CHAPTER III.

WHAT MATTERS MAY BE REFERRED TO ARBITRATION.

in dispute.

WHATEVER may be the subject of civil litigation may be CHAP. III. referred to arbitration. All disputes between parties, and Civil matters all actions (Bac. Ab. "Arb." A.),-even an action for breach of trust in charity, but only with the consent of the Attorney-General (Att.-Gen. v. Fea, 4 Madd. 274),— may be referred. And an action may be referred at any stage. The parties may even refer to arbitration the question whether a judgment has been properly obtained, whether it has been satisfied, whether it is void, or even whether it is erroneous, and an award might be made that such judgment should be released or satisfied. (Barry v. Grogan, 16 W. R. 727; Roberts v. Mariett, 2 Wm. Saund. 190.) A stranger to the action, but interested in the subject-matter, may be a party to an order referring the action, and be bound by it. (Williams v. Lewis, 7 E. & B. 929.)

A suit for divorce cannot be referred so as to enable Suits for divorce. the arbitrator by his award to annul a marriage. The power to do so is vested in the Probate, Divorce, and Admiralty Division of the High Court of Justice only, and no voluntary agreement of husband and wife could. confer upon anyone else a like power. But a husband Terms of and wife may refer to arbitration the question whether separation. a sufficient cause for separation does or does not exist, instead of applying to the court; and they may bind themselves to abide by the terms of separation awarded by the arbitrator. (Soilleux v. Herbst, 2 B. & P. 444; Bateman v. Ross, 1 Dow. 235; Hart v. Hart, 30 W. R. 8; 18 Ch. D. 670; 50 L. J., Ch. 697; and see Vansittart v.

CHAP. III.

Questions of law and fact.

Future differences.

Differences

respecting wills.

Vansittart, 27 L. J., Ch. 222; 2 De G. & J. 249; Besant v. Wood, 12 Ch. D. 622; 48 L. J., Ch. 497; Cahill v. Cahill, L. R., 8 App. Cas. 420.) And where the parties on the eve of trial of a suit by the wife for judicial separation, by reason of cruelty, agreed that the cause should not be moved, and that arbitration should be resorted to, the court refused to allow the petitioner to proceed with the original suit, she having wilfully interposed obstacles to the arbitration. (Hooper v. Hooper, 29 L. J., Prob. & M. 59; 30 ib. 49; 1 Sw. & Tr. 602.)

The decision of bare questions of law or of fact may be referred to arbitration, and the award will be binding, whether right or wrong in point of law. (Ching v. Ching, 6 Ves. 282; Price v. Hollis, 1 M. & S. 105; Steff v. Andrews, 2 Madd. 6; Gueret v. Audouy, 62 L. J., Q. B. 633.) So may the ascertainment of the amount to be paid to contractors for work done (Scott v. Liverpool Corporation, 28 L. J., Ch. 230), or the determination of the price to be paid for the purchase of property. (Round v. Hatton, 2 Dow. N. S. 446.) But, as we have previously noticed (ante, p. 3), where there have been no differences" between the parties previous to their submission, and the reference is to a person merely to value or certify a sum due, without conducting any judicial inquiry, it is not strictly a reference to arbitration.

66

Parties may agree to refer future differences, though none at present exist (52 & 53 Vict. c. 49, s. 27); and an arbitrator may make a binding award on the parties to a submission as to their future enjoyment of property, or future conduct in relation to the matters in difference. (Wrightson v. Bywater, 3 M. & W. 199; Boodle v. Davies, 3 A. & E. 200.)

Though a testator may provide that questions respecting his property may be submitted to arbitration by his executors or trustees, he cannot provide that if any differences respecting his will arise they shall be finally

determined by an arbitrator named.

Skin. 469; but see 2 Byth. 627, n.)

(Philips v. Bury, CHAP. III. Disputants them

selves, however, may refer to arbitration the construction of a will. (Steff v. Andrews, 2 Madd. 6.)

purely

criminal not

arbitrable.

Where the subject-matter is clearly illegal (Steers v. Matters Lashley, 6 T. R. 61), or so purely criminal that it cannot illegal or under any circumstances be made the subject of a civil action (Bac. Ab. "Arb." A.; R. v. Bardell, 5 A. & E. 619; R. v. Hardey, 14 Q. B. 529), or is an offence of a public nature for which no private person can recover compensation (Keir v. Leeman, 6 Q. B. 308; 13 L. J., Q. B. 359; Edgcombe v. Rodd, 5 East, 294; R. v. Blakemore, 14 Q. B. 544), it cannot be referred.

matters may

But matters criminal, for which the injured party has What a remedy by action as well as by indictment, may be criminal referred. (Baker v. Townshend, 1 Moore, 120; 7 Taunt. be referred. 422; Keir v. Leeman, supra, per Denman, C.J.) And they may be referred, before indictment, by the simple agreement of the parties; but, after an indictment is preferred, it seems the consent of the court in which the indictment is pending should first be obtained. (Watson on Awards, 59; Kyd on Awards, 64; R. v. Bardell, 5 A. & E. 619.) The reference may be after as well as before conviction. (Beeley v. Wingfield, 11 East, 46.)

Where a company has entered into an agreement which is ultra vires, any agreement to refer disputes arising out of it to arbitration is equally ultra vires. (Maunsell v. Midland Gt. Western Rail. Co., 1 H. & M. 130; 32 L. J., Ch. 513.)

There are many matters, not otherwise referable to arbitration, for which special provisions have been made by statute.

When a ultra rires.

reference is

Matters

referable by statute.

Matters of appeal at

quarter

By 12 & 13 Vict. c. 45, s. 12, all orders, rates, and other matters, in respect of which notice of appeal to the general or quarter sessions of the peace shall have been sessions. given, and for which the remedy is by such appeal (not

CHAP. III.

Reference by the parties.

By the court.

being a summary conviction or order of bastardy, or any proceedings under the Acts relating to the excise, customs, stamps, taxes, or post office), the parties, by an order of a judge of the King's Bench Division, may refer to the arbitration or umpirage of any person or persons, and agree that such submission may be made a rule of court, and the provisions of 9 & 10 Will. 3, c. 15 [now the Arbitration Act, 1889, which has repealed and replaced the earlier statute], shall apply as to the enforcing or setting aside an award or umpirage under the Act, and every award and umpirage under the Act shall be as binding and effectual as if the same had been a regular judgment of the sessions, and may, on the application of either party, be enrolled among the records of the court. This section does not, like section 13, give an express power enabling the superior court to refer the case back again to the arbitrator. The section only applies where the reference is by judge's order, and not where it is by private agreement. (Leicester Waterworks Co. v. Barrow Union, 48 L. J., M. C. 41; 4 Q. B. D. 18.)

By section 13 of the same Act, after such an appeal has been brought before a court of quarter sessions, such court, with the consent of the parties, may refer it on such terms as the court shall think reasonable. And the order of reference may be made a rule of the King's Bench Division, and the award of the arbitrator or the umpirage of the umpire may, on motion by either party at the sessions next or next but one after such award or umpirage shall have been finally made and published, or after the decision of the King's Bench Division on any motion for setting aside the same, be entered as the judgment of the court of general or quarter sessions in the appeal, and shall be as binding and effectual as if given by the court. The King's Bench Division may refer the matter back to the arbitrator, or set aside. the award, and order the court of sessions to enter

CHAP. III.

continuances, and hear the appeal. Under this section the court of sessions might make an order that the costs should or should not abide the event of the award, or be in the discretion of the arbitrator. (West London Extension Rail. Co. v. Fulham Union, 39 L. J., Q. B. 178; L. R., 5 Q. B. 361; Reg. v. JJ. West Riding, 34 L. J., M. C. 142.) The award or umpirage having been made, the court of quarter sessions is to be moved, not to make any order respecting it, but to enter it as the judgment of the court. (Reg. v. JJ. West Riding, supra.) Any application to impeach or remit the award must be to the King's Bench Division. The 14th section provides Abortive that if, either from the death of the arbitrator or umpire reference. or any other cause, it has become impossible that an award or umpirage can be made, the King's Bench Division may order the court of sessions to enter continuances and hear the appeal.

under the

L. C. C. Act,

1845.

By the L. C. C. Act, 1845 (8 & 9 Vict. c. 18), persons Compensation claiming as compensation or purchase money more than 50l. (s. 23), in respect of a greater interest than as tenant from year to year (s. 121; R. v. Manchester, &c. Rail. Co., 23 L. T. 287) in lands of which promoters of public undertakings have given notice of their intention to take (s. 18), or which will be, or have been, injuriously affected by the works (ss. 18, 68), may, if they desire to have the claim settled by arbitration, and signify such desire in writing to the promoters before they have issued their warrant to summon a jury, and state the nature of the interest and the amount claimed, have it so settled accordingly (ss. 23, 25--37; see Browne & Allan on Compensation, 62 et seq.). Questions as to severed lands (s. 94), as to interests omitted to be included (ss. 124126), and as to the price of surplus lands (s. 130), may be decided in like manner. As these clauses are incorporated with the Acts of all public undertakings requiring the acquisition of land, they are of extensive