PART I. CH. III. S. 1. Should refer to the same matters. Advisable to take a warrant of attorney as collateral security. Dispute as to possession of Íand. Conveying lands to arbi by a certain day, it will be too late, though he nominate his arbitrator on the day, if he neglect to inform his opponent of the nomination till the day after (b). If a party is bound to appoint an arbitrator, he performs his agreement by making the appointment, though the arbitrator will not act (c). It is very important that the appointment of an arbitrator by each party should refer to the same subject-matter. If A. appoint his arbitrator to determine a dispute respecting the construction of a lease, and the damages A. has sustained, and B. appoint his arbitrator to decide on the construction of the lease, and not as to damages, an award of damages to A. will be invalid (d). III. Taking collateral security to enforce the award.]—It is sometimes prudent to take a warrant of attorney to confess judgment for a specific sum as a collateral security for the performance of an award, in order that execution may be immediately taken out, either against the property or the person of him who neglects or refuses to perform the award. This was more important formerly, though performance could then generally be enforced by attachment, yet, as that process only issued from a court of law in term time, if the award were made in vacation, or too late in term for the opposite party to show cause against a rule for an attachment, the successful party would have to wait till the next term for the assistance of the court. The defeazance of the warrant of attorney should contain the substance and effect of the bond or agreement of submission, with a declaration that no execution should issue until non-performance of the award. Such a security was peculiarly beneficial in the case of the submission of the title to land whenever it was probable that the award might direct a change of possession; for formerly if a party in possession were awarded to deliver possession of land to the other, the only mode by which possession could be obtained was by ejectment (e). When the nature of the case is such as to require convey (b) Tew v. Harris, 11 Q. B.7; Thomas v. Fredericks, 10 Q. B. 775. (c) Cooper v. Shuttleworth, 25 L. J. Ex. 114. (d) Davies v. Price, 6 L. T. N. S. 713, S. C. 10 W. R. 865. (e) Jarm. & Bythewood's Conv. Vol. II. p. 701, 3rd ed.; p. 639, 2nd ed. See Doe d. Greville v. Roper, Harr. Woodf. Land. & Ten. p. 790, 4th ed.; Doe d. Morris v. Rosser, 3 East, 15. PART I. CH. III. S. 1. trator on trust to convey ances of lands, as when a partition is to be made, and it is considered probable that a difficulty may be experienced in compelling a party to execute conveyances pursuant to the award, the expedient may sometimes with advantage be pursuant to adopted of conveying the entirety of the lands in the first instance to the arbitrator upon trust, to convey to the several parties the portions that shall be respectively awarded to them (ƒ). IV. Arbitration pending cannot be pleaded at law or equity.] Notwithstanding some doubtful expressions in older cases (g), it is clear law now that the pendency of an arbitration cannot be pleaded to an action for the same demand (); nor could it be pleaded to a suit in equity (at least where there was no covenant not to sue) even though the submission were made a rule of a court of common law (i). award. Submission before action action. no bar to accord and But an agreement that in consideration that the defendants Agreement to would consent to refer matters in dispute in an action, the refer when plaintiff would accept such agreement in satisfaction of all satisfaction. damages in respect of certain other matters, and a reference thereon, may be pleaded as a good accord and satisfaction to an action by the plaintiff in respect of the last-mentioned matters (k). To an action for goods sold, a plea that a dispute arose as to part, and that the defendant had by agreement paid the price of that part to an arbitrator to abide his decision upon it, and had paid the residue of the money due to the plaintiff, was held a good plea (7). A plea on equitable grounds, amounting to the statement No plea on equitable of the pendency of an arbitration in which the arbitrator had grounds. power to decide on what terms the contract declared on was to be put an end to, and that by the agreement of reference no action was to be brought between the parties, was held not good (m). The effect of an arbitration on the power of a party to take (ƒ) 6 Jarm. & Bythewood's Conv. 586, 3rd ed. (g) Kill v. Hollister, 1 Wils. 129. (h) Harris v. Reynolds, 7 Q. B. 71. See also Livingston v. Ralli, 24 L. J. N. S. Q. B. 269. (i) Cooke v. Cooke, L. R. 4 Eq. 77, S. C. 36 L. J. Ch. 480. (k) Williams v. London Commercial Exchange Company, 10 Ex. 569. (1) Page v. Meek, Q. B. 7 Nov. 1862, 1 N. R. 20. (m) Wood v. The Copper Miners' Company, 25 L. J. C. P. 166. PART I. CH. III. S. 1. Railway Proceedings stayed in action proceedings in a court of law or equity in respect of a subjectmatter of the reference, is further much considered in ss. 4 and 5 of this chapter. It would seem that an agreement to refer between two railway companies under the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59), may be pleaded in bar to a suit (n). v. Staying proceedings contrary to reference.]—If the submission contained a stipulation that no action should be brought after brought, the court would, on application, before the recent statutes, stay the proceedings in any action commenced contrary to the agreement (o). reference. Not so when arbitrators fail to appoint umpire. Action by assignees after reference But where, by a deed of partnership, in case of dispute each party was to appoint an arbitrator, and the two arbitrators were to appoint an umpire before they commenced proceedings, the court refused to stay proceedings in an action, as, although the arbitrators were appointed, they had not selected an umpire, and the appointment of an umpire was held by the court a condition precedent to the acting of the arbitrators (p). A plaintiff after referring the action became insolvent. His assignees brought a fresh action for the same matters. by insolvent. The court refused the application of the defendant to stay the proceedings in the second action (9). Stay under By the Arbitration Act, 1889 (), s. 4, it is providedIf any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court or a judge thereof if satisfied that there is no sufficient reason why the matter should not be referred in (n) Watford, &c. Ry. Co. v. London and North-Western Ry. Co., 38 L. J. Ch. 448. (0) Dicas v. Jay, 6 Bing. 519; Moscati v. Lawson, 1 II. & W. (p) Bright v. Durnell, 4 Dowl. 756. (q) Sturgis v. Curzon, 21 L. J. Ex. 38. (r) 52 & 53 Vict. c. 49. accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. PART I. CH. III. 8. 1. Procedure Act, 1854. This clause is similar in substance though not in language Common Law to s. 11 of the Common Law Procedure Act, 1854, now repealed. The following decisions on the terms of that section will in most cases be applicable to the new section (s). There ought to be an affidavit of the applicant's readiness Affidavit. and willingness to refer (t). not referring. Unless some reason is shown why the matters ought not to Reason for be referred, the court will presume that there is none (u). But the court has a discretion (r), and where the point is one of law and more fitted to be decided by a judge it will refuse the application (y). So, also, where the defendants had applied for time to plead and had agreed to take short notice of trial (z). stayed. The Court of Queen's Bench held that a liberal construc- In what cases action will be tion ought to be given to the old section, and that if an action was brought for a claim under a contract, namely, for freight under a charter-party, to which the defendant admitted that he had no defence, but set up a cross claim for damages, by reason of the ship being unseaworthy, the defendant, as the contract provided for arbitration, was held to be in a position to pray the court in its discretion to stay the applicant's action, and so to force a reference to arbitration of their mutual claims (a). In the Exchequer, however, Bramwell, B., is reported to have expressed his disapproval of that decision; and that court, in an action for freight, not against the charterer, but against a surety who guaranteed payment of the freight, (8) See as to old practice, West London Dairy Society v. Abbott, 44 L. T. 376. See Horton v. Sayer, 29 L. J. Ex. 28, S. C. 4 H. & N. 643. (t) See Piercy v. Young, 14 Ch. D. 200; Halsey v. Windham, W. N. (1882) 108. (u) Hodgson v. Rail. Pass. Ass. Co., 9 Q. B. D. 188. See Fox v. Rail. Pass. Ass. Co., 54 L. J. Q. B. 505. (x) Per Bowen, L. J., L. C. & (y) Lyon v. Johnson, 40 Ch. D. (z) Smith & Co. v. British Marine Ins. Co., W. N. (1883) 176. (a) Russell v. Pelegrini, 26 L. J. Q. B. 75, S. C. 6 E. & B. 1020. PART I. CH. III. S. 1. Action charging fraud. Rule in Construction of charter party. Effect of clause in policy. refused to act under that section; and said that the surety could not set up any cross claim which was not a defence to the liquidated demand for freight, or rely on any breach of warranty on the part of the shipowner, for which the charterer alone could sue (b). The Court of Common Pleas, however, more recently acted. on the decision in Russell v. Pelegrini (c). In an action for breach of contract, where the plaintiff's case was that the defendant had fraudulently delivered an inferior kind of linseed cake, and the contract provided that any dispute as to quality should be settled by arbitration in the usual manner, which was by two brokers, the Court of Common Pleas, in the exercise of its discretion, refused the defendant's application to stay the action, considering that a question whether a gross fraud had been committed was one unfit to be determined by such an arbitration (d). But where the action was for breach of warranty as to the quality of some seed sold, and no question of fraud between the parties could properly arise, the same court stayed the action (e). In the Chancery Division the rule seems to be that where fraud is charged the court will in general refuse to send the dispute to arbitration if the party charged with the fraud desires a public inquiry. But where the objection to arbitration is by the party charging the fraud the court will not necessarily accede to it, and will never do so unless a primâ facie case of fraud is proved (f). The action will be stayed though the only question be one of law on the construction of a charter-party (g). An arbitration clause, in a policy of insurance, though not sufficient to bar the action, may afford a good ground for application under this section (h). Where an action was brought alleging unfair conduct by (b) Daunt v. Lazard, 27 L. J. Ex. 399. (c) Seligman v. Le Boutillier, L. R. 1 C. P. 681. (d) Wallis v. Hirch, 26 L. J. C. P. 72, S. C. 1 C. B. N. S. 316. See Lury v. Pearson, 1 C. B. N. S. 639; and Smith v. Allen, 3 F. & F. 156. (e) Hirsch v. Im Thurn, 4 C. B. N. S. 569, S. C. 27 L. J. C. P. 245. (f) Russell v. Russell, 14 Ch. D. 471; Minifie v. Railway Passengers' Assurance Society, 44 L. T. N. S. 552. (9) Randegger v. Holmes, L. R. 1 C. P. 679. See Forwood v. Watney, 49 L. J. Com. Law, 447. (h) Roper v. Lendon, 28 L. J. Q. B. 260, S. C. 1 E. & E. 825. |