Both in this country and in England, it has long been considered, that the parties to a contract are not bound by an agreement, whether in or out of the contract, to refer questions under the same to arbitration; because they cannot oust the courts of their jurisdiction, by any agreement that these claims shall be submitted to arbitration. (u) Such a clause has been held to have no effect, although the matters in controversy have been referred to arbitrators and are still pending at the time of action brought. (v) So, courts of equity have refused to enforce a bill for the specific performance of an agreement to refer to arbitration, or to compel a party to appoint an arbitrator under such an arrangement. (w) In one case where an action was referred to arbitration by consent, the court refused to order the arbitrators to proceed. (x) But, in England, the principles upon which these rules rest, have recently been much questioned; (y) and it * has been held, that an agreement, that the amount, of damages to be recovered in an action at law

(p) Biggs v. Harwell, 16 C. B. 662.

(q) Harris v. Mitchel, 2 Vern. 486.

(r) Neale v. Ledger, 16 East, 61. But see contra, In re Casell. 0 B. & C. 624; Tunno v. Bird. 6 B. & Ad. 488; James v. Attwood, 7 Scott, 841; Ford v. Jones, 3 B. & Ad. 248.

(s) Taylor v. Backhouse, Bail Court, 2 Eng. L. & Eq. 184; Tunno v. Bird, 6 B. & Ad. 488. The acquiescence in such a mode of appointment, will not bind a party, however, unless made with full knowledge of all the facts. Wells v. Cooke, 2 B. & Ald. 218; In re Jamieson, 4 A. & E. 945; In re Greenwood, 9 A. & E. 699; In re Hodson, 7 Dowl. 569. The case of Ford v. Jones, 3 B. & Ad. 248, holding that the appointment of umpire by lot, even by consent of parties, is bad, is probably not law; consensus tollit errorem. See Christman v. Moran, 9 Barr, 487.

(t) In re Beck & Jackson, I C. B. (n. s.) 695. See also Wade v. Dowling, 4 Ellis & B. 44.

(u) Kill v. Hollister, 1 Wilson, 129; Thompson v. Charnock, 8 T. R. 139; Goldstone v. Osborn, 2 Car. & P. 660; Mitchell v. Harris, 2 Yes. 129; Wellington v. Mackintosh, 2 Atk. 569; Nichols v. Chalie, 14 Ves. 266; Robinson v. Georges Ins. Co. 17 Maine, 181; Hill v. More. 40 Maine, 616; Allegre v. Maryland Ins. Co. 6 Harris & J. 408; Gray v. Wilson, 4 Watts, 39; Contee v. Dawson, 2 Bland, 264; Handel v. Chesapeake & Delaware Canal Co. 1 Harring. Del. 233; Horton v. Stanley, 1 Miles, 418; Stone v. Dennis, 3 Porter. 231; Haggart v. Morgan, 4 Sandf. 198, 1 Seld. 422.

(v) Harris c. Reynolds, 7 Q. B. 71.

(w) Wellington v. Mackintosh, 2 Atk. 669; Street v. Rigby, 6 Ves. 815; Milnes v. Gory, 14 id 400; Blundell v. Brettargh, 17 id. 282; Gourlay v. Duke of Somerset. 19 id. 429; Wilks v. Davis, 3 Meriv. 507; Agar v. Macklew, 2 Simons & S. 418; Mexborough v. Bower, 7 Beav. 127; Copper v. Wells, Sazton, 10; Tobey v. County of Bristol, 8 Story, 800. In Halfhed v. Jenning, 2 Dickens, 702, nom. Halfhide v. Fenning, 2 Bro. Ch. 336, a bill was brought by one partner against another and the representative of a deceased partner, for an account and for a production and a discovery. The defendants pleaded, that there was a clause in the articles that no bill or suit should be brought respecting the partnership, until the matter should have been referred to arbitration and the arbitrator should have made his award, and the plea was sustained. This case has generally been considered to have been incorrectly decided; but it appears to us not to be opposed to the authorities above cited, and it is sustained by Lord Chancellor Sugden, in Dimsdale v, Robertson, 2 Jones & La Touche, 68. In this case, a submission had been entered into by the parties, the arbitrators were designated, and their powers and duties fully pointed out. But before they had taken any proceedings, the plaintiff filed his bill, alleging that the arbitrators could not do him justice under the powers conferred upon them. It is provided in England and Ireland by statute, that after the arbitrators are appointed in pursuance of any submission to reference, containing an agreement that such submission shall be made a rule of court, etc., that the submission cannot be revoked by either party without leave of court. The chancellor held, that the bill would not lie in this case, and the whole subject of the power of a court of equity in the premises was considered at length, and the case of Halfhide v. Fenning was considered as correctly decided.

(x) Crawshay v. Collins, 1 Swanst 40.

(y) In Scott v. Avery, 6 H. L. Cas. 811, 36 Eng. L. & Eq. 1, 18, Cresswell, J., said : "The whole of the doctrine as to ousting the jurisdiction of the courts, appears to have been based upon the passage quoted by Parke, B., in 8 Exch. 494, from Co. Litt. 536: 'If a man makes a lease for life, and by deed grants, that if any waste or destruction be done, it shall be redressed by neighbors, and not by suit or plea, notwithstanding, an action of waste shall lie, for the place wasted cannot be recovered without plea.' The case is not to be found in the Year Book, 3 Edw. I1I., referred to, but is in Fitz. Ab. 'Waste,' pl. 5; and the whole of it is given in Co. Litt. 536. It seems, that this decision proceeded on the ground that the neighbors could not redress the wrong done; that it could only be done by plea; therefore, notwithstanding the deed, an action of waste would lie. There is not a word leading to the supposition, that an action would have been maintainable, if the neighbors could have given the appropriate redress; or that it might not have been granted by deed, that, if a dispute arose about waste, neighbors should say whether there had been waste or not. But in subsequent cases, it has been considered to have established, that parties cannot by agreement oust the jurisdiction of the courts of the realm." And in Russell v. Pellegrini, 6 Ellis & B. 1020, 38 Eng. L. & Eq. 99, Lord Campbell, C. J., said: "For some time the courts had a great horror of arbitrations, and doubts were entertained, whether a clause for referring matters in dispute, introduced in an agreement, was not illegal. But I cannot imagine why parties should not be allowed to settle their differences in the manner which they think most convenient. When a cause of action has arisen, the courts are not to be ousted of their jurisdiction; but parties may come to an agreement that there shall be no cause of action, until their differences have been referred to arbitration." shall be first determined by arbitrators, is binding, and that no action will lie till such an arbitration is had. (z) 1

Even if an agreement to refer a case to arbitration is so far invalid that it cannot be pleaded in bar to a suit, an action for damages will lie for the breach. (a)

In England, it is now provided by statute, which probably arose out of the recent adjudications, that whenever there is an agreement in any written instrument, to refer a cause to arbitration, and a suit is brought, the court may grant a rule to stay proceedings at the request of the defendants. (b)

(z) In Scott v. Avery, 8 Exch. 487. 20 Eng. L. & Eq. 327, the policy contained the clause: "That the sum to be paid to any suffering member for any loss or damage, shall, in the first instance, be ascertained and settled by the committee; and the suffering member, if he agrees to accept such sum in full satisfaction of his claim, shall be entitled to demand and sue for the same, as soon as the amount to be paid has been ascertained and settled, and not before, which can only be claimed according to the customary mode of payment in use by the society." The arbitration clause followed immediately after this, which provided, that in case of any difference between the committee and any member relative to the settlement of any loss or damage or any other matter relating to the insurance, arbitrators should be appointed, etc.. and it was also provided, that "the obtaining the decision of such arbitrators on the matters and claims in dispute, is hereby declared to be a condition precedent to the right of any member to maintain any such action or suit." The defendants' plea set forth, that a difference had arisen between the committee and the insured relative to the extent of the loss; that the amount had. therefore, never been ascertained; and that the defendants were, and always had been, ready and willing to have the same decided by arbitrators, but the plaintiff was not ready and willing so to do; and that the loss had not been settled or ascertained by arbitrators. On demurrer, the Court of Exchequer gave judgment for the plaintiff. But in the Exchequer Chamber the judgment was reversed, on the ground, that the provisions mentioned did not oust the courts of their jurisdiction, but merely provided that the amount should be ascertained in a certain way, before the party was at liberty to sue; and that this was in the nature of a condition precedent. Avery v. Scott, 8 Exch. 497, 20 Eng. L. & Eq. 384. This decision was affirmed in the House of Lords, 5H.L Cas. 811, 86 Eng. L. & Eq. 1, Martin, B., Alderson, B., and Crompton, J., dissenting. Lord Chancellor Cramworth stated the law, as follows: "If I covenant with A. not to do a particular act, and it is agreed between us that any question which might arise should be decided by an arbitrator without bringing an action, then a plea to that effect would be no bar to an action; but if we agreed that J. S. was to award the amount of damages to be recoverable at law, then, if such arbitration did not take place, no action could be brought."

(a) Livingstone v. Ralli, 6 Ellis & B. 182, 30 Eng. L. & Eq. 279. This doctrine was doubted in Tattersall v. Groote, 2 B. & P. 131.

(b) 17 & 18 Vict. c. 125, § 11. This statute provides, that "Whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any then existing or future differences between them or any of them shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them shall, nevertheless, commence any action at law or suit in equity against the other party or parties, or any of them, or against any person or persons claiming through or under him or them in respect of the matters so agreed to be referred or any of them, it shall be lawful for the court in which such action or suit is brought, or a judge thereof, on application by the defendants or any of them after appearance and before plea or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to

1 But see Edwards v. Aberayron Ins. Co 1 Q B. D. 563.

In this country, it has been held, that if the insurance company takes possession of the vessel and proceeds to repair her, with the view thus to make good the loss, this amounts to a waiver of the submission to arbitration. (c)