Tayler v. Marling (1840), 2 M. & G. 55; 10 L. J. C. P. 26). But it would probably be considered by the Court a sufficient ground for granting leave to the other party to revoke the submission (see Gaffney v. Killen (1861), 12 Ir. C. L. Rep. App. xxv.; Marsh v. Wood (1829), 9 B. & C. 659).

8. Procedure on application for leave to revoke.

All the jurisdiction and powers conferred upon the Court or a judge by the Arbitration Act are exercised by a Master of the Supreme Court (Order LIV., r. 12A). Application for leave to revoke should therefore be made to a Master by a summons in chambers (for form of summons for leave to revoke, see Appendix of Forms). It should be made before the award is executed, and will not be granted ex parte (Clarke v. Stocken (1836), 5 Dowl. 32; 5 L. J. (N. S.) C. P. 190).

Appeal.

An appeal lies from the Master's order in the ordinary way to the judge, and it has been held that where a judge makes an order on such an appeal it is a matter of practice and procedure under the Supreme Court of Judicature (Procedure) Act, 1894 (57 & 58 Vict. c. 16), s. 1 (4), and the appeal from the judge is therefore to the Court of Appeal and not to the Divisional Court (Portland Urban District Council and Tilley & Co., In re, [1896] 2 Q. B. 98; 65 L. J. Q. B. 527). Having regard to later decisions in the Court of Appeal, the correctness of this decision seems questionable (see Watson v. Petts, [1899] 1 Q. B. 54; 67 L. J. Q. B. 970; Long v. Great Northern & City Rail. Co., [1902] 1 K. B. 813; 71 L. J. K. B. 598; Frere & Co. and North Shore Mill Co., In re, [1905] 1 K. B. 366; 74 L. J. K. B. 208).

9. Injunction.

The Courts have exercised the power to interfere by injunction (1) where the contract which contains the arbitration clause is impeached that is to say, where it is claimed that for some reason (e.g. fraud, mistake, or surprise) the contract is not binding; (2) where there is corruption or misconduct of the arbitrator. But the exercise of the power in respect of the construction of contracts is much controlled by s. 19 of the Arbitration Act. That section provides "a method by which the contractor can, if he feels aggrieved, obtain the opinion of the Court upon the true construction of the contract" (per Lindley, L.J., Jackson v. Barry Rail. Co., [1893] 1 Ch., at p. 246).

Contract impeached.

The power of the Court was fully discussed in Kitts v. Moore & Co., [1894] 1 Q. B. 253, C. A., in which case the Court decided that it had

jurisdiction to interfere by injunction to restrain a defendant from proceeding to arbitration where an action had been brought impeaching the instrument containing the agreement of reference, and it restrained the arbitration proceedings until the right to impeach the agreement had been determined. The grounds on which the agreement was impeached were not formulated in that case (see also Mylne v. Dickinson (1815), G. Cooper, 195; Maunsell v. Midland Great Western (Ireland) Rail. Co. (1863), 1 H. & M. 130; South Western Rail. Co. v. Coward (1848), 5 Rail. Cas. 703; Witt v. Corcoran (1871), 8 Ch. App. 476, note).

In Smith, Coney & Barrett v. Becker, Gray & Co., [1916] 2 Ch. 86, where the plaintiffs alleged that the contract (which made arbitration a condition precedent to any action being brought) was illegal and void, the Court refused to grant an injunction, on the ground that the plaintiffs had not made out that the contract was illegal or involved an illegality, and that it was not the practice of the Court to grant an injunction where there was a probability only, and not a certainty, that the agreement might turn out to be no contract. In this case, however, the defendants would have been left without any remedy if the injunction had been granted, for the award of the arbitrator was made a condition precedent to the right of either contracting party to sue the other.

In Edward Grey & Co. v. Tolme & Runge (1914), 31 T. L. R. 137, the Court of Appeal refused to interfere with the discretion of Scrutton, J., who had refused to stay an action which the plaintiffs had brought claiming an injunction to restrain the defendants from proceeding to arbitration under certain contracts, on the ground that the contracts were dissolved on the outbreak of war.

Arbitrator exceeding his jurisdiction.

The Court has no jurisdiction to issue an injunction to restrain a party from proceeding with an arbitration in a matter beyond the agreement to refer, although such arbitration proceedings may be futile and vexatious. In North London Rail. Co. v. Great Northern Rail. Co. (1883), 11 Q. B. D. 30, Brett, L.J., said, at p. 35 et seq. (approved in Steamship Den of Airlie Co., Ltd. v. Mitsui & Co., Ltd. (1912), 106 L. T. 451, C. A.): "When the whole matter is beyond the jurisdiction of the arbitrators, the fact of the appellants going on with the futile arbitration is no legal injury. . . . Therefore it seems to me that before the Judicature Act neither the Court of Chancery nor any Common Law Court would have had any jurisdiction to issue an injunction to enjoin the appellants from proceeding with the futile arbitration. . . . In my opinion, there is nothing in the Judicature Act which enables any part of the High Court to issue an injunction in a case in which, before the Judicature Act, there was no legal right on the one side, and no legal

liability on the other, at law or in equity." This case was followed in. Wood v. Lillies (1892), 61 L. J. Ch. 158 (see also Pickering v. Cape Town Rail. Co. (1865), L. R. 1 Eq. 84; Farrar v. Cooper (1890), 44 Ch. D.. 323; and M'Harg v. Universal Stock Exchange (1895), 11 T. L. R. 409).

Nothing to refer.

The Court, however, in one case, restrained arbitration proceedings where there was nothing to refer (Sisson v. Oats (1894), 10 T. L. R. 392).

To preserve status quo pending arbitration.

The Court, in order to preserve the status quo, in a case where oneof the parties to a contract had given a notice purporting to dismiss the contractor, restrained the party from acting on the notice until judgment or further order, or until a reference to arbitration provided for by the contract had been held (Foster v. Hastings Corporation (1903), 87 L. T. 736).

Action in foreign Court.

The Court will not grant an injunction which will have the effect of specifically enforcing a reference to arbitration. But where a contract provided that the same should be construed and take effect as a contract made in England and in accordance with the law of England, and there was an arbitration clause making the award a condition precedent,. the Court restrained an action in a foreign Court in breach of such contract, except under or in pursuance of an award under the contract. The effect of bringing the action in a foreign Court was to deprive the other party of the right to apply to the English Court for a stay in order to prevent the dispute from being decided otherwise than by arbitration (Pena Copper Mines, Ltd. v. Rio Tinto Co., Ltd. (1912), 105 L. T. 846).

Corruption or misconduct of arbitrator.

The Court has jurisdiction to restrain an arbitrator by injunction from acting in cases where, in the opinion of the Court, he is guilty of misconduct and is unfit to act. "The Court has jurisdiction to set aside an arbitration on the ground of corruption subsequently proved; and if corruption is proved beforehand, so that the arbitrator is unfit to sit, it seems to me that, by analogy to the writ of prohibition which goes to inferior Courts, to prevent a Court that is incompetent from trying a case, there must be a similar jurisdiction to prevent the throwing away of expense and trouble, to say nothing of the delay involved in proceeding with the reference before an arbitrator who has no power of disposing of it" (per Sir G. Jessel, M.R., The Malmesbury Rail. Co. v. Budd (1876), 45 L. J. Ch. 271). In Beddow v. Beddow (1878), 9 Ch. D. 89, the same Master of the Rolls issued an injunction on the ground that the arbitrator had misconducted himself, the misconduct being

that he had become indebted to one of the suitors without the knowledge of the other side.

In reviewing the above cases in North London Rail. Co. v. Great Northern Rail. Co. (1883), 11 Q. B. D., Brett, L.J., at p. 37, said: "Therefore, in both these two last cases before the Judicature Act, the Common Law Courts would certainly have removed those arbitrators, and so prevented them from proceeding with the arbitration, and it seems to me that what the Master of the Rolls practically did was the same-namely, to remove the arbitrator in each of these cases" (see also Drew v. Drew (1855), 2 Macq. 1, and Pescod v. Pescod (1887), 58 L. T. 76, in which case Kay, J., restrained an umpire from acting who had been improperly appointed by lot).

Damages the proper remedy.

But the first consideration of the Court will always be whether damages are the proper remedy. "The very first principle of injunction law is that you do not obtain injunctions for actionable wrongs for which damages are the proper remedy" (per Lindley, L.J., London & Blackwall Rail. Co. v. Cross (1886), 31 Ch. D. 354, at p. 369).

In Doleman v. Ossett Corporation, [1912] 3 K. B., at p. 268, Fletcher-Moulton, L.J., obiter said: "It will be evident, however, that the remedy in damages must be an ineffective remedy in cases where the arbitration had not been actually entered into, for it would seem difficult to prove any damages other than nominal. In the case of an arbitration pending, which was rendered abortive by the action, substantial damages might perhaps be proved, because it would be open to a jury to give damages commensurate with the costs to which the plaintiff had been uselessly put in the arbitration."

10. Application of the section to compulsory arbitrations
under statutes.

In a case under the Wakefield Corporation Waterworks Act, 1880, Hawkins, J., said: "The power of the Court to give leave to revoke, if it existed at all, was to be found in the Act of 3 & 4 Will. IV. c. 42”; but after reading s. 39 of that statute his Lordship did not think that this was a submission to reference within those words. He looked upon

it as a compulsory arbitration, not a submission by the parties. They must either go to this tribunal appointed by the Legislature or they were stranded (Wakefield Corporation v. The Guardians of the Wakefield Union (1888), 4 T. L. R. 561).

This decision was before the Arbitration Act, which provides by 8. 24 that the Act shall apply to every arbitration under any Act . . . as if the arbitration were pursuant to a submission.” That removes the difficulty as to the arbitration proceedings provided for by the Act

not being pursuant to a submission, but there is an exception in s. 24, viz. "except in so far as this Act is inconsistent with the Act regulating the arbitration or with any rules or procedure authorised or recognised by that Act." It is doubtful whether, even having regard to the provisions of s. 24, the Court could or would revoke a "submission" under a statute when the effect would be as in the above case.

Illustration.

An arbitration took place under s. 51 of the Wakefield Corporation Waterworks Act, 1880, which required the corporation to sell certain things "at such price and subject to such terms, &c., as may be settled by agreement. ... or failing such agreement as may be determined by an arbitrator to be appointed . . . by the Local Government Board." Differences arose and an arbitrator was appointed by the board. The arbitrator sat and heard evidence, but before the evidence had been completed the guardians obtained a rule nisi to revoke their submission on the ground that the arbitrator had admitted evidence not properly admissible. Held that there had been no submission or consent to arbitration, there being nothing of that nature in the appointment of an arbitrator under the above section (Wakefield Corporation v. Guardians of the Wakefield Union (1888), 4 T. L. R. 561).

SECTION 2.

THE SUBMISSION.

1. Object and effect of the section.

2. Form of submission and stamp duty..

Agreement under hand.

Submission by bond.

Submission by deed.

Execution of submission where several parties.

3. Contents of submission. Jurisdiction of Court cannot be ousted. 4. Interpretation of submission. Meaning of particular expressions. "All matters in difference."

“All suits, controversies, and demands."

"All debts, trespasses, and injuries." "All demands due and owing." "All

actions."

"All actions and complaints."

"All matters... between the parties." "All matters. . . in the cause." "Wool in process of wooling, &c."

Disputes as to quality of goods.

"All disputes."

"All disputes arising out of the contract."

Disputes between partners.

Bill of lading and charter-party.

"Meaning and intention of " a charter-party.

Differences between a "company and the members."
Mining lease.