the legal personal reprebut if it sentatives of the parties thereto, then they are bound {k) contains no such provision the ordinary rule of law that the death

Biug. 101; Adams v. Bankliart (1835), 1 C. M. & E. 681; Antnun v. Chace See also Hatton v. Moyle (1858), 3 H. & N. 500. (1812), 15 East, 209. {h) The Partnership Act, 1890 (53 & 54 Yict. c. 39), s. 5, provides that the acts of every partner in carrying on in the usual way business of the kind carried on by the firm bind the other partners. See title Partnership. (c) See Thomas v. Atherton (1878), 10 Ch. D. 185. (d) The Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 21, confers upon executors, administrators, and trustees power to submit disputes to arbitration. As to how far a submission to arbitration by an executor or administrator operates as an admission of assets, see Be Wanshorouyli (1815), 2 Chitty, 40, where it is stated in the note that a submission to arbitration by an executor or administrator is in general considered as a reference not only of the cause of action, but also of the question whether or not he has assets, and when the arbitrator has awarded the executor or administrator to pay a certain sum of money it is equivalent to determining that assets existed. See also Pearson v. Henry (1792), 5 Term Eep. 6; Barn/ v. Bush (1787), 1 Term Eep. 691; Biddell v. Sutton Worthington v. Barloiu (1797), 7 Term Eep. 453 Love v. (1828), 5 Bing. 200 Honeyhourne (1824), 4 D. & E. 814 Be Joseph and Webster (1830), 1 Euss. & M. 496. Compare Davies v. Bidge (1800), 3 Esp. 101. (e) The Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 57, authorises a trustee in bankruptcy, with the permission of the committee of inspection, to refer any dispute to arbitration. See PJx parte Wyld (1860), 2 De G. F. & J. 642, in which case the committee of inspection had not given the permission required of them by the Bankruptcy Act then in force. (/) Companies Act, 1862 (25 & 26 Vict. c. 89), ss. 72, 73.





{g) (A)

Smith

v. Jones (1842), 1

Dowl.

g^^J^^^^^

(n. s.) 526.

An award made

before the death of the party is of course binding on his legal personal representatives. See Brooke v. Mitchell (1840), 6 M. & W. 473. (?) See Boiuker v. Evans (1885), 15 Q. B. D. 565. {k) McDougal v. Bobertson (1827), 4 Bing. 435 Doivse v. Coxe (1825), 3 Bing. 20 ; Clarke v. Crofts (1827), 4 Bing. 143.

Parties

and

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Personal [^^j^^gg^^f

party,

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