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In a submission under the L. C. C. Act, 1845, the arbitrator cannot decide a question of title (Brandon v. Brandon, 34 L. J., Ch. 333), and he can only award in respect of interests actually claimed by notice. (Re Rhys and Dare Rail. Co., L. R., 6 Eq. 429; 37 L. J., Ch. 719.)


Submission under L. C. C. Act, 1845.

A reference of an action is the action as it stands Submission when the order is made, and the arbitrator could not subsisting includes only deal with matters raised by subsequent pleadings. differences. (Ashworth v. Heathcote, 6 Bing. 596; Atkinson v. Jones, 1 D. & L. 225; Cooper v. Langdon, 9 M. &. W. 60.)

By R. S. C. Order XXXVI., r. 58, where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment.

A reference of all matters in difference between the parties gives the arbitrator power over all matters down to the period of submission, but does not enable him to award on future and contingent claims (Re Brown and Croydon Canal Co., 9 A. & E. 522; Banfill v. Leigh, 8 T. R. 571); nor will a submission of all existing differences and "anything in anywise relating thereto " extend the arbitrator's authority to matters arising after the submission, since matters relating to existing circumstances must themselves exist at the same time as the existing differences. (Re Morphett, 2 D. & L. 978, per Coleridge, J.) But the subsequent alteration or amendment of the instrument of reference by the parties. makes the date thereof the period of the submission. (Watkins v. Phillpotts, M'Cl. & Y. 393.)


Matters arising subsequently to the date of the sub- Subsequent mission, including accruing or contingent claims, may, included by by agreement of the parties, be included in the reference agreement (Re Brown and Croydon Canal Co., supra); and in Brown v. Watson (8 Scott, 391; 8 Dow. 22), where from the peculiar terms of the submission it appeared that the


or by inference.

parties meant to treat a growing demand as if it were a bygone claim, the arbitrator was held justified in taking it into his consideration. (And see Petch v. Conlan, 7 Dow. 426.) Where an action having been brought for breaches of covenant to repair, the order referring the action and all matters in difference between the parties to an arbitrator, gave him power "to decide all matters and questions to do justice between the parties, and power to order and direct what shall be done by either or both of the said parties, either immediately or prospectively, whether relating to the action or to the other matters in difference," the submission was held to empower him to award damages for breach of covenant accruing up to the date of the award. (Lewis v. Rossiter, 44 L. J., Ex. 136; 23 W. R. 832.)

A power to deal with subsequent matters may sometimes arise by inference where the nature of the reference indicates that the parties clearly meant it; thus, where an action of replevin having been brought in respect of a distress for an annuity, a reference was agreed to of "the cause and all matters in relation to the annuity in question," and the arbitrator awarded 50l. for arrears of the annuity due at the time of distress, and 401. for arrears accruing between that time and the date of the order of reference, he was held not to have exceeded his authority. (Wynne v. Wynne, 3 Scott, N. R. 435.) And a railway company having taken possession of lands of the plaintiff, he brought an action of ejectment, which, with all matters in difference, was referred to an arbitrator, who was to settle the price of compensation; he was held entitled to take into consideration mesne profits down to the time of making his award. (Smalley v. Blackburn Rail. Co., 2 H. & N. 158; 27 L. J., Ex. 65.)

A reference of all actions between A. and B. does not comprehend actions where A. and his wife are parties (Roll. Ab. "Arb." D. 4; Barnardiston v. Fowler,

10 Mod. 205), or in which A. and another are parties CHAP. VI. on one side and B. on the other. (Fisher v. Pimbley, 11 East, 189.) But where there is a reference of disputes between A. and B. on the one side and C. on the other, this is taken distributively, and gives the arbitrator the power to determine differences existing between them, or either of them; and therefore an award of a matter in dispute between A. and C., or even of a matter between A. and B., would be good, such disputes being embraced by this reference. (Baspole's Case, Yelv. 203 ; Carter v. Carter, 1 Vern. 259; Winter v. White, 3 Moore, 674; Adcock v. Wood, 6 Ex. 814; in error, 7 Ex. 468; 21 L. J., Ex. 204.)

to restrain

There is no provision in the Arbitration Act, 1889, Injunction authorizing the court to grant an injunction to restrain arbitration, an arbitration. But the court has jurisdiction to grant an injunction under section 25 (8) of the Judicature Act, 1873 (36 & 37 Vict. c. 66), " in all cases in which it shall appear to the court to be just or convenient." (Beddow v. Beddow, 9 Ch. D. 89.)

None to ceedings as ultra the

restrain pro

agreement to

It is well established, that in arbitrations, a party can protest against the jurisdiction of the arbitrator and proceed with the case subject to the protest, without waiving his right to impeach the proceedings. (Hamlyn refer. v. Bettelley, 6 Q. B. D. 65; 50 L. J., Q. B. 3, per Lord Selborne.) So that, generally an injunction will not be granted to restrain, an arbitrator from acting on the ground of want of jurisdiction (Great Western Rail. Co. v. Waterford and Limerick Rail. Co., 50 L. J., Ch. 513; 17 Ch. D. 493), or to restrain a person from proceeding with an arbitration in a matter beyond the agreement to refer, although such arbitration proceedings may be futile and vexatious. (North London Rail. Co. v. Great Northern Rail. Co., 11 Q. B. D. 30; 52 L. J., Q. B. 380; Wood v. Lillies, 61 L. J., Ch. 158; Farrar v. Cooper, 44 Ch. D. 323; 59 L. J., Ch. 506; London and


Except action pending to impeach sub


or on other equitable grounds.

Blackwall Rail. Co. v. Cross, 31 Ch. D. 354; 55 L. J.,
Ch. 313.)

The court has, however, jurisdiction to interfere by injunction on equitable grounds in proper cases (London and Blackwall Rail. Co. v. Cross, supra), and arbitration proceedings' may be restrained until the trial of an action in which the agreement containing the arbitration clause is itself impeached. (Kitts v. Moore [1895] 1 Q. B. 253; 64 L. J., Q. B. 152; Maunsell v. Midland Great Western Rail Co., 1 H. & M. 133.)

It is said also that the court will interfere where it is satisfied that injury will result to the party complaining if the arbitration is allowed to proceed (Farrar v. Cooper, supra), or where the party proceeding with the arbitration has, by his conduct, made it inequitable that he should be allowed to proceed. (Pickering v. Cape Town Rail. Co., L. R., 1 Eq. 84.)

In a case in which a contract for the sale of barley, provided that all disputes should be referred to arbitration according to the rules of the Liverpool Corn Exchange, and the buyer complained, and the seller admitted, that the barley supplied was not according to sample, an injunction was granted restraining the seller from proceeding to arbitration, as there was really nothing to try. (Sissons v. Oates, 10 Times L. R. 392.) But, where parties had entered into a contract (containing an arbitration clause) for dealing in shares, the court refused an injunction to restrain arbitration proceedings, on the application of one of the parties who alleged that the written contract was not the real agreement, and that the course of dealing under it had been gambling transactions, over which an arbitrator would have no jurisdiction. (McHarg v. Universal Stock Exchange, 11 Times L. R. 409.)




may be

altered by the parties.

THE terms of a submission to arbitration, like any other CHAP. VII. agreement, may be altered, before the award is made, by Submission the consent or further agreement of the parties. But to preserve the right of action on the original submission the alteration should be by an instrument of as high a nature as the submission, for, after the alteration, the instrument effecting the alteration becomes the submission, incorporating all the unaltered terms of the original submission. (Greig v. Talbot, 2 B. & C. 179.) Thus, where a submission was by deed, and a new arbitrator was, by a written memorandum, substituted in the place of one of the original arbitrators, such an appointment was held to constitute a new submission, not under seal, incorporating all the remaining provisions of the former submission. (Re Tunno and Bird, 5 B. & Ad. 488.) So, where there was an endorsed memorandum enlarging the time. (Evans v. Thomson, 5 East, 189; Stephens v. Lowe, 9 Bing. 32.)

The remedy by action on a deed of submission will be lost unless the alteration is also under seal (Brown v. Goodman, 3 T. R. 592, n. (b)), and then the remedy will depend upon whether the alteration is in writing or parol; if parol, the award cannot be enforced under the Arbitration Act, 1889.

A recognizance to perform the award of B. is not forfeited by the non-performance of the award of C., who, by the consent of the parties, is substituted for B. by order of court. (R. v. Bingham, 3 Y. & J. 101.)

The arbitrators have no power to alter the terms of Not by


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