Under these acts of parliament, the class of cases which may, or which must, be referred to A., have been greatly enlarged. The railway acts, in particular, have largely contributed to this kind of amicable determination, although the parties in such cases cannot be said to have much discretion in the matter. Under the provisions, again, of the judicature act, 1873, and the act 17 and 18 Vict. c. 125, ss. 3 and 6, parties may be compelled by the court to refer to official referees matters which involve intricate accounts or scientific or local examination.
Among the questions that cannot be referred to A., are matters arising out of the administration of the criminal law in the case of felonies and relating to agreements or transactions against public policy. Felonies and offenses of a public nature cannot be referred, because the public safety and good require them to be punished, and for this purpose they can only be properly tried in one of the ordinary courts of the country.
Withrespect to matters which cannot be referred on account of their being against public policy, the rule is so obviously just that no illustration is required.
But there arc certain misdemeanors which may be either settled by agreement or by means of an A., on a principle of very general application stated by chief-justice Gibbs —that where there is a remedy, by action as well as by indictment, a reference of the matter in controversy is good. And in these cases of misdemeanor, a compromise or settlement under a reference may be made, even after conviction, but with the sanction of the court.
As to the parties who may make a reference to A., it may be stated generally, that every one capable of making a disposition of his property or release of his rights may make a submission to an award, and in this category may be placed a married woman, who has a separate estate settled to her separate use, and there are even cases where a reference between a husband and wife has been held valid; and of course a husband may submit to A. differences respecting his wife's personal estate which has not been settled to her separate use.
Respecting the powers of infants or persons under age to submit to A., there are numerous decisions in the courts of law and equity: but they go upon refinements and nice distinctions more suited for the professional lawyer than for the ordinary reader, and we therefore do not think it necessary to give any explanation of them in a popular article such as this professes to be.
Partners and corporations may make references to A. on the principles already explained, and according to the relation in which they stand to the matter in dispute.
Those who cannot submit to A. are persons in the following positions: Persons who cannot contract ; married women without any estate settled to their separate use; and along with them, as laid down in old ante-reformation books, persons professed in religion, and persons under duress. There is an exception to the incapacity of married women to refer to A. 'where the husband, by exile, banishment, or other cause, is held to be civilly dead, and when he is an alien enemy. To these exceptions it may be added, that in suits respecting the property of charities the court of chancery will not permit a reference, however advisable such a course may seem, unless the attorney-general gives his consent.
It has generally been the opinion of the legal profession, and held to be the doctrine of the courts, that a reference by the consent of counsel in a cause is binding on his client; and lord chancellor Eldon once said, that it was for the counsel to consider whether he was authorized to refer, and if so, lie (the chancellor) would act on the con sent so given; and the right and privilege of counsel to make a reference has been very strongly laid down in the Scotch courts. But a very recent case in the court of common pleas (Swinfeu v. Swinfeu), where a compromise by counsel was successfully resisted by the client, has very much unsettled the English law on this subject; and now the feeling of the bar in England is, that it is unwise to refer or compromise a litigation on the independent authority of counsel.
Submissions to reference may also be made by executors and administrators, by trustees, by the committee of a lunatic, and by the officer of a public company, who is authorized by a statute to sue and be sued in the name of the company. And there are persons especially empowered to refer by the statutes which we have already enumerated.