Page:Halsbury Laws of England v1 1907.pdf/666

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444

Arbitration.

Sect,

1.

The Submission. Trustee in

bankruptcy.

revokes the authority of his agent takes effect, and the legal personal representatives of the deceased party are not of a principal

bound

(1).

Where

a party to a submission becomes bankrupt pending the reference, his trustee in bankruptcy is not as a general rule bound by the submission (m) ; but if the submission forms one of the terms of a contract, as, for example, an ordinary building contract, it would seem that the trustee could not make a claim under the contract, and at the same time repudiate the arbitration clause in

he could not both approbate and reprobate the contract

it;

Sub-Sect. Difference or dispute

between parties.

Nature

of

disputes that

may

be

referred.

4.

{n).

Subject-matter.

945. The subject-matter of every reference to arbitration by consent out of Court must be some difference or dispute arising between the parties (o). Any difference or dispute which the parties might, if they were minded so to do, settle between themselves without recourse to arbitration, may be referred to arbitration by their submission. Thus a husband and wife may refer to arbitration the terms on which they shall separate, because they can make a valid agreement between themselves on that matter but they cannot refer to arbitration the question whether or no their marriage was a nullity or should be dissolved, because on those matters they cannot make any agreement between themselves On the same principle a dispute arising from and founded on some illegal or ultra vires transaction cannot be referred to arbitration. In such cases an agreement for the settlement of the dispute made by the parties themselves would not be enforceable, and the award of an arbitrator on such a dispute would likewise be invalid and unenforceable {q). All civil matters may be referred to arbitration, but matters which are purely criminal and give rise to no civil remedy cannot

Illegal

transaction.

Criminal matter.

Toussaint v. Hurtop (1817), 7 Taunt. 571 Cooper v. Johnson (1819), 2 Clarke v. Crofts Aid. 394. See also Tyler v. Jones (1824), 3 B. & C. 144 (1827), 4 Bing. 143; M'Dovgal v. jRohertson (1827), 4 Bing. 435; Be Hare, Milne, and Hasiuell (1839), 8 Dowl. 71. See title Agency, p. 233, ante. Dod v. Herring (1829), (m) Re Smith, Ex parte Edivards (1886), 3 Mor. 179 Marsh v. Wood (1829), 9 B. & 0. 659 and see Pennell v. Walker 3 Sim. 143 Sturges v. Curzon (1851), 7 Exch. 17. See title Bank(1856), 18 C. B. 651 (/)

B.



&











ruptcy AND Insolvency. {n)

See Piercij

p. 451,

v.

Young

(1879), 14 Oh.

D. 200, at pp. 202, 203, and note

it),

'post.

Re Carus-Wilson and (7ree?ze (1886), 18 Q. B. D. 7. Where the submission with respect to future differences, a difference must arise before the authority of the arbitrator can be invoked. See London and North Western Rail. Co. v. J. Billinqton, Ltd., [1899] A. C. 79 and compare Field v. Longden & Sons, [1902] (o)

is

1

H



K

B. 47. ip) Soilleux V. Herlst

(1801), 2 Bos. & P. 444; Bateman v. Ross (1813), Hooper (1860), 1 Sw. & Tr. 602 and see Wilson v. Wilson Hart v. Hart Besa7it v. Wood (1879), 12 Oh. D. 605 (1848), 1 H. L. Cas. 538 Cahill v. Cahill (1883), 8 App. Cas. 420. (1881), 18 Ch. D. 670 (q) Maunsell v. Midland Great Western of Ireland Rail. Co. (1863), 1 H. & M. -130; Aulert v. Maze (1801), 2 Bos. & P. 371 Steers v. Lashleij (1794), 6 Term Eep. 61. 1

Dowl. 235



Hooper

v.