Page:Halsbury Laws of England v1 1907.pdf/662

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Arbitration.

Sect.

The submission may be by mutual bonds or by deed(g), or by writing under hand only, or merely by word of mouth (h) Submission. In order to constitute a submission to arbitration there must be some difference or dispute, either existing or prospective, between Arbitration distinguished the parties, and they must intend that it should be determined in from valuaa quasi- judicial manner (i). Therein lies the distinction between 1.

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The submission may be sealed by one party and signed by the other v. Mayor ofFordiuich (1836), 6 Nev. & M. (k. b.) 594). (A) An oral submission could not be made a rule of Court under any of the statutes which were repealed by the Arbitration Act, 1889 {Ansell v. Evans (1796), 7 Term Eep. 1; Ex parte Glaysher (1864), 3 H. & 0. 442; Newton v. Hetherington (1865), 19 G. B. (n. s.) 342 and see WillcoxY. Storkey (1866), L. E. 1 C. P. 671). The provisions of the Arbitration Act, 1889, are for the most part inapplicable where the submission is oral see s. 27, which defines a submission for the purposes of the Act as a "written agreement." Consequently, where the submission is oral, the arbitration is governed by the common law, under which (1) either party to the submission may at any time before the award is made revoke the authority of the arbitrator and so render the reference abortive (see p. 448, ^jos^) and (2) the award when made cannot be enforced except by action. Moreover, an award made pursuant to an oral submission would fail to satisfy the requirements of the Statute of Erauds in cases where that statute is applicable {Walters v. Morgan (1792), 2 Cox, 369; and compare Rainforth v. Hamer (1855), 25 L. T. (o. s.) 247). At common law an arbitrator had no power to administer an oath by statute 3 & 4 Will. 4, c. 42, s. 41 (now repealed), an arbitrator under a rule of Court was empowered to administer an oath, and by the (g)

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Evidence Act, 1851 (14 & 15 Yict. c. 99), s. 16, every arbitrator or other person having by law or by consent of parties authority to hear, receive and examine evidence is empowered to administer an oath to any witness who may be legally called before him. {i) See Re Carus-WUson and Greene (1886), 18 Q. B. D. 7 (agreement for the valuation of timber as between vendor and purchaser on the sale of an estate) Re Hammond and Waterton (1890), 62 L. T. 808 (agreement for the valuation In the of plants etc. in a market garden as between purchaser and tenant). following cases it was held that the agreement between the parties amounted to a submission to arbitration Jebb v. MKiernan (1829), Mood. & M. 340 (agreement that due discharge of duties by clerk be ascertained by inspection of accounts) Farlces v. Smith (1850), 15 Q. B. 297, 309 (agreement for ascertaining the amount due by outgoing partner on dissolution of partnership) Re Hopper (1867), L. E. 2 Q,. B. 367 (agreement to refer questions between landlord and tenant on termination of tenancy, with power to hear witnesses) Re Evans (1870), 18 W. E. 723 (where the agreement referred to the appointees as " valuers"); Re Hohenzollern Adien-Oesellschaft and The City of London Contract Corporation (1886), 54 L. T. 596 (refusal of engineer to give certificate under agreement for sale and purchase of locomotives) Compare the following cases, in which it was held that the agreement between the parties did not constitute a submission to arbitration Leeds v. Burrows (1810), 12 East, 1 (agreement for valuation between incoming and outgoing tenants) Goodyear v. Simpson (1845), 15 M. & W. 16 (agreement that a clerk should adjust the share of profits between the partners in a stage-coach) Jenkins V. Betham (1855), 15 C. B. 168 (where the agreement was for valuation of ecclesiastical property between incoming and outgoing incumbent) Northampton Gaslight Go. v. Parnell (1855), 15 C. B. 630 (agreement for ascertainment of amount due by sureties for a contractor) Collins v. CoIUms (1858), 26 Beav. 306 (agreement as to purchase price of a brewery) Bos v. Helsham (1866), L. E, 2 Exch. 72 (agreement in conditions of sale as to settlement of disputes) Re Bawdy (1885), 15 Q. B. D. 426 (agreement as to compensation payable by landlord to outgoing tenant, where witnesses were called and there was in fact an arbitration). See also Boyd v. Emmerson (1834), 2 A. & E. 184 (case submitted for counsel's opinion) Lee v.' Hemingway (1834), 3 Nev. &M. (k. b.) 860 (where an agreement to purchase land at a price to be named by a third person was held not to be a submission) Wadsiuorth v. Smith (1871), L. E. 6 Q. B. 332 (a similar decision as to the certificate of an architect as to delay under a building contract)











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