But an infant cannot submit to arbitrament, for his submission is void. Ibid. Kyd. Aw. 35.

Yet it seems that if an infant and a man of full age join in a submission, it is good; for though the infant cannot be obliged to stand to it, yet his submission is only voidable, and he may agree or disagree to the award at his full age. Ibid. But see contra Kyd. Aw. 36. March. 142. 3 Vin. 87.

And a father may be obliged, that he and his son an infant shall stand to an award: and such obligation binds the father. Ibid.

And therefore, if the father pleads to the obligation, that his son was within age, it is no bar. 3 Lev. 17.

So a guardian may submit for an infant his ward, and bind himself that the infant shall perform the award. Comb. 318. Kyd. Aw. 39. 3 N. Y. Term Rep. 253.

A feme covert cannot submit herself to an award. 1 Com. Dig. 523. But the husband may submit for him and his wife. Style 351.

So, if the husband only submit, it is sufficient for a debt due from the wife as executrix or administratrix; for the husband is chargeable with it by the intermarriage. 1 Com. Dig. 523.

So, if there be a submission by the husband only for a lease for years, which his wife has as executrix; and this binds the wife after his death. Ibid.

Or, for a debt upon a bond made to his wife before coverture, March 77.

It is a general rule, that those only who are parties to the submission shall be bound by the award. Kyd. Aw. 42.

Thus if A subrnit, for himself and B his partner, all matters, &c. between the partnership and another, A shall be bound, but not B, for he is a stranger to the submission. 2 Mod. 228.

So, in general, a man is bound by an award to which he submits for another. Kyd. Aw. 42.

As, if an attorney, without the express authority of his principal, enter into a bond to a third person, under a condition to be void on performance of the award by the principal, otherwise to be in full force, this shall bind the attorney, and not the principal. 1 Ld. Raym. 246. 1 Salk. 70. Skinn. 679. Carth. 412. Comb. 439.

129. s. c.

12 Mod.

Yet it is the common understanding, that the assent of the attorney in a cause, to a reference by rule of court, will bind his client. Kyd. Aw. 45. 1 Dall. 164.

An executor may submit a controversy, in right of his testator; but if the award give him less than he would be entitled to at law, he must account for the deficiency. Kyd. Aw. 39, 40. 3 Leon. 53.

Where an administrator expressly bound himself as administrator, his heirs, &c. to abide by an award to be made touching matters in dispute between his intestate and another, and the arbitrators award that he as administrator should pay, &c. he cannot plead plene administravit to debt on the bond. 1 Term Rep. 691.

The above case has since been recognized as law, on the principal point, that the administrator by entering into a bond, in which he

bound himself, his heirs, &c. had bound himself personally; though the dictum of ASHHURST J. in that case, "that it amounted to an admission of assets," has since been overruled.

For it has been held that the mere act of submission by an administrator is not of itself an admission of assets; and if the arbitrator simply declares that there is so much due from the intestate's estate to the other party, without awarding that the administrator shall pay it, he may notwithstanding plead "fully administered." And the plaintiff in an action of assumpsit against the administrator cannot give in evidence a promise, at the time of the submission, to pay whatever should be found due from the estate of the intestate; for, if there be no assets, the personal promise of the representative is a nudum pactum. 5 Term Rep. 6.

But if an arbitrator, under a reference between A. and B an administrator, award that B shall pay a certain sum as the amount of A's demand, B. cannot afterwards object that he had no assets. 7 Term Rep. 453.

Such award, however, will not operate as an admission of assets, in another action, at the suit of any other creditor. Ibid.

If one of two executors refer a matter in his own right, and one in right of his testator, and the referees award thereon a sum of money to himself, and another to him and his co-executor, the award is good. 1 Call. 575.

A parent may submit to arbitration a trespass committed upon his infant child; and it shall not vitiate the award, that the damages awarded are blended with other damages belonging wholly to the parent. Kirb. 215.

IV. WHAT THINGS MAY BE SUBMITTED.

All personal actions and things of an uncertain nature, as chattels personal, may be determined by arbitration. 1 Comy. Dig. ARBITRAMENT." (D. 3) Kyd. Aw. 52.

So, a debt on a specialty or record, though certain, may be submitted amongst other things. 1 Lev. 292. 1 Bac. Abr. 203.

But freehold, or inheritance of lands, cannot be determined by ar bitrament. 1 Rol. 242. l. 10.

NOTE. On the point, how far a dispute concerning land could be referred to arbitration, and how far the parties were bound by the award, Mr. Kyd observes, there was anciently much doubt and uncertainty. After reviewing the several contradictory cases, his conclusion is, that where the parties might by their own act tranfer real property, or exercise any act of ownership over it, they may refer any dispute concerning it to the decision of a third person, who may order the same acts to be done which the parties themselves might

do by their own agreement: therefore, that the expressions that a freehold cannot be awarded, or a partition made by any award, &c. must be understood to mean, that the land cannot be transferred, or a division made by the mere words of the award; but that it is necessary that the arbitrators should award such acts to be done, as would, if done by the voluntary agreement of the parties, amount to a proper transfer or partition at law.

Modern determinations in England have realized the rigor of the ancient rule. Thus, it has lately (in 1802) been held, "that though an award cannot have the operation of conveying land," yet, when the lessor of the plaintiff and the defendant in ejectment had previously to the action referred their right to the land to an arbitrator, who had awarded in favour of the plaintiff, the award concluded the defendant from disputing the lessor's title in an action of ejectment. 3 East. 15.

The same principle had been settled in Pennsylvania, in the year 1792, where it was said that "an award cannot give a right to land; but a report of referees will settle a dispute about land, either in an ejectment, or in an action of trespass." See 4 Dall. 122.

In Virginia (in 1794) the President of the Supreme Court of Appeals, speaking of an award concerning lands, says, that if any act be awarded to be done, for which a complete remedy cannot be had at law, such as to make a conveyance a bill in equity for a specific performance of the award is common or proper." 1 Wash 295.

In New Jersey (in 1806) one of the judges, in delivering his opinion, recognizes the doctrine, that "an award cannot operate as a conveyance of land." He further says, “ Arbitrators may award, if the submission authorizes it, that one party shall execute conveyances to the other. But this does not pass a title; and if the party refuses to convey, the remedy is on the bond. But in case the arbitrators should award the land, it would be an act exceeding their jurisdiction, and void of itself for that cause. 1 Pennington 48. But the decision of a majority of the court in this case, that the party who was awarded to do a certain act might make his election to abide by the determination of the arbitrators, or submit to the penalty of the bond, seems contrary to the modern determinations above mentioned. In all of which, it appears, that the court will give effect to the award.

And therefore there cannot be a partition by an award; for freehold does not pass without livery. 1 Rol. 242. l. 16.

So, it seems, the interest of an estate for years cannot be transferred by an award; for it is a chattel real. 1 Rol. 242. l. 20.

A thing certain cannot be submitted as a debt upon bond, by itself. 1 Lev. 292. Kyd. Aw. 51. Otherwise if the submission be by bond, for then the award would be a good bar. 1 Bac. Abr. 203.

Or, a debt upon record; as arrears of an account found before auditors. 1 Comy. Dig. 524.

But an award may be of the arrearages of a rent reserved upon a lease for years, (1 Rol. 242. l. 25.) if joined with things of an uncertain nature. 1 Bac. Abr. 202.

So, if a man be bound to stand to an award, and the arbitrators make an award, that land shall be conveyed; if the party refuses the conveyance, he forfeits his obligation. 1 Rol. 244. l. 5.

So, if the condition of an obligation is, to stand to an award concerning lands; and the arbitrator awards the land to one, and that the other shall release to him: if he doth not release, the obligation is forfeited. 1 Bac. Abr. “ ARBITRAMENT." (A.)

And although there be no bond, yet if the arbitrator do award that the one shall infeoff the other; it seems that an action on the case may be maintained for not doing it. Ibid.

If there be a clause in a will, directing that whatever controversies may arise on the construction of it shall be decided by particular arbitrators, the parties claiming under the will may notwithstanding have them decided at law, if they think proper. 59. Kyd. Aw. 21.

10 Mod.

If an award be, that one shall pay so much in satisfaction of a specialty; though the specialty is not thereby discharged, yet, if he commence an action on the specialty afterwards, he forfeits his obligation, 1 Com. Dig. "ARBITRAMENT." (D. 3) Cro. Jac. 447.

Causes criminal are not arbitrable, because they ought to be punished, for the common good. 1 Bac. Abr. 202. Kyd. Aw. 63. b. c.

d. 65.

But a personal assault, and the like, where it is made the subject of an action, instead of an indictment, may be submitted. Kyd, Aw. 65,

66.

Causes matrimonial, or any thing concerning the contract or dissolution of marriages, cannot be submitted. 1 Roi. 252. pl. 10.

But the damages a person sustained by a promise of marriage, or any thing relating to a marriage portion, may be submitted. Abr. 203.

V. THE EXTENT OF THE SUBMISSION.

1 Bac.

If there be a submission of all actions and complaints; causes of actions are submitted. 1 Comy. Dig. " ARBITRAMENT." (D. 4)

If of actions personal, and suits and quarrels: actions real are submitted. Ibid.

If there be a submission of all matters between them two; an action by one of them and his wife against the other is not submitted. 1 Rol. 246. l. 15.

If of all demands; title to land is submitted. 1 Ld. Raym. 115. Samb. Keil. 99. b.

If of all debts, sums of money and demands; specialties and judgments for them may be released. 2 Saund. 190.

If of all differences or injuries; all demands may be released. 1 Com. Dig. 524. 3 Bulstr. 312.

But by a submission of all actions, causes of action are not submitted. 1 Rol. 245. l. 20. Kyd. Aw. 141.

By a submission of actions personal, suits and complaints, actions real are not submitted; for personal applies to the whole. 1 Rol. 246.

By a submission by A and B, of the one part, and C of the other, of all matters between them, an action by A alone against C is submitted; for it shall be taken distributively. Rol. 246.

By a submission of A, of all matters, a debt due from the wife of A, as executrix, is submitted. Cro. Jac. 447.

A submission of divers other matters, extends to real as well as personal concerns. 2 Caines, 320.

If all matters in difference be submitted, it extends to a demand as executor. 2 Str. 1144.

If two partners refer all matters in difference between them, the arbitrators may dissolve the partnership. 1 W. Bl. Rep. 475.

The extent of the submission may be various, according to the pleasure of the parties (Kyd. Aw. 26.) And it must be so understood as to give a reasonable construction to their meaning, and to make their intention prevail. See Kyd, Aw. 27, 28, 29. Ibid. 141 to 149.

A reference, by rule of court, "of all matters in dispute in the cause between the parties," confines the referees to the subject matter of that particular suit: but if it be, "of all matters in difference between the parties in the suit," the referees may take into consideration every matter of dispute between the parties. (Kyd. Aw. 149, 150. 2 W. Bl. Rep. 1118. 2 Term. Rep. 644-5.) And her Buller J. notwithstanding the above distinction is now well understood, yet it is too refined for the common understanding of mankind. He therefore suggests, that when a general reference is intended, it should be "of all matters in difference between the parties;" when a special reference," of all matters in difference in the cause.” 3 Term. Rep. 626.

VI. THE SEVERAL KINDS OF SUBMISSION.

1. A submission to arbitrament may be by parol or words; and an assumpsit lies for non-performance (1 Comy. Dig. "ARBITRAMENT," D 1.) And (contrary to the former decisions) the very act of submission implies in itself a promise to perform. 3 Bro. Ch. Ca. 361. Kyd. Aw. 11.

2. So, a submission may be by indenture, with mutual covenants to stand to the award. 1 Comy. Dig. 520. 2 Mod. 73. Willes 248. 1 Call. 575.

3. But the most usual kind of submission is by mutual bonds; though it is not essential that they should be mutual. They may be given to a third person, or to the arbitrator himself; and even by persons other than the parties See Kyd. Aw. 12.

Or, the submission may be by several obligations; as, where A gave a bond to B and C jointly, and they gave him separate bonds. Cro. Car, 433.

So, a bond made payable to two persons, one of whom is trustee for the other, and the arbitrators to be elected by the trustee only, is good. Lutw. 576.

So, if a submission be to four men by rame, "so as the same award be delivered up in writing, by them, or any three of them," any three may make the award. (3 Bulst. 62.) In like manner, if the submission