such as assault, libel, conspiracy, nuisance, maintenance, and the like, wherever the party injured has a remedy by action, as well as by indictment, he may submit the adjustment of the reparation which he is to receive to arbitrators. But it seems that, if an indictment have been already preferred, the express leave of the court must be obtained, to sanction a subsequent reference. Thus, upon one occasion,(y) in the Court of King's Bench, where cross. bills of indictment for a riot had been found, the parties consented to refer all matters in dispute, and executed mutual bonds of submission, but made no application to the court for leave to do so.

When this transaction came afterwards under the notice of the Court, upon a motion to set aside the award, great surprise was expressed that such a reference should have taken place without their cognizance; and it was said, that, in every case where parties were allowed, in prosecutions of this kind, "to talk together," the whole was under the eye of the Court, and their sentence formally allowed. Yet in another and previous case of a conspiracy,(z) where the same Court was moved to allow the prosecutor and

not very long since (the name of which I have in vain endeavoured to procure) where an indictment for an assault having been referred, and an award made, the Court of King's Bench were moved to set it aside, on the ground that such a matter could not be the subject of a reference; the Court, however, decided in favour of the award; the injury being merely to the individual. But see Watson v. M'Cullum, 8 T. R. 520. where the Court refused to make a submission a rule of Court, where part of the matters referred had been made the subject of an indictment.

(y) The King v. Coombs and others-the King v. Rant and others, E. T. 1797, reported in Kyd on Awards, 64.

(z) The King v. Lord Falkland and others. H. T. 1795, ibid.

the defendants to submit all matters in dispute to the decision of arbitrators, Lord Kenyon made no objection, but directed verdicts of acquittal to be entered in three indictments then pending.

It would seem, too, that in some cases where an action is not maintainable, the matter may, by leave of the Court, be submitted to arbitration.

A mere question of law may be referred to an arbitrator:(a) as may the construction which shall be put upon any particular instrument, will, or lease ;(b) nor will the Court, (c) under such circumstances, set aside the award, upon a suggestion that the arbitrator has mistaken the law.

(a) Young v. Walter, 9 Ves. 367.

(b) Obiter.—The Queen v. Sir Gilbert Heathcote. 10 Mod. 59. See Ainsley . Goff, H. T. 1791, reported in Kyd on Awards, 357, and in the Appendix. (c) But See post, Chap. “Arbitrators," title, "Mistake in Law," and cases there cited.

CHAPTER. II.

Parties.

Ir may be assumed as a general principle, that all persons, capable of suing and being sued, may be parties to a reference; while such as are under a natural or civil incapacity cannot be so.

With respect to a feme covert, there are particular cases, in which she not only may, but ought to be made a party to a submission.

Thus where upon a difference concerning certain land,(a) it was awarded that the defendant should convey it to the plaintiff, the latter brought a bill in equity to have the award performed; to which the defendant pleaded, that before the submission and the award made, he and his wife were jointly seised of that piece of ground, awarded to be conveyed to the plaintiff, and that she was no party to the submission; it was not doubted but that this plea was a good bar to the award, though the Court, in the particular case, decreed the party to convey, according to an agreement which he had entered into to this effect previous to the arbitration.

(a) Berry v. Wade and wife, Ca. Temp. Finch, 180; and see Lumley v. Hutton, 1 Rol. Rep. 268.

Again, if a leasehold interest were conveyed by a feme sole,(b) in trust for the use of herself, and she afterwards married, the husband alone would not have the power to dispose of it; and we may conclude, that to any reference of a dispute concerning it, she ought to be made a party. The same(c) if the wife were possessed of a chattel real en auter droit, as executrix, or as administratrix, or as guardian,(d) &c.; but if it were as executrix of a former husband that she took, (e) it would seem that she needs not be joined in the submission, since of such property her husband could dispose without her consent. It is quite clear, however, that in a matter affecting her separate interest, the wife would not be bound by the submission of the husband alone.

It has been laid down, generally,(g) that a feme covert, acting with respect to any property settled upon her, and of which she has the separate disposal, is competent to act, in all respects as a feme sole; and this has been, subsequently, declared by Lord Thurlow, to be a proper rule. (h) From this principle, therefore, it would appear to follow, that a married woman may submit to arbitration any disputes concerning such property, even without her husband being joined. The real difficulty would be, how to compel performance of the award. The

(b) March. 44.; and see March. 88.

(e) 1 Inst, 351. a.

(Plowden, 294.

(4) Thrustout v. Coppin, 3 Wils. 277. See Rol. Arb, D. 1.

(7) Peacock v. Monk, 2 Ves. 190.

Hulme v. Tenant, 1 Br. Ch. Rep. 16.

Courts would probably listen with great unwillingness to an application for an attachment against her, even if they had sanctioned the reference. In one case,(i) the Court of Chancery decreed a specific performance of a contract, entered into by a wife alone, to sell certain separate property, which she was authorized by settlement to dispose of; and in Allen v. Papworth,(k) where a bill was brought by husband and wife for an account, the wife together with her husband submitting that the profits of her separate estate should be applied to pay the husband's debts, she was declared to be bound by that submission, and the profits of her separate estate were, by decree, directed to be so applied; now there certainly seems to be a strong analogy between these cases, and that of decreeing performance of an award respecting the wife's separate property, where she has been a voluntary party to the submission. If this analogy exist, then we may collect, with tolerable clearness, the extent of her liability from the judgment given by the Chancellor in the case of Hulme v. Tenant,(7) which was the case of a bill brought by the obligee upon joint bonds by husband and wife, for 180l., to recover that sum out of the separate property of the wife; which separate property was created by deed, and was principally real estate conveyed to trustees in trust, to receive and pay the rents to the wife, and to convey, according to the appointment of the wife by will or deed: cer

(1) Grigby v. Cox, 1 Ves. 517; but see Emery v. Wase, 5 Ves. 846. (k) 1 Ves. 163.

(1) 1 Br. Ch. Rep. 16.