Page:Halsbury Laws of England v1 1907.pdf/667

 — Part

I.

—

.



References by Consent out of Court.

445

Sect. i. where, however, some act has been done which be referred (r) The renders the person who did it hable to a criminal prosecution, and also to a civil action for damages at the suit of the injured party. Submission, the adjustment of the reparation to be made to the injured party may be referred to arbitration (s) An agreement which purports to oust the jurisdiction of the Ousting the Court is on grounds of public policy illegal and void (t), but an

_

agreement that no right award has been made

and

of action shall arise unless

until

j^^^^^g^

an

court

is valid and enforceable. In policies of insurance, building agreements, and grain and other produce eontracts it is commonl}^ stipulated that in case of any dispute arising thereunder, such dispute shall be referred to arbitration, and that the obtaining of an award shall be a condition precedent to the right to sue («)•

Sub-Sect.

946. to hear

A

5.

Effect.

submission authorises the arbitrator thereby appointed

and determine the matter in dispute between the parties

but it does not oust the jurisdiction of the Court. Any party to a submission may, therefore, before the award is made commence legal proceedings in respect of any claim or cause of action included in the submission {y). At common law the Court had no jurisdiction to stay such proceedings but w^here the submission is contained in a written agreement, the Court has jurisdiction under the Arbitration Act, 1889, to stay proceedings commenced in respect of any matter agreed to be referred to arbitration (z). Where the submission is contained in a written agreement it has the same effect as if it had been made an order of Court (a).

Edqcombe v. Rodd (1804), 5 East, 294 R. v. Hardey (1850), 14 Q. B. 529 Bla'kemore (1850), 14 Q. B. 544; and see R. v. Bardell (1836), 5 A. & E. 619, and R. v. Shilliheer (1836), 5 Dowl. 238. Keir v. Leeman (1844), 6 Q. B. (s) Baktr V. Toiunshend (1817), 7 Taunt. 422 308 and see also Beelnj v. Wingfield (1809), 11 East, 46. 643 Lee v. Page (1861)j_30 L. J. (CH.) {t) Horton v. Smjer (1859), 4 H. & 857 Edwards v. Aherayron Mutual Ship Insurance Society (1875), 1 Q. B. D. 563 and see Rijoley v. Great Northern Rail Co. (1875), 31 L. T. 869. (u) Scott Y. Avery {lSo6), 5 H. L. Gas. 811; Trediven v. Holman (1862), 1 H. & C. 72 Braunstein v. Accidental Death Insurance Co. (1861), 1 B. & S. 782 Elliott V. Royal Exchange Assurance Co. (1867), L. E. 2 Exch. 237 Viney v. Bignold Trainor v. Phoiuix Eire Assurance Co. (1892), 65 L. T. (1887), 20 Q. B. D. 172 825 Scott v. Mercantile Accident and Guarantee Insurance Co. (1892), 66 L. T. 811; Caledonian Insurance Co. v. Gilmour, [1893] A. C. 85; Hamlyn & Co. v. Spurrier v. La Cloche, [1902] A. C. 446; TalisTier Distillery, [1894] A. C. 202 Sharpington v. Fidham Guardians, [1904] 2 Oh. 449. Compare Collins v. Locke (1879), 4 App. Gas. 674, and Daiuson v. Fitzgerald (1876), 1 Ex. D. 257, in which cases it was held that an action was maintainable although, there had been no reference to arbitration, and Roper v. Lendon (1859), 1 E. & E. 825. (r)

R.



V.





K



















See also

title Actio^vT, p. 22, ante.

Vynior's Case (1610), 8 Co. Eep. 81 b. and see Wood v. Copper Miners Co. (y) Harris v. Reynolds (1845), 7 Q. B. 71 Coohe v. Coohe (1867), L. E. 4 Eq. 77. Where the obtaining (1856), 17 C. B. 561 of an award is a condition precedent to any right of action, neither party can sue the other until after the arbitration has been held and the award has been made, because until that happens he has no cause of action. See the cases cited, note (m), supra. See p. 451, p>ost. (2) Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 4. {a) Hid., s. 1. This provision of the Act does not appear to have much {x)





Right to com-

mence

{x),

legal '"^^*