Page:Halsbury Laws of England v1 1907.pdf/249

 —— Part V.

Part V.

Suspension of Right of Action.

— Suspension

Sect.

1.

27

of Right of Action,

By Agreement

to refer to

Arhitration.

Sect.

1.

Agreement

36. A simple agreement to refer a dispute to arbitration, as distinct to refer to from one which makes an arbitrator's award a condition precedent Arbitration. to an action, could not at common law be pleaded as a defence, and did not bar a plaintiff from bringing his action, if he chose to Agreement to refer. The Legislature has, however, disregard the agreement {m). interfered (») in order to give effect to such agreements and now an action brought in defiance of such an agreement will be stayed

unless there exists sufficient reason to the contrary

Sect.

Where

By

2,

(o).

Receipt of Negotiable Instrument.

is taken by a creditor, not in but merely on account of a simple contract debt, it operates as a conditional payment thereof. His right of action is suspended during the currency of the instrument, and the instrument affords a good defence to an action brought before it matures (q). If the instrument is honoured in its entirety or in part, the debt is paid and satisfied wholly or pro tanto (?•). If, however, it is dishonoured on maturity or only partly paid, the debt or the balance may then be recovered by action (s).

37.

a negotiable instrument

full satisfaction (p),

Sect.

3.

Actions in respect of Felonious Torts.

38. Although it has been said that the " suspension " of a cause of is a thing nearly unknown to our law(0, has long (a) been recognised that in theory, where an injury amounts to an infringement of the civil rights of an individual, and at the same time to a felony, the right of redress by action (or by proof in bankruptcy) is suspended until the party inflicting the injury has been prosecuted, and public justice thus vindicated (?>). action

Thompson v. Charnock (1799), 8 Term Eep. 139. Eirstby the Comuion Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 11, and now by the Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 4. (o) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 4. See titles Arbitration and Practice and Procedure. {p) Whether it is so taken is a question of fact as to the parties' intention. See Be Romer and Haslam, [1893] 2 Q. B. 286. Be Bomer and Haslam, supra; Felix Hadley & Co. v. Hadley, [1898] 2 Ch. ^^{q) (jh) (?/)

Ihid. ; Thome v. Smith (1851), 10 C. B. 659. Cases cited above; and Gunn v. Bolchow, Vaughan& Co. (1875), 10 Ch. App. 491. See generally title Bills of Exchange etc. {t) Ex parte Bali, In re Shepherd (1879), 10 Ch. D. 667, per Lord Bramwell. (a) " For three hundred years it has been said in various ways by judges, many of the greatest eminence, without intimating a doubt, except in one instance, that there is some impediment to the maintenance of an action " to recover an indebtedness caused by the felonious act of the defendant {iUd,, per Lord (r) (s)

Bramwell, {h) Ihid.

(1872), L.

561



H. &



Osborn 146

C.

at p. 671).

Wells v. Abrahams v. FranUin (1885), 17 Q. B. D. 93 ; 7 Q. B. 554; Midland Insurance Co. v. Smith (1881), 6 Q. B. D. v. Gillett (1873), L. E. 8 Ex. 88; Wellock v. Constantine (1863), 2

Appleby

li.



White

Effect of

acceptance.

v. Spettiyue (1845),

13

M. & W. 603 and

cases cited in the

BfEect of