Arbitkation.
452 Sect.
2.
Stay of
Legal Proceedings.
The submission must be in writing and subsisting.
Application must be by a party to the submission or
a stay
(b).
955. The application must be made by a party to the submission some person claiming through or under such a party.
or by
Where
there are several persons against
whom
the proceedings
have been commenced any one of them may apply for a stay and the fact that some of them concur with the party who commenced the proceedings in wishing that the matter should be litigated in Court instead of being referred to arbitration is not of itself sufficient to induce the Court to abstain from ordering a stay (c). It is conceived that where the interest of a party to a submission in the subject-matter in question has devolved on some other person, either by death or bankruptcy or voluntary assignment or in any other way, the latter would be a person " claiming through or under a party to the submission," if he chose so to claim {d).
someone
claiming under a party.
step must ihave been .taken in the
IJfo
proceedings.
What amounts
The matter in question in the legal proceedings which it is sought to stay must be within the scope of the submission (z). The submission must be contained in a written agreement and must be valid and subsisting {a), but the fact that the plaintiff has refused to nominate an arbitrator, and that until he nominates one the reference cannot proceed, would not be any ground for refusing
to
a step in the proceedings.
956. The applicant must have taken no step in the proceedings. A party who makes any application whatsoever to the Court, even though it be merely an application for time, takes a step in the proceedings. Delivery of a defence (e), application to the Court for leave to interrogate (/), or for a stay pending the giving of security for costs {g), or for extension of time for delivery of defence (h), are " steps " in the proceedings. Even attendance on an ordinary summons for directions issued by the plaintiff and permitting an order to be made thereon without objection amounts to taking a step in the action (i). On the other hand, neither a notice requiring a statement of claim {k), nor a request by letter for extension of time for pleading (1), nor the filing of affidavits in answer to an application by the plaintiff
See Lunj v. Pearson (1857), 1 (1879), 14 Oh. D. 200. Denneliy v. Jolly (1874), 22 W. E. 449. Deutsche etc. Oesellschaft v. Briscoe (a) Moffat V. Cornelius (1878), 39 L. T. 102 Bandell v. Thompson (1875), 1 Q. B. D. 748 Oillett v. (1887), 20 Q. B. D. 177 Thornton (1875), L. E. 19 Eq. 599. The agreement between tke parties may by reference incorporate provisionis for arbitration which are set out in some other document {Temperley Steamship Co. v. Smyth & Co., [1905] 2 K. B. 791). (6) Manchester Ship Canal Co. v. S. Pearson & Son, Ltd., [1900] 2 Q. B. 606. (c) Willesford v. Watson (1873), 8 Ch. App. 473. (d) Piercy v. Young (1879), 14 Ch. D. at pp. 202, 203; but see Pennell v. Walker (1856), 18 0. B. 651. (e) West London Dairy Society, Ltd. v. AUott (1881), 44 L. T. 376. (/) ChappellY. North, [1891] 2 Q. B. 252. {g) Adams y. Catley (1892), 66 L. T. 687. (A) Ford's Hotel Co. v. Bartlett, [1896] A. C. 1 see also Smith & Co. v. British Marine Mutual Insurance Association, [1883] W. N. 176. (?) County Theatres and Hotels, Ltd. v. Knowles, [1902] 1 K. B. 480 Bichardson Steven v. Buncle, [1902] W. N. 44. V. Le Maitre, [1903] 2 Oh. 222 (k) Ives and Barker v. Willans, [1894] 2 Ch. 478. (/) Brighton Marine Palace and Pier, Ltd. v. Woodhouse, [1893] 2 Ch. 486. (2)
C. B.
Pierci/ V. {-N.
s.)
639
Young
