PART I.

CH. III. S. 5.

A plea on equitable grounds, stating the pendency of a reference in which the arbitrator was empowered to state on No plea on what terms the contract declared on was to be put an end to, equitable and in which it was agreed that no action should be brought grounds. by the parties, was held bad (b).

In some instances where the party wilfully proceeded in Discretion in enforcing it. Chancery, the Court of King's Bench expressed itself very strongly on the subject, and treated such conduct as a very great contempt of court (c). In other instances the courts of law have intimated that there might be something of a judicial discretion exercised, whether if the party proceeded in equity they would enforce compliance by attachment (d).

If it was supposed that there was an intention to proceed in equity, the submission should at once have been made a rule of court; for before there exists a rule of court forbidding it, filing a bill in Chancery was no contempt, though continuing the suit would be one after the submission had been made a rule of court (e). But submissions now have the effect of orders of court (f).

When an indictment and all matters in difference were referred, and one party proceeded with a suit in Chancery on one of the matters referred, notwithstanding the submission, the other party applied for an attachment; but the rule was refused, the original time for making the award having expired, and the enlargements of the time endorsed on the submission not having been made part of the rule of court, with the submission (g).

Clause not to sue precluded

arrest of

On the reference of a cause at Nisi Prius, the clause that no action or suit shall be prosecuted by the parties against each other, precluded a motion in arrest of judgment, or for judgment, or judgment for the plaintiff non obstante veredicto (). the clause prohibiting a writ of error barred motions in arrest

(b) Wood v. The Copper Miners' Co., 25 L. J. C. P. 166.

(c) R. v. Wheeler, 3 Burr. 1257; Coulson v. Graham, 2 Chitt. 57; Hilton v. Hopwood, 1 Marsh. 66.

(d) Nichols v. Chalie, 14 Ves. 265; Burton v. Petrie, quoted by Ld. Loughborough in Ld. Lonsdale v. Littledale, 2 Ves. jun. 451. See Grimstone v. Bell, 4 Taunt.

judgment non So obstante veredicto.

PART I. CH. III. S. 5.

Not prevent motion to set aside award.

of judgment, and appeals for error on the record, or on a special case stated by the arbitrator (i).

But a clause providing, "That no action or suit at law or equity shall be commenced or prosecuted against the arbitrators concerning their award when made, nor to impeach the award unless some collusion or other fraud be discovered or appeared therein," does not prevent a party to the submission from moving to set the award aside for a defect apparent on the face of it, though no fraud or collusion appear, for the clause is confined to actions and suits, and does not apply to the disputing its validity on motion ().

Effect in 11. Effect in equity of an agreement not to sue.]—A differequity of agreement not ence subsisted between the courts of law and equity upon the

to sue, not determined.

Plea of, sometimes allowed.

effect of an agreement not to sue. The Court of Chancery generally held, that a man could not, by agreement to refer, deprive himself of the right to apply to a court of equity, and considered it as extraordinary that a court of law should permit parties by contract, on a reference to arbitration, to deprive themselves of the benefit they might receive in equity. The exact effect of such a clause, however, has never been determined by the English courts of equity (7).

In a case in equity, much discussed and often supposed to have been overruled, the bill stated that the plaintiff and defendant were partners, and prayed a discovery of moneys paid and other partnership transactions, and relief. To this the defendant pleaded, that by the articles of partnership, if any controversies should arise between the parties they should be referred to arbitration, and that there should not be any suit at law or in equity. The Master of the Rolls, Lord Kenyon, allowed the plea (m).

His judgment was afterwards supported by a decision of Sir Edward Sugden, Lord Chancellor of Ireland (»).

Doubt, however, has been thrown upon the correctness of

(i) Moore v. Butlin, 7 A. & E. 595; Chownes v. Brown, 2 D. & L. 706; Jones v. Victoria Graving Dock Co., 2 Q. B. D. 314.

(k) Mackay, In re, 2 A. & E.

356.

(7) Nichols v. Roe, 3 M. & K. 431; Nichols v. Chalie, 14 Ves. 265.

(m) Halfhide v. Fenning, 2 Brown, C. C. 336.

(n) Dimsdale v. Robertson, 2 Jones & Latouche, 58.

this decision by Lord St. Leonards, in a later case (0); more recently Kindersley, V.-C., expressed an opinion against the validity of a negative clause withdrawing the decision from the ordinary tribunals (p).

PART I.

CH. III. 8. 5.

SECTION VI.

OF SUBMISSIONS MADE IN A CAUSE AT LAW.

PART I.

CH. III. S. 6.

a cause.

1. Forms of submissions made in a cause.]—When there is a cause depending, an order of court, or a judge's order, or master's order, or on the trial an order of Nisi Prius (which Submission in latter had, till recently, afterwards to be made a rule of court), will by common law be drawn up on consent of parties referring the cause, or the cause with other matters,

to arbitration (g).

the record.

The parties to consent must be the parties on the record, By parties on even though they are mere nominal parties, for a submission by the persons really interested, without the parties on the record, will not refer the cause (»).

Strangers to the cause are, however, often by consent made Strangers parties to the reference, and they will be bound by the award may be added. in the same manner as parties to the action (s).

stranger

If at Nisi Prius an order be drawn up by verbal consent of Consent of the parties and of a third party who is interested, settling the enforced action on terms which include a reference to arbitration of against him. certain matters, and it is provided that a judge's order of reference be drawn up; and the stranger afterwards refuse to be bound by it or to concur in settling the terms of the order of reference, the court will direct that it be referred to the master to settle the terms of such order, and will, if necessary, enforce it against the stranger by process of attachment (t).

(0) Scott v. The Liverpool Corporation, 28 L. J. Ch. 230, S. C. 3 De Gex & J. 334.

(p) Lee v. Page, 30 L. J. Ch. 857.

(1) Lucas v. Wilson, 2 Burr. 701; Harrison v. Smith, 1 D. & L.

876.

(r) Owen v. Hurd, 2 T. R. 643. Hawkins v. Benton, 2 D. & L. 465, S. C. 8 Q. B. 479; Stockley v. Shopland, 26 L. T. 586.

(t) Williams v. Lewis, 3 Jur. N. S. 1324, S. C. 7 E. & B. 928.

PART I.

CH. III. 8. 6.

Submission by order of court.

Arbitration
Act, 1889.

Submission by judge's

or master's order.

Arbitration

Act, 1889, power of

court given to a master.

Order of Nisi
Prius, how

drawn up.

These modes of referring are ordinarily termed submissions by rule of court, by judge's order, or by order of Nisi Prius; but, strictly speaking, the submission is the parol consent of the parties to the rule or order being drawn up, and the rule or order is but evidence of that submission (u).

11. Submission by order of court or judge.]—The rule of court referring a cause to arbitration by consent used to be drawn up as of course on motion papers for that purpose signed by counsel. Such a mode of submission was often also effected on a motion for a new trial or other summary application made openly in court (x).

The Arbitration Act, 1889, s. 14, provides for the reference by consent of the whole cause or matter, or any questions of fact arising therein, by order of court (y).

A judge or a master will grant an order referring a cause as a matter of course on a consent signed by the solicitors on both sides. Or the solicitor on one side may take out a summons calling on the other side to show cause why the action should not be referred on the terms agreed upon. To this summons a consent should be given in the usual way, and the clerk at the Central Office or in the registry will draw up the order. This mode of submission is very commonly adopted in every stage before the cause is entered at Nisi Prius ().

The judge's order is sometimes by consent drawn up empowering the arbitrator to direct a verdict to be entered (a).

By Order LIV. r. 12 (a), December, 1889, made pursuant to the Arbitration Act, 1889, s. 21, it is provided that "a master of the Supreme Court may exercise all the jurisdiction and powers conferred upon the court or a judge by the Arbitration. Act, 1889."

III. Submission by order of Nisi Prius.]-When the cause has been entered for trial, the more ordinary mode of referring

(u) Carpenter v. Thornton, 3 B. & A. 52; Hide v. Petit, 1 Cas. in Chanc. 185; Skee v. Coxon, 10 B. & C. 483.

(a) Archer v. Hale, 4 Bing. 464; Rigby v. Okell, 7 B. & C. 57,

(y) 52 & 53 Vict. c. 49.

(z) Archb. Pr. 1308, 13th ed.; 1587, 14th ed.

(a) Hawkins v. Benton, 2 D. & L. 465, S. C. 8 Q. B. 479.

PART I.

CH. III. S. 6.

it is by order of Nisi Prius on its coming on to be tried. This is an order of the court of Nisi Prius drawn up on the consent of the parties, and embodying the terms on which they agree to refer. A verdict is generally taken by consent for a fixed Verdict taken amount of damages, in most cases for the damages laid in the by consent. statement of claim (c). The leading counsel on each side usually select the arbitrator and make a minute of his name and of the terms of the reference on their briefs, and from these the associate or clerk of Nisi Prius draws up the order. He usually makes out two duplicate orders, and delivers them to the solicitors of the plaintiff and defendant respectively on their application. If this is not done the solicitor for the party interested in pressing on the reference obtains the order from the associate and serves a copy on the opposite party (d).

If the order was not drawn up, there was no reference under the control of the court, though a verdict had been taken by consent subject to the reference, and the ordinary powers of the court could not be exercised, as, for instance, to order witnesses to attend the arbitrator (e).

Effect when drawn up.

order not

Verdict pursuant to cer

Yet where a verdict was taken, subject to the "certificate of an arbitrator, the verdict entered pursuant to his certificate, tificate valid. made either during or after the assizes, would be as binding as a verdict of the jury, although no order of reference was drawn up and the parol submission was his sole authority (f). The benefit of taking a verdict was, that it facilitated the Benefit of enforcing the award; for when a verdict was taken, the award taking a of the arbitrator was looked upon as the finding of the jury. The same consequences followed as on a verdict; costs might be taxed and execution issued for the amount awarded (g), which was, strictly speaking, money recovered in the action (1⁄2). Now by section 15 (2) of the Arbitration Act, 1889, an award within that section is equivalent to the verdict of a jury.

verdict

As no after amendment will be allowed (i), care should be Verdict limit taken that the verdict be entered for a sufficient amount of of damages in

the action.