QJnrnpU Cam irlynnl ICibtaty 
 
KF 9085.C67"'" ""'™"">' ''"""^ 
 
 mmmimm,m'''*''^^'°" 3"" «he taw / 
 
 3 1924 020 139 147 
 
 
 DATE DUE 
 
 
 "HT^.^ 
 
 
 
 .^/gl^ 
 
 9^ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 EAYLORD 
 
 
 
 PRIhJTED IN U.SA 
 
'-y^'f 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020139147 
 
COMMERCIAL ARBITRATION 
 AND THE LAW 
 
 BY 
 
 JULIUS HENRY COHEN 
 
 AUTHOR 01 "LAW AND OXIIER IN DIDnSTRX" 
 
 "IBS law: business ok FROrESSIOH?" 
 *A LBAGCZ TO ENTOSCE IHDUSTKIAL PSACi" 
 
 D. APPLETON AND COMPANY 
 
 NEW YORK LONDON 
 
 1918 
 
Copyright, 1918, by 
 D. APPLETON AND COMPANY 
 
 Printed in the United States of America 
 
/■^;^.^-'■^//>• 
 
 DEDICATED 
 TO 
 
 CHARLES It ^BER^STHEIMER 
 
 WHO, AS CHAIRMAN OF THE COMMITTEE ON COMMERCIAL 
 ARBITRATION OF THE CHAMBER OF COMMERCE 
 
 OF THE STATE OF NEW YORK, 
 
 HAS DONE MORE THAN ANY OTHER ONE MAN TO 
 
 ENCOURAGE AND DEVELOP THE PRACTICAL 
 
 USE OF COMMERCIAL ARBITRATION 
 
 IN THE UNITED STATES 
 
INTRODUCTION 
 
 I 
 
 The Chamber of Commerce of the State of New York 
 is, I believe, the oldest commercial or trade body in the 
 United States. Its charter runs back to the days of George 
 the Third (April 5th, 1768). The act confirming it was 
 one of the first pieces of legislation passed by the State 
 of New York.^ Yet almost as old as the Chamber itself is 
 its interest in the arbitration of commercial disputes. In 
 the records of the Chamber are to be found interesting 
 cases disposed of by arbitration during the Revolutionary 
 Period. Just prior to Comwallis' surrender and at a 
 time when the City of New York was still under martial 
 law, Andrew Elliot, "Superintendent-General," writes 
 (October 2nd, 1781) : "As I was and still am of opinion 
 that Mercantile disputes cannot be adjusted in a more 
 proper or more equitable way than by a reference to 
 respectable Merchants, it gave me great satisfaction when 
 the method was so generally agreed to, and I flattered 
 myself that notwithstanding the trouble it gave individuals, 
 that it would at least continue as long as I had any con- 
 cern in the Superintendency. I shall be much concerned 
 if these, my expectations, should be disappointed." He 
 then makes the following painful reference to the then 
 existing condition: "The present Juncture of Affairs does 
 not seem favorable for any new plans to be adopted. It 
 has long been proposed (I hope Events are not distant that 
 may admit of a Trial) to revive such part of the civil Au- 
 ' April 13th, 1784, Chap. XXX, Laws of 1784. 
 
viii INTRODUCTION 
 
 thority by which justice may be administered to the Com- 
 munity. Individuals will then be freed from the Burthen 
 of adjusting Mercantile disputes, and I shall be relieved 
 from a most fatiguing anxious situation, but I beg you will 
 assure the Chamber of Commerce that in all situations I 
 shall ever retain the highest sense of Assistance and Sup- 
 port they have afforded me."" From 1874 down to 1895 
 the Chamber housed the Court of Commerce or Court of 
 Arbitration established by the Legislature of the State 
 in April, 1874. Over this Court the late Judge Enoch L. 
 Pancher presided. Herein partnership cases, claims for 
 salaries, cases arising on bills of lading, on shipments of 
 goods from abroad, on marine insurance, etc., etc., were 
 submitted to the arbitrator and satisfactorily disposed of. 
 In 1911 a special Committee on Commercial Arbitration' 
 recommended the plan for commercial arbitration which 
 has since been in vogue. This plan is based upon the 
 provisions of the Code of Civil Procedure of the State of 
 New York permitting voluntary submissions to arbitration 
 and provided for the entry of a judgment upon the award 
 and the enforcement of the judgment as a judgment of a 
 court of record. This system, to my personal knowledge, 
 has worked to the eminent satisfaction of all concerned. 
 My experience is in accord with that of Sir Albert K. 
 RoUit, Ex-President of the London Chamber of Commerce 
 and Chairman of its Arbitration Committee, who said on 
 Feb. 19, 1909: 
 
 "Arbitration is indeed the natural right of disputants 
 to choose their own tribunal, and is the practical art of 
 vindicating and reconciling disputants, and doing so at a 
 minimum of expenditure, time and trouble. 
 
 "Except for arbitration there would be many eases in 
 which justice would be denied. 
 
 •Eecords of Chamber of Commerce, October, 1781. 
 •James TaJcott, Henry Hentz, Frank A. Ferris, Alexander E. Orr, 
 Charles L. Bemheimer, Chairman. 
 
INTRODUCTION ix 
 
 "Even rough and ready trade arbitrations are necessary 
 in modem commercial life. 
 
 "There is no rivalry in arbitration with the law or the 
 administration of the law." 
 
 But business men engaged upon this side of the ocean 
 in administering arbitration committees have found it dif- 
 ficult to understand why, as matter of law, existing dis- 
 putes could be submitted to arbitration, yet they could 
 not in advance agree, as part of the consideration for their 
 entering into a contract, that, in the event of controversy 
 over the contract, the dispute should be referred to their 
 own Exchange or Board of Trade or Chamber of Com- 
 merce or to arbitrators selected by them. That judges as 
 well as laymen had the same difflculty appeared when, in 
 1915, Judge Charles M. Hough, one of our ablest Federal 
 Judges, in TJ. S. Asphalt Refining Co. v. Trimdad Lake 
 Petroleum Co.,* stated that he could find no basis in reason 
 for the existing law ; yet, upon old precedent, he was con- 
 strained to hold that a clause in a contract by which the 
 parties solemnly agreed to submit their differences, if any 
 arose, to arbitration, was revocable at the pleasure of 
 either. At about the time of the rendition of this decision, 
 our Committee on Commercial Arbitration was considering 
 the wisdom of applying to the Legislature for relief from 
 what we regarded and still regard as an anomalous condi- 
 tion in the law. In the summer of 1915 we asked the Con- 
 stitutional Convention then sitting in Albany, to insert in 
 the Judiciary Article the following: "The legislature is 
 authorized to make provision for submission of contro- 
 versies, existing or non-existing, to arbitration, and ta 
 validate agreements made by the parties to that end." We 
 were told by the Chairman of the Judiciary Committee of 
 the Constitutional Convention that no such authority was 
 necessary. On the other hand one of the leading legal 
 authorities in this country on August 19th, 1915, wrote us : 
 
 *222Fed. Eep. 1006. 
 
X INTRODUCTION 
 
 "But I cannot say that I am yet certain that the long 
 established reluctance of the courts to surrender jurisdic- 
 tion, should be set aside." 
 
 The decision of Judge Hough came to the attention of 
 the London Court of Arbitration at about the same time. 
 Shortly after its rendition, the London Court called our 
 attention to the fact that, if the judgment of Judge Hough 
 were not reversed on appeal or the law changed, "a Citizen 
 of the United States of America would be in the position 
 to enforce an Award in his favour wherever delivered 
 against a British subject, whether resident in England or 
 any British Colony or Dependency . . . whereas, should 
 the Award go against him, he could ignore it." That such 
 a condition could exist seemed inexplicable to the London 
 merchants (and to American merchants as well), who re- 
 ported that "Recourse to arbitration in this Country 
 (England), is very general, and it is a gratifying tribute 
 to the efficiency with which justice is administered in the 
 London Court of Arbitration, that Foreign Merchants 
 readily assent to the insertion in their contracts of a clause 
 providing for the reference of differences thereto." 
 
 Mr. Justice Vernon M. Davis, in administering the oath 
 to our committee on the 1st of June, 1911, had said: 
 ". . . it is the policy of the law to encourage arbitration." 
 And another well-known jurist in our community, Ex- 
 Justice Francis M. Scott, had said that there was no dif- 
 ference between "the promise to forbear to prosecute a 
 particular claim upon which one has a right to sue ' ' and a 
 promise to forbear to pursue their remedy by action in 
 the courts of the State. "The cause of action to enforce 
 the judgment was' the plaintiffs'. They could do with it 
 as they saw fit to the extent of releasing it wholly on the 
 one hand, or of prosecuting every legal method for its 
 collection on the other. Whatever course they saw fit to 
 adopt VMS no matter of public concern, and affects no ques- 
 
INTRODUCTION xl 
 
 tion of public policy, and if they saw fit to make an agree- 
 ment, fftherwise valid, that they would forbear to pursue 
 their remedy hy action in the courts of this state, there is 
 no pubUc policy which renders that agreement invalid."^ 
 
 "We found ourselves quite in agreement with our friends 
 in London, who wrote us that ' ' The argument that a party 
 to a contract between nationals of different states may not 
 substitute an independent Arbitral Tribunal for a Court 
 of Law, should surely be regarded in the twentieth cen- 
 tury as obsolete." 
 
 We were convinced that something should be done to 
 harmonize the law of the United States with the law of 
 England. Our Committee had had long and earnest coun- 
 sel with its legal adviser upon this subject, and gave con- 
 sideration to a plan for securing relief from the Legis- 
 lature of the State of New York. In 1916, however, Mr. 
 Clarence M. Lewis, a member of the New York Bar, in 
 the case of Spiritusfabriek Astra, of Amsterdam, EoUand 
 V. Sugar Products Company, took issue, on behalf of his 
 client, with this hoary doctrine in the law, and with a 
 view to securing its judicial reconsideration appealed to 
 the New York Chamber of Commerce to intervene as a 
 friend of the Court and to present the business man's 
 point of view. His appeal to the Chamber did not go 
 unanswered. Mr. Julius Henry Cohen was requested to 
 represent the Chamber in the case referred to. I will leave 
 Mr. Cohen to tell the rest of the story. Suffice it to say 
 that the results of his research appealed so strongly to 
 our Committee that we determined not to wait for the 
 submission of a brief to be used only in Mr. Lewis' case, 
 but to print the results for the use of the Bar, the judiciary, 
 and the laity throughout the country and elsewhere. "We 
 were convinced that a careful presentation of the history 
 of the doctrine, its original error, its repetition in ignor- 
 ance, and its final overthrow by the English courts, mpst 
 
 « GitUr V. Russian Co., 124 App. Div., 273, at p. 276. Italiea ours. 
 
xii INTRODUCTION 
 
 result ultimately in the rectification of the American error 
 by our own courts. If, as we believe, the policy of the law 
 is favorable to commercial arbitration, the courts will 
 surely not hesitate to set the law right upon discovery of 
 their error. 
 
 Charles L. Beenheimek, 
 Chairman, Committee on Arbitration, Chamber of Com- 
 merce of the State of New York. 
 
 New York. 
 
 II 
 
 In one of the wings of the Metropolitan Museum of Art 
 they have re-erected "Pemeb's Tomb." Forty-five hun- 
 dred years ago an Egyptian of importance, by the name 
 of Pemeb, a very confidential adviser to the king at Mem- 
 phis, built this wonderful mausoleum. To bring it to New 
 York required that it be dug from under the great mound 
 of debris heaped upon it. The various blocks had to be 
 taken down, carefully separated, and shipped to this coun- 
 try. Then they had to be put together again and the en- 
 tire tomb re-erected as it now stands in the large gaUery 
 at the northern end of the Fifth Avenue hall. In describ- 
 ing the details of the work of taking down the struc- 
 ture, Albert M. Lythgoe, who had charge of the work, re- 
 fers to the rare opportunity which he thus had of seeing 
 in reverse order the various details of the erection of 
 the tomb. Thus, for example, he found upon many of 
 the backs of the blocks original "mason's marks" writ- 
 ten in red ochre, while a great patch of the paint itself 
 he found in the sand just north of the tomb, where it 
 had been thrown. On the backs of the walls he found 
 places where the mortar still bore "the hardened im- 
 prints of the fingers of the workmen as distinctly as on 
 
INTRODUCTION xiu 
 
 the day when the blocks had been placed in position," 
 while under the remains of the plaster and mud flooring 
 of ihe offering chamber there were still to be found "the 
 scattered shells of a number of nuts which some work- 
 man had had for his luncheon on the day he was laying 
 the floor." 
 
 About a year ago, when I stood inside the tomb and 
 read this paragraph by Lythgoe, I found myself envy- 
 ing the opportunities that he and his associates had had. 
 The joy of going over this work "in reverse order" through 
 "all the various details of its erection," at the same time 
 feeling human touch with men who, 4500 years before 
 had put the building together, was a rare human experi- 
 ence. 
 
 The memory of this visit to Pemeb's tomb came back 
 to me when I began the task of digging under the mound 
 of debris covering the ancient doctrine I was charged 
 by the New York Chamber of Commerce to examine and 
 study. As the process of taking down the structurt. of 
 this ancient tomb, brick by brick, went on, I became more 
 and more interested in discovering upon the backs of the 
 walls "the hardened imprints of the fingers of the work- 
 men" and "the scattered shells" of the nuts which they 
 ate for luncheon. For example, the discovery that the 
 notorious Baron Jeffreys had enunciated a doctrine more 
 equitably sound than that firmly imbedded by my Lord 
 Coke in the brick and mortar of the English Common 
 Law made me nearly drop my pick and shout. In brief, 
 the process of reviewing in "reverse order" the ways of 
 thinking of Coke and Jeffreys and later Eldon and Bram- 
 well and Cranworth and Campbell gave me a time of en- 
 jo3Tnent comparable somewhat with the pleasures of the 
 Museum staff when tearing down and reconstructing Per- 
 neb'a tomb. I think, too, I found the shells of some of 
 the nuts. 
 
 When I first began the work, I had no other purpose 
 
xiv INTRODUCTION 
 
 than to present adequately to the Court all the phases of 
 public policy bearing upon the question. To do this, it 
 seemed to me appropriate to ascertain the true reason for 
 the development of the rule. This, obviously, required the 
 application of the historical method. I confess that I was 
 surprised to discover what I believe now to be the fact, 
 that grave judicial error had been committed and re- 
 peated for over three centuries solely through failure to 
 secure and present a complete historical analysis of the 
 evolution of the law upon this subject. 
 
 I agree with my friend, Everett V. Abbot • that judicial 
 errors should be corrected by the judiciary and that this 
 method "is obviously the wisest, the most effective and the 
 most just." As he says: "The mere fact that there has 
 been error signifies that there has been injustice and the 
 courts are better fitted to cope with injustice than any 
 other department of an organized state. ' ' I agree with him 
 that the courts "should always be ready, therefore, to 
 apply to their own errors and injustices the judicial method 
 of correction" and that a frank acknowledgment of this 
 kind "and an open-minded reception of lawyer-like and 
 respectful arguments tending to point out errors" will, 
 instead of undermining their authority or diminishing the 
 respect in which they are held, on the contrary "the more 
 tolerant and approachable the Court is, the greater will 
 be the popular confidence in its decisions." I think he is 
 perfectly sound in saying that "the strongest bulwark 
 which the courts can erect against the recall and other 
 insidious attacks upon our judicial system will be found in 
 the recognized practice by the courts themselves of the 
 principle that judicial errors are to be judicially cor- 
 rected. ' ' 
 
 My experience in this particular piece of work also 
 confirms my friend in another statement made by him in 
 
 'Yale Law Jowmal, Vol. 26, No. 2, p. 104 (Dec., 1916). 
 
INTRODUCTION xv 
 
 another place. '' ' ' The existence of an erroneous doctrine 
 in the law means that some lawyer has been inadequate to 
 his duty. Such a doctrine cannot come into being ex- 
 cept through a misunderstanding of principles and an ac- 
 ceptance of insufficient reasons. At some point in our 
 legal history, therefore, attorneys have not been competent 
 to protect their clients, or judges have rendered judgment 
 upon insufficient knowledge." I should modify his state- 
 ment only in this respect, that attorneys have been com- 
 petent enough, but did not apply sufficient diligence to 
 their work. It is a fine call to the American Bar that Ab- 
 bot makes: "We, who inherit a detailed body of juris- 
 prudence, are not adequate to our duty, either as practicing 
 attorneys or as members of the judiciary, if we fail to 
 correct these errors." 
 
 As I have pointed out later on, the modem courts are 
 increasingly ready to correct judicial error if the Bar but 
 make adequate presentation of the error. 
 
 Of course, a study like the one embraced in the suc- 
 ceeding chapters cannot be made within the limit and 
 scope of the ordinary brief. Indeed, the form of the or- 
 dinary brief does not permit of such a presentation. More- 
 over, appellate courts are not receptive to treatises or legal 
 essays garbed in the form of a lawyer's "Brief." Perhaps 
 it is right that this should be so. The careful, painstaking 
 analysis of legal authority and legal principle must be 
 done when the telephone bell is not ringing and the calen- 
 dar is not too crowded. There must be time for reflec- 
 tion and criticism. Quite apart from these considerations, 
 mere argument in one case or in one State would hardly 
 serve to correct the existing viewpoint of both Bench and 
 Bar. Furthermore, whatever information is secured for 
 use in the courts of New York State should be made 
 available to the lawyers of the entire country. It is these 
 considerations that led to the publication of this work. 
 
 '"Justice and the Modem Law," p. 79. 
 
xvi INTRODUCTION 
 
 Busy lawyers, alas, rarely get time from active practice 
 for such an interesting study as this one has proved to be 
 the ragged edges in this work are due to the interruptions 
 that come inevitably when one is engaged in the active 
 daily practice of the law. 
 
 I should be most ungrateful if I left the introduction 
 without making simple acknowledgment to those who have 
 helped me. First of all, to Mr. Lewis, whose case fur- 
 nished the occasion for the investigation, and who not only 
 graciously turned over to me all the material he had gath- 
 ered together, but who has been of invaluable assistance in 
 cheeking up and running down modern authorities as well 
 as in correcting thg proof. The librarians at the Economics 
 Division of the New York Public Library and at the As- 
 sociation of the Bar, especially Miss Adelaide R. Hasse, Mr. 
 Franklin 0. Poole and Mr. A. S. McDaniel, have been of 
 great help. My former assistant, Mr. Frank deR. Storey, 
 was of invaluable aid to me in the searching through of 
 old Year Books and the still older authorities, with his rare 
 linguistic ability translating from the hard "common law 
 French" into English, and helping me in many other ways. 
 I regret exceedingly that he was called to other work before 
 I could complete the manuscript. I am indebted, too, to 
 Miss Winifred Notman,^ whose splendid legal attaimnents 
 enabled her to save me from error in the manuscript, al- 
 though she was unable, because of her acceptance of a call 
 to war service in France, to complete her work. With- 
 out the assistance of my secretary, Miss Anna B. Deringer, 
 it would have been impossible for me to have gotten out 
 the book within the limitations of time. 
 
 Of course, it would have been impracticable for a prac- 
 ticing lawyer to have done this work if men of scholarly 
 attainment, like Maitland and Pollock and Ames and Pound 
 and the others to whom reference is freely made through- 
 out the book, had not put their valuable contributions at 
 the disposal of all legal students. In this connection, in 
 ' (Now Mrs. David Chandler Price.) 
 
INTRODUCTION xvii 
 
 view of the greater place women are coming to occupy 
 in the affairs of the world, I like especially to mention 
 the splendid contribution of Margaret Klingelsmith in her 
 translation of Statham's "Abridgement" — a most scholarly 
 contribution to the science of the law. 
 
 Juuus Henbt Cohen. 
 
CONTENTS 
 
 PART I 
 Public Policy 
 
 CHAPTBB PAGE 
 
 I. Business Men's Tribunals and the Law ... 1 
 
 II. The Phevention op Unnecessary Litigation 10 
 
 III. Public Policy and Commekcial Arbitration . . 24 
 
 IV. The Judicial Rule of Stare Decisis .... 39 
 
 PART II 
 
 The Doctrine of Revocability — A Judicial Error 53 
 
 V. Analysis of the English Authorities .... 53 
 VI. The Slow Emergence of Legal Concepts of 
 
 Contractual Obligations 60 
 
 VII. The Conflict between the Law Merchant and 
 
 the Common Law 71 
 
 VIII. Coke's Dictum in Vynior's Case 84 
 
 IX. The Earlier Precedents Contra to Coke's Dic- 
 tum 103 
 
 X. The Effect of Coke's Dictum 128 
 
 XI. Wherein Lord Coke's Dictum is not Followed 142 
 
 XII. The Passing of Fines and Penalties .... 148 
 
 XIII. "Ousting the Courts of Jurisdiction" ... 153 
 
 XIV. The Error is Corrected: Scott v. Avery, 1855 170 
 XV. The True Interpretation of Scott v. Avery 
 
 (1855-94) 180 
 
 XVI. The Judicial Correction of a Judicial Error 
 
 (England, 1853-1916) 205 
 
 XVII. How English Error Worked into American Law 226 
 
 XVIII. The Development in the Federal (U. S.) Courts 242 
 
 xix 
 
XX CONTENTS 
 
 PART III 
 
 The Soundbe Docteine 
 
 CHAPTER PAGE 
 
 XIX. The Coubt's Jealousy or its own Jxjeisdiction 253 
 XX. The Ordinary Understanding of an Arbitra- 
 tion Clause 265 
 
 XXI. Conclusion 279 
 
 APPENDIX 
 
 A. EULES FOR THE PREVENTION OF UNNECESSARY LITI- 
 
 GATION (Report of Joint Committee of Cham- 
 ber OF Commerce of the State op New York 
 
 AND OF THE NeW YoEK StATE BaH ASSOCIATION) 283 
 
 B. Rules and Regulations of the Chamber op Com- 
 
 merce OF THE State of New York for Sub- 
 missions TO Arbitration 288 
 
 C. Illinois Law of Arbitration 294 
 
 D. Form of Arbitration Agreement Adopted by 
 
 THE Public Service Commission for the First 
 District of the State of New York with the 
 Interboeough Rapid Transit Company op 
 New York 298 
 
 E. Aebitration Provisions op United States Ship- 
 
 ping Board Charter-Bare Boat Form . . 303 
 
 F. Rules op the Municipal Court op Chicago Gov- 
 
 erning Arbitration 301 
 
 G. Form op Submission to Arbitration used in the 
 
 Municipal Court op Chicago 302 
 
 H.' List of Organizations in Chicago agreeing to 
 
 Promote Trade Arbitrations 303 
 
 I. Rules for Arbitration now in Operation in 
 
 the Municipal Court of the City op New 
 
 York 306 
 
COMMERCIAL ARBITRATION 
 AND THE LAW 
 
 PAET ONE— PUBLIC POLICY 
 
 CHAPTER I 
 
 BUSINESS MEN'S TEIBUNALS AND THE LAW 
 
 In two trenchant articles written by a former judge, 
 now counsel to the Public Service Commission for the First 
 District of New York State,^ based upon a comparative 
 study of the disposition of questions of fact by quasi- judi- 
 cial bodies like the Public Service Commission and the 
 disposition of such questions by existing judicial methods 
 in the courts, the writer says that " "Business men have no 
 great quarrel, as a rule, with the legal concepts which 
 the common law, as modified by statute, would apply to 
 the arbitrament of their business dealings ; they wish, and 
 need, certainty and equality as the underlying bases of 
 their activities; they wish, and need, to know that when 
 they do a certain thing in a certain way or enter into 
 an agreement in a certain form, their rights and liabilities 
 will be so-and-so, definable and ascertainable in advance." 
 "But," on the other hand, says Judge Bansom, "for the 
 court as a mechanism for promptly, acceptably applying 
 that acceptable standard, the business man has today an 
 
 *"The Organization of the Courts for Better Administration of 
 Justice," by William L. Bansom, 2 "Cornell Law Quarterly," pp. 
 186 and 261. 
 
 'Pp. 264-265. 
 
2 COMMERCIAL ARBITRATION 
 
 instinctive distrust and dislike ; legal procedure is too com- 
 plicated, technical, indirect, dilatory, wasteful of his time 
 and everyone else's, to warrant him in taking any avoid- 
 able chances with the judicial mill." ' What business men 
 want, says the author, "is a speedy determination of 
 the facts, and then a prompt determination of their rights 
 under the facts as found and the applicable rules of law, 
 as commonly observed in the community for the conduct 
 of similar business dealings. " * An English writer, review- 
 ing the development of English legal institutions,* says: 
 "Owing to the exigencies of trade, merchants, of all men, 
 require that the law should be known with precision. ' ' ° 
 ' ' For eight hundred years merchants have cried for speedy 
 justice. Mercantile men must be about their business, for 
 trade will not wait. Once, the merchant was here today 
 and gone tomorrow ; now, he will sooner cut his loss than 
 have his case hung up indefinitely; if he cannot get king's 
 justice he will go to arbitration."^ Ex-Senator Root, in 
 an address entitled, "The Layman's Criticism of the 
 Lawyer," made before the American Bar Association at 
 its meeting in Washington in 1914, said: 
 
 "American procedure ought to follow as closely as pos- 
 sible the methods of thought and action of American farm- 
 ers and business men and workmen. The law is made 
 not for lawyers but for their clients, and it ought to be 
 administered, so far as possible, along the lines of laymen's 
 understanding and mental processes. The best practice 
 comes the nearest to what happens when two men agree 
 to take a neighbor's decision in a dispute, and go to him 
 and tell their stories and accept his judgment. Of course 
 all practice cannot be as simple as that; but that is the 
 standard to which we ought to try to conform rather than 
 
 *" Cornell Law Quarterly," p. 265. 
 
 Ubid., p. 273. 
 
 •"A History of English Iiegal Institutions," by A. T. Carter. 
 
 'nid., p. 265. 
 
 '/6td., p. 269. 
 
BUSINESS MEN'S TRIBUNALS 3 
 
 the methods of an acute, subtle, logical, finely discrimina- 
 ting, highly trained mind. It is that sort of thing which 
 merchants seek when they get up committees of arbitration 
 to decide their controversies without the intervention of 
 lawyers. They are trying to get their questions settled 
 in accordance with their instincts and habits of thought. 
 That is the way in which all the great international arbi- 
 trations are conducted. Fortunately for them, the judicial 
 procedures of the nations differ so widely that there can- 
 not be any particular rules of practice in an international 
 case. Accordingly each country tells its story in print 
 and then both go in and tell the arbitrators about it. Many 
 of these cases are exceedingly complicated and difficult but 
 they require no complicated and difficult procedure."* 
 "For contracts and injuries done concerning the fair or 
 market," says Coke,' "there shall be as speedy justice done 
 for the advancement of trade and traffic as the dust can 
 fall from the foot, the proceedings there being 'de hora 
 ■m horwm.' " "The Carta Mercatoria of the reign of Ed- 
 ward I granted as a favour to foreign merchants that 
 'every contract between said merchants and any persons, 
 whensoever they may come, touching any kind of mer- 
 chandise, shall be firm and stable, so that neither of the said 
 merchants shall be able to retract or resile from the said 
 contract when once the God's penny shall have been given 
 and received between the parties to the contract'";^" 
 and similar words were found in the Custom of Avignon.^^ 
 In this charter we find the words: "Hem, volumus et con- 
 cediwMS, quod aliquis cerhts homo fidelis et discretjus 
 London, residens assignetur Justicia/rius Mercatoribus 
 memoratis, coram quo valeant specialiter pladtare et dehita 
 
 •Eeport of American Bar Association, Vol. 39, p. 397. 
 
 '4 Institutes, 272, quoted in Smith's "Mercantile Law," Vol. I, 
 Introduction, Ixxii. 
 
 " Smith 's ' ' Mercantile Law, ' ' Vol. I, Introduction, Ixziv. 
 
 "Maitland's "Select Pleas in Manorial Courts," p. 133 (Seldeu 
 Society). 
 
4 COMMERCIAL ARBITRATION 
 
 sua recuperare celeriter, si vicecotnites et majores eis non 
 facerent de die in diem ceteris jiisticice complementum; et 
 inde fiat commissio extra ca/rta/m presentem concessa mer- 
 catoribiis antedictis, sciUcet de Mis quos sunt inter mer- 
 catores et mercatores, secundum legem mercatoriam, 
 deducenda."" Sir Leoline Jeakyns says: "Nothing can 
 be more pernicious to seafaring and trading men than de- 
 lays in their lawsuits, and therefore every maritime country 
 in Christendom has a separate judicature for differences 
 among merchants and seafaring men. . . ." ^' The institu- 
 tion known as the "GUd Merchant" was an association for 
 the purpose, among others, of mutual arbitration. Carter 
 tells us:" "Members of the same gild were bound to 
 bring their disputes before the gild before litigating the 
 matter elsewhere." He tells us that this function of the 
 gild merchant was "recognized by the kings." The 
 great Gild of St. John of Beverley of the Hans House 
 held charters from the Archbishop of York, with the 
 royal license of Henry I, granting to the town and bur- 
 gesses a gild merchant amd the right of holding pleas 
 among themselves, and that this grant was confirmed 
 by an inspeximus charter of Richard II in 1379. The 
 City of York has a charter of John, dated 1200, giving 
 a gild merchant the liberties pertinent;^' and in 1581 the 
 Queen allowed the merchants there to elect a governor 
 
 "Smith's "Mercantile Law," "Vol. I, Introductioii, Ixxiv, Ixxv, 
 quoting Prynne's "Animadversions," p. 23. 
 
 (Item, We ordain and grant that some certain loyal and discreet 
 man residing in London shall be appointed judge from among the 
 well-known merchants, before whom it shall be lawful speciaUy to 
 plead and quickly to recover their debts, if the sheriffs and elders 
 shaU not do for them a complete measure of quick justice from day 
 to day; and to that end, let a commission under the present charter 
 be granted to the aforesaid merchants, to wit, a charter for deciding 
 those questions which arise between merchants and merchants, accord- 
 ing to the law merchant.) 
 
 ""Life of Sir L. Jenkyns," Vol. I, Ixxxi. (Smith, Vol. I, Intro- 
 duction, Ixxvi.) 
 
 ""History of English Legal Institutions," p. 268. 
 
 "Gross: "The Gild Merchant," Vol. II, p. 279. 
 
BUSINESS MEN'S TRIBUNALS 5 
 
 and eighteen assistants, with power, inter aim, to try all 
 suits among its members or between the latter and others.^' 
 "In a charter to the city of London (52 Hen. Ill) it is 
 granted to the citizens not to plead without the walls, 
 except (wiier alia) to pleas concerning merchandise, which 
 are wont to be decided by Law Merchant in the boroughs 
 and fairs by four or five of the citizens there present."^" 
 In 1647 there was established in the Town of New 
 Amsterdam, afterward New York, a court of arbitrators 
 which was called "The Board of Nine Men," under an 
 ordinance that provided for the appointment of nine arbi- 
 trators who should serve in rotation, three at a time, one 
 arbitrator being a merchant, one a burgher, and one a 
 farmer. The ordinance contained the following: "whereas 
 in consequence of the increase of the Inhabitants, Lawsuits 
 and disputes which parties bring against each other, are 
 multiplied, and also divers questions and quarrels of tri- 
 fling moment, which can be determined and disposed of by 
 Arbitrators, but, in consequence of matters of greater 
 importance, frequently remain over and undecided, to the 
 prejudice and injury of this place and the good people 
 thereof, and also to the great expence, loss of time and 
 vexation of the contending parties . . .," three out of 
 those chosen as arbitrators are required to attend "once a 
 week, on Thursday, the usual Burgher Court Day to our 
 General Council," and further provided that "parties re- 
 ferred, being judged shall remain bound to submit without 
 opposition to the pronounced decision" ^* of the arbitrators. 
 This board of arbitrators continued until 1653, the time 
 when a municipal form of government was granted to New 
 Amsterdam, and there was then created the Court of 
 Burgomasters and Schepens. The citizens of New Amster- 
 
 ^'Ihia., Vol. II, p. 280. 
 
 "Carter, p. 268, note 4, citing Norton, Comm. 416. 
 "Edgar J. Lauer: "The New Practice and Procedure in the 
 Municipal Court of The City of New York," p. 5 (1916). 
 
6 COMMERCIAL ARBITRATION 
 
 dam were permitted to elect one Schout (Sheriff), two 
 Burgomasters (Mayors) and five Schepens (Aldermen). 
 This court continued during the remainder of the Dutch 
 rule, and by proclamation of Governor NicoUs on June 
 12, 1665, when the town came under English sovereignty, 
 it became known as the Court of the Mayor and Aldermen, 
 or Mayor's Court; and later, when New York became an 
 independent State, it became the Court of Common PIceis 
 for the City and County of New York. In 1874 the Legis- 
 lature created^" within the City of New York the office of 
 "Arbitrator of the Chamber of Commerce of the State of 
 New York," and the following year fixed ^^ the salary at 
 ten thousand dollars a year. Though no salary was ap- 
 propriated immediately, in the year 1878 twenty thousand 
 dollars, representing two years' salary, was appropriated "^ 
 for the arbitrator and six thousand dollars for a clerk. 
 This act repealed the provision for the salary of the arbi- 
 trator and clerk. The court was opened for business on 
 the 15th of October, 1874, and continued to sit until the 
 year 1881, though no provision had been made for the 
 compensation of an arbitrator subsequent to 1878; and 
 until his death Enoch L. Fancher acted as judge of that 
 court, serving without compensation. The laws providing 
 for the establishment of the tribunal have never been 
 repealed.'''' 
 
 Judge Lauer, speaking of the Arbitration and Concilia- 
 tion Branch of the Municipal Court now existing pursuant 
 to the recent amendment of §6 of the Municipal Court 
 Code, permitting that Court "to provide systems of concili- 
 ation and arbitration and to enter judgment upon an award 
 of arbitrators," says that this branch of the Court "will 
 be a place to settle disagreements, not to fight them out. It 
 
 »L. 1874, c. 278. 
 
 »L. 1875, c. 495, 56. 
 
 "L. 1878, c. 252. 
 
 "See further upon this subject. Chapter xxi, pogt. 
 
BUSINESS MEN'S TRIBUNALS 7 
 
 will not only save time and money; it will save fighting. 
 If it doesn't always bring exact justice, it will often bring 
 something better. It will bring a friendly understanding, 
 a thing almost impossible at the end of a contested suit." " 
 In a report made in the reign of Henry II on the customs 
 of Newcastle on Tyne as they existed during the reign of 
 Henry I, the following sentence appears:" "Inter bur- 
 gensem et mercatorem si placitum oriatur, finiatur ante 
 tertiam refluxionem maris," indicating a mercantile court 
 doing speedy justice. And again, in the Doomsday of 
 Ipswich, drawn up in the nineteenth year of Edward I, a 
 recension of the old book of the second year of John, it is 
 stated that whereas pleas between persons sitting and 
 dwelling in the town should be pleaded "by two days in 
 the week," the merchant stranger is treated with the 
 greater consideration which seemingly was everywhere 
 shown to him: — 
 
 "The plees betwixe straunge folk that men clepeth 
 pypoudrous, shuldene ben pleted from day to day. . . . The 
 plees in tyme of feyre betwixe straunge and passant shul- 
 dene bene pleted from hour to hour . . , and the plees 
 yoven to the lawe maryne, that is to wite, for straunge 
 marynerys passaunt and for hem that abydene not but her 
 tyde, shuldene been pleted from tyde to tyde. ' ' 
 
 Baldasseroni says concerning arbitration: "By this 
 mode of settling disputes, law-suits are nipped in the bud, 
 the restraints of forms of process are thrown aside, and 
 the mind of the merchant is not distracted from his own 
 business by the conduct of the suit."^" BelP' comments 
 upon the statute 13 and 14 Vict. c. 36, by which provision 
 was made (§50) to enable parties to agree by mutual 
 
 "Lauer, p. 73. 
 
 •* Carter, p. 269. 
 
 "Delle Assiourazioni Maritt.: Del Tratt. dell' Avar. T. 10, Dei 
 GUidizj, see. 38. Ed. Firenze, 1786, Tomo III, p. 154. (Quoted by 
 Bell: "Law of Arbitration in Scotland," p. 6.) 
 
 "Bell: "Law of Arbitration in Scotland," p. 14. 
 
8 COMMERCIAL ARBITRATION 
 
 consent, in any case before the Court of Session in whicli 
 an issue was to be tried, to have it tried before one, three, 
 five, or seven arbitrators, sworn and sitting as a jury. "It 
 was declared," says he, "that the sole arbiter, — or, where 
 there were several arbiters, a majority of their number, — 
 should have all the powers of a unanimous jury. It was 
 apparently intended by this means to afEord one method 
 of supplying what is still so much wanted in jury trial; 
 the power of selecting a tribunal, composed of persons who 
 are specially fitted, by experience or otherwise, for dealing 
 with the particular question to be tried, — such as a jury 
 of merchants to try a mercantile question arising among 
 partners; or the like."" 
 
 The London Times in an editorial in 1891 (May 8), at a 
 time when the relative value of judicial disposition of 
 commercial controversy as compared with arbitration by 
 business men was under public discxission, said: 
 
 "Long before 1883 there had grown up a class of arbitra- 
 tors who, with all their shortcomings, were expeditious 
 and acquainted first-hand with the subject-matter in dis- 
 pute. All their lives they had handled the cotton, wool, 
 or seeds over which the parties were quarreling. They 
 had written, made advances, bought and sold upon the 
 documents, the construction of which was in question. 
 They had obeyed, perhaps helped to form, the trade cus- 
 toms to which the disputants appealed. That class of ex- 
 perts has increased. Their skill has grown with experience, 
 and it is altogether too late to think of ousting them." 
 
 And Mr. Rosenbaum, a modem student of the subject, 
 sa3's in his "Report on Commercial Arbitration in Eng- 
 land" (made for the American Judicature Society, Bulle- 
 tin XII) : "What was true in 1891 is even more true in 
 1916, and every business has its expert arbitrators, gen- 
 erally older and seasoned veterans who were in the thick 
 of the fight for years and retired to make way for the 
 
 "Italics ours. 
 
BUSINESS MEN'S TRIBUNALS 9 
 
 younger men."^^ In the Chamber of Commerce of New 
 York, the Committee on Arbitration reports that "The 
 simple, genuine confidence with which the business man 
 approaches your Committee and submits his troubles is 
 very marked. "While he may not always get the award that 
 he expects, any more than he may always realize his 
 expectations in a lawsuit, those who have used our facili- 
 ties have been (with but possibly one exception) satisfied 
 with the awards of the arbitrators. There has been no 
 case as yet in which resort to the courts has been necessary 
 to enforce an award. ' ' ^^ 
 
 " American Judicature Society, Bulletin XII, by Samuel J. Eosen- 
 baum, p. 53. 
 "Report of the Committee on Arbitration, 1917. 
 
CHAPTER II 
 
 THE PREVENTION OF UNNECBSSAEY LITIGATION 
 
 Endorsed upon the pamphlet printed and distributed 
 by the American Bar Association, containing the Canons 
 of Ethics for the conduct of the Bar, appears this quota- 
 tion from Lincoln: "Discourage litigation. Persuade your 
 neighbors to compromise whenever you can. Point out to 
 them how the nominal winner is often a real loser — in 
 fees, expenses and waste of time. As a peacemaker, the 
 lawyer has a superior opportunity of being a good man." 
 Recently the lawyers of the State of New York have taken 
 this injunction very much to heart. The Committee on 
 Prevention of Unnecessary Litigation was created by the 
 State Bar Association in 1914. In 1917, in an exhaustive 
 report, it referred to the system of commercial arbitration 
 existing under the rules of the Chamber of Commerce of 
 the State of New York and said concerning its own plan : 
 "The proposed by-law and rules are modeled after those 
 of the New York Chamber of Commerce, which has main- 
 tained a system of arbitration almost continuously for 
 more than a hundred years. " The committee recommended 
 that the State Bar Association supplement the facilities of 
 the Chamber of Commerce by providing an official list of 
 arbitrators made up of members of the Bar. Earlier, and 
 in 1914, Percy Werner, a member of the St. Louis Bar, 
 wrote concerning the desirability of lawyers as arbitra- 
 tors: "... where parties having a private disagreement 
 which they are unable to settle resort to lawyers who are 
 likewise unable to bring about an accord and satisfaction, 
 these lawyers shall elect from among their fellow-members 
 
 10 
 
UNNECESSARY LITIGATION 11 
 
 of the bar a judge before whom to try their case, follow- 
 ing the statutory form for arbitrations. Their agreement 
 of submission, stating the subject matter of the contro- 
 versy, with, of course, sufficient certainty that it can always 
 be used in support of proof of res adjudicata, constitutes 
 the only pleading in the case. Mere matters of procedure, 
 as to time, place and manner of trial, are regulated by the 
 attorneys and arbitrator, or controlled by the latter, as 
 may best suit the convenience of all concerned." At the 
 1916 session of the New York State Bar Association, the 
 committee was authorized to negotiate with the Chamber of 
 Commerce for the adoption of "Rules for the Prevention 
 of Unnecessary Litigation." As a result of these efforts, 
 there was jointly prepared and is now circulated a printed 
 pamphlet entitled "Rules for the Prevention of Unneces- 
 sary Litigation,"* among which is included the follow- 
 ing advice (under the heading "Prevention of Litigation 
 after the Facts Become Fixed and before Suit") : 
 
 "After the facts upon which a dispute can be based 
 have become' fixed, either before or after a dispute has 
 arisen, it is possible to do much to prevent litigation. 
 What can best be done in each case and whether with or 
 without legal advice, necessarily depends upon the facts 
 and the parties to the prospective controversy. DifEei-ences 
 may be minimized, adjusted or arbitrated. If not so dis- 
 posed of, litigation will usually ensue." 
 
 Arbitration. — ^" "Where differences cannot be adjusted 
 between the parties or their attorneys and the interven- 
 tion of a third party becomes necessary, there are several 
 forms which arbitra:tion may take. The arbitration may 
 be (1) informal, (2) under the Code, (3) under the aus- 
 pices of a commercial body, or (4) under the auspices of 
 a bar association. 
 
 ' ' The experience of many business men and lawyers tes- 
 
 ^See Appendix A. 
 
12 COMMERCIAL ARBITRATION 
 
 tifies to the advantage of these methods of adjusting dif- 
 ferences wherever possible. They are inexpensive, speedy 
 and peaceful." 
 
 From this brief survey of thei official activity of the 
 Bar of the State of New York, it will be seen that it is made 
 the affirmative duty of members of the Bar to avert 
 the clashes, the bitternesses and the waste of litigation. It 
 is regarded as a high virtue to settle a controversy with- 
 out suit or by arbitration, if it can be done. Nor is this 
 movement confined to the Bar of New York State. In an 
 article appearing in the London Law Jowrrud, entitled 
 "Lawyers and Conciliation," it is stated:^ "Both in 
 external and internal affairs the movement for the peaceful 
 settlement of differences is making remarkable progress 
 before our eyes." 
 
 How, then, can it be argued that it is part of the duty 
 of the Court to prevent parties from settling their con- 
 troversies in any manner they choose? As a matter 
 of fact, the Court is assiduous to enforce releases unless 
 they have been procured through fraud or mistake. In 
 disposing of accounts stated, the Court is exceedingly re- 
 luctant to disturb adjustments that have been made, 
 yet by virtue of such settlements or exchange of releases 
 sometimes grave questions of law are kept from determina- 
 tion by the Court — often questions, the determination of 
 which would contribute much to the comprehensive de- 
 velopment of the common law. Prom the point of view 
 of society, in some instances it might sometimes be better 
 to secure a determination of the particular question of 
 constitutional or other law involved; yet this considera- 
 tion has never prevailed with the Court, nor resulted in 
 the rejection of an adjustment or a settlement of the con- 
 troversy, with thei consequent waiver and elimination of 
 an interesting and perhaps important question of law. 
 
 '44 London Law Journal (Feb. 20, 1909), p. 114. 
 
UNNECESSARY LITIGATION 13 
 
 Judge Allen, speaking for the Court 6f Appeals,' said, in 
 1872, that the rule permitting revocation of submissions to 
 arbitration owes its origin in large measure to an aversion 
 of the courts, "from reasons of public policy, to sanction 
 contracts by which the protection which the law affords 
 the individual citizens is renounced." But Judge AUen 
 went on to say that "The tendency of the more recent de- 
 cisions is to narrow rather than enlarge the operation and 
 effect of prior decisions, limiting the power of contracting 
 parties to provide a tribunal for the adjustment of possible 
 differences, without a resort to courts of law."* "The 
 better way, doubtless, is to give effect to contracts, when 
 lawful in themselves, according to their terms and the 
 intent of the parties; and any departure from this prin- 
 ciple is an anomaly in the law, not to be extended or ap- 
 plied to new cases unless they come within the letter and 
 spirit of the decisions already made." " A recent Pennsyl- 
 vania court (1913) held' that the constitutional guaran- 
 tees of liberty and property forbid the Legislature to 
 declare invalid any clause in a contract whereby an ar- 
 bitrator's award is made conclusive of the rights of the par- 
 ties thereunder. The Court holds that freedom of con- 
 tract may not be abridged except in the interest of good 
 morals or the welfare of the general public, and that the 
 statute in question promotes neither of these ends. In 
 a note discussing the decisions defining the scope of the 
 legislative power to limit freedom of contract it is said 
 that ^ ' ' The best considered decisions overthrowing legisla- 
 tion as repugnant to the due process clause recognize a 
 police power as broad as this (protecting citizen against 
 himself as well as to shield him from acts of others) , but 
 
 'Delaware, etc.. Canal Co. v. The Permsylvama Coal Company, 50 
 N. T. 250, at p. 258. 
 'Ibid., p. 259. 
 
 'Ihid., pp. 258-259. Italics ours. 
 •Adinolfi V. Bazlett, 242 Pa. 25, 88 Atl. 869. 
 '27 Harvard Lam Beview, p. 374. 
 
14 COMMERCIAL ARBITRATION 
 
 hold that the constitution declares a strong public pol- 
 icy in favor of letting every citizen work out his own 
 salvation, and that his power to do so should not be im- 
 paired except when necessary to correct an evident exist- 
 ing evil." And a recent writer on "Public Policy" 
 says: 
 
 "(1) In general any contract made by a competent 
 party, upon valuable consideration, when made freely and 
 intelligently, is valid," unless (2) it "bind the maker to do 
 something opposed to the public policy of the State or Na- 
 tion, or conflicts with the wants, interests, or prevailing 
 sentiment of the people, or our obligations to the world, or 
 is repugnant to the morals of the times," then "it is void, 
 however solemnly the same may be made. ' ' ' 
 
 "By 'public policy' is intended that principle of the law 
 which holds that no subject can lawfully do that which 
 has a tendency to be injurious to the public or against 
 the public good, which may be termed the policy of the 
 law, or public policy in relation to the administration of 
 the law."» 
 
 It has long been settled that the prevention of litigation is 
 a valid and sufficient consideration for the settlement of a 
 controversy; "for the law fwvors the settlement of dis- 
 putes."^" 
 
 "No investigation into the character or value of the 
 different claims submitted will be entered into for the 
 purpose of setting aside a compromise, it being sufficient 
 
 'Greenhood, "The Doctrine of Public Policy in the Law of Con- 
 tracts," p. 1. 
 
 " Ibid., p. 2. See Egerton v. Brownlow, 4 H. L. C. 1. 
 
 See arbitration cases: Nute v. Hamilton Mut. Ins. Co., 6 Gray 174; 
 Toiey v. The County of Bristol et al, 3 Story 800, 821. 
 
 " Parsons, ' ' Law of Contracts, ' ' Vol. I, p. *438. See Penn v. Lord 
 Baltimore, 1 Ves. Sen. 444; Wiseman v. Boper, 1 Chanc. 158; Barlow 
 V. Ocean Ins. Co., 4 Met. 270; Stapilton v. Stapilton, 1 Atk. 3; 
 Zane v. Zone, 6 Munf. 406; Taylor v. Patrick, 1 Bibb 168; Fisher 
 V. May, 2 Bibb 448 ; Brown v. Sloan, 6 Watts 321 ; Stoddard v. Mix, 
 14 Conn. 12 ; Bice v. Bixler, 1 W. & S. 456. 
 
UNNECESSARY LITIGATION 16 
 
 if the parties entering into the compromise thought at the 
 time that there was a question between them. ' ' " 
 
 So that we may conclude upon this examination of the 
 subject that, just as it is the duty of the Bar to dispose 
 of controversy amicably without resort to the courts, it 
 is at this date an accepted doctrine of the common law 
 that efforts, honestly made, by parties seeking to settle 
 their differences out of court, are to be encouraged and 
 enforced by the court; and that whatever may have been 
 the influences affecting a different procedure in the 
 past, in this day there is no disposition to guard 
 with any jealousy "the jurisdiction of the courts."" In 
 a footnote to Corpus Juris ^^ the rule of revocation is 
 called "a highly technical rule, and the enforcement of it 
 against the purposes of parties who have sought a settle- 
 ment of their disputes out of court by a tribunal of their 
 own choosing has at times provoked protest from common- 
 law judges." 
 
 Says Grier, J., in Fox v. The Bwilroad: '* "Such a clause 
 in contracts like those constantly made by corporations for 
 great public improvements, is absolutely necessary to pre- 
 vent the corporations from being ruined by endless litiga- 
 tion. It should be liberally construed and not subjected to 
 ingenious criticism in order to support the jurisdiction of 
 courts of law and encourage litigation."^" 
 
 "We shall examine the protest made in 1915 by Judge 
 
 "Parsons, "Law of Contracts," p. *439. Ex parte Luoy, 21 E. L. 
 & E. 199; Mills v. Lee, 6 Monr. 91; Moore v. Fitzwater, 2 Band. 
 (Va.) 442; Bennet v. Paine, 5 Watts 259; Pierson v. McCahill, 21 
 Cal. 122; Clark v. Gamwell, 125 Mass. 428; Flannagan v. Kilcome, 
 58 N. H. 443. 
 
 "Del., etc., Canal Co. v. The Pennsylvania Coal Company, 50 N. Y. 
 250; Judge Allen at p. 258 et seq. 
 
 "Vol. 5, p. 53, note 12a. 
 
 " 3 Wall. Jr. 243, at p. 247. 
 
 "See also Monongahela Navigation Co. v. Fenlon (1842), 4 Watts 
 & Sergeant 205; Calvin v. Provincial Insurance Co., 27 Tip. Can. 
 Q. B. 403; Grier v. Bilger, 13, Pa. 58 (1850); Snodgrass v. Gavit, 
 28 Pa. 221 (1857), and Appendices D and B. 
 
16 COMMERCIAL ARBITRATION 
 
 Hough, an honored member of the Federal Circuit Court 
 of Appeals of the Southern District of New York, but as 
 early as 1855 Baron Martin expressed his views as fol- 
 lows: " "I regret that the law is so, and that the legisla- 
 ture, when they were dealing with the subject of arbitra- 
 tion, did not ia all cases prohibit the revocation of refer- 
 ences." Maule, J., is reported to have said:^' "The old 
 rule upon which it was held that the power of an arbitrator 
 was revocable, was, that a power not coupled with an in- 
 terest, was revocable, — ^revocable by the authority which 
 created it. From that rule it was inferred, — erroneously, 
 as I think, — ^that one of the parties to a submission might 
 revoke without the other. It seems to me that that was al- 
 lowing one man to affect the interest of another. But it 
 was an inveterate error." ^^ 
 
 It has been repeatedly held that parties may stipulate 
 that the laws of another place or another country than the 
 one wherein the contract is made shall govern its interpre- 
 tation and remedy both as to the rights of the parties and 
 their remedies in case of a breach.^* Parties may even by 
 stipulation waive their right to appeal.^" There is strong 
 authority, also, as we shall presently find, for the legal 
 
 '^' Mills V. Bayley, i. .S. & C. 36, 41. 
 
 " ^ortftomptcm Gas-IAght Co. v. Parnell, 15 C. B. 630, 645, 80 
 ECL 630, 139 English Eeprint 572. 
 
 "Italics ours. 
 
 "jSee McAlKster v. Smith, 17 111. 328, 334; Union National Sank 
 V. Chapman, 169 N. Y. 538, 545; Grand v. lAvingston, 4 App. Div. 
 589, 593, 596, afllrmed 158 N. Y. 688 ; Dike v. Erie Railway Co., 41 
 N. Y. 113, 116; Le Breton v. Miles, 8 Paige 261; Greer v. Poole, 
 L. R. 5 Q. B. D. 272. 
 
 "Toimsend v. Masterson, 15 N. Y. 587; O. Sr L. C. S. S. Co. v. 
 V. #• C. n: B. Co., 63 N. Y. 176; Godfrey v. Moser, 66 N. Y. 250; 
 Biggs' V. C. M. Ins. Co., 125 N. Y. 7; Palmer v. Lavers, 105 N. E. 
 1000 (Mass. Supreme Jud. Ct. 1914); Eoste v. Bolton, 137 Mich. 
 522; Watson v. Wetter, 91 Pa. 385. Contra Muldrow v. Norris, 
 2 Gal. 74; Pahs v. Darling, 82 111. 142; Bank v. White, 220 Mo. 717, 
 736. 
 
 See also People v. Stephens, 52 N. Y. 306 ; Biggs v. C. M. Ins. Co 
 125 N. Y. 7 (25 N. E. 1058, 10 L. R. A. 684, 21 Am. St. Rep. 716) ; 
 Sogers v. Playford, 12 Pa. 181. 
 
UNNECESSARY LITIGATION 17 
 
 proposition that parties may . select the courts in 
 which the case is to be tried in the event of controversy 
 between them. Though this has been controverted, much 
 the better authority supports the view.^^ Judge Parker, 
 in the case of La, Oreve v. Mtna Live Stock Insuramce 
 Co.,"' said: "The suggestion that the Court should resent 
 this attempt to oust it of jurisdiction is unworthy of ex- 
 tended notice"; and a great English judge (Jessel, M. R.) 
 said: "... if there is one thing which more than an- 
 other public policy requires it is that men of full age and 
 competent understanding shall have the utmost liberty of 
 contracting, and that their contracts when entered into 
 freely and voluntarily shall be held sacred and shall be 
 enforced' by Courts of justice." "* So, also, the late Judge 
 Earl of the New York Court of Appeals said: "Parties 
 by their stipulations may in many ways make the law 
 for any legal proceeding to which they are parties, which 
 not only binds them, but which the courts are bound to 
 enforce."^* This superb policy of the law is illustrated 
 in many ways. The parties to a contract may require the 
 commencement of an action within a period shorter than 
 that required by Statutes of Limitations and thus make 
 their own Statute df Limitation.^^ They may limit their 
 
 '^ See "The Legality of Contracts Affecting the Jurisdiction of 
 Courts," by G. B. Slaymakor, 58 Cent. L. J. 64, 65; Mittenthal v. 
 Mascagni, 183 Mass. 19; Austricm, Lloyd Steamship Co. v. Gresham 
 Life Assurance Society, L. B. [1893] 1 K. B. D. 249 {see also post, 
 p. 217) and brief of Walter H. Pollak in Engel v. SJmbert Co., N. Y. 
 Supreme Court, App. Div., 1st Department, 166 App. Div. 394, V. 
 3071 Bar Association Beports. 
 
 " 81 Hun 28, at p. 30. 
 
 "Printing and Numerical Begistering Co. v. Sampson, L. E. 19 
 Eq. 462, at p. 465. 
 
 » Matter of N. 7., L. # W. B. B, Co., 98 N. Y. 447, at p. 453. 
 
 "Erie B. B. Co. v. Stone, 37 Sup. Ct. Rep. 633; Ames v. N. T. 
 Union Ins. Co., 14 N. Y. 253, 262; Bipley v. Aetna Ins. Co., 30 N. Y. 
 136, 163; Boaoh v. N. Y. ^ Brie Co., 30 N. Y. 546; Mayor of New 
 York V. Ha/milton Fire Inswrance Co., 39 N. Y. 45; Wilkinson v. 
 First National Fire Insurance Co., 72 K. Y. 499; Ketchum o. 
 Beldvng, 58 App. Div. 295; Clemens v. Am^erican Fire Insurance Co., 
 
18 COMMERCIAL ARBITRATION 
 
 liability for negligence ''^ and may, indeed, provide an 
 exclusive form of remedy whicli tlie courts will enforce." 
 
 Herbert Harley, Secretary of the American Judicature 
 Society, in an introduction to Bulletin XII issued by 
 his Society in October, 1916, says: "The present uni- 
 versal fear of litigation, with its slow and costly pro- 
 cedure and iaterminable appeals, is a principal reason for 
 this irregular method of reaching a settlement — for it 
 ought not to be dignified by the name of arbitration. 
 Its fault is not merely that of inexpertness but that it 
 is dominated by compulsion^ not by mutuality. Arbitra- 
 tion is the means by which this growing function is to 
 be methodized and regulated in a public manner. It 
 should be viewed, not as hostile to courts but as a special 
 method of adjudication adapted to certain modern needs, 
 a new arm of the law supplementing courts in a prac- 
 tical way." 
 
 This Bulletin is itself an illustration of the growing 
 tendency of the American Bar to treat arbitration as a 
 necessary and important means for securing justice vnth- 
 out resort to the courts. As Mr. Harley says: 
 
 "New ways of living and transacting business imply 
 new machinery in the law. Society is constantly devising 
 new tools to accomplish its work more economically. Com- 
 mercial disputes, aside from their technical nature, are 
 different in an essential way. In the law the rendering 
 of exact justice in the matter presented is a final aim. 
 But in business the settlement of a given dispute is not 
 the most important thing. The big thing is the rela- 
 tionship between the parties. In its formal tribunals the 
 
 70 App. Div. 435; Williams v. Fire Association of Philadelphia, 119 
 App. Div. 573; Bicldle)sbarger v. Hartford Insurance Co., 7 Wall. 
 386 (collecting authorities) ; Fullam v. N. 7. Union Insurance Co., 7 
 Gray 61. 
 
 "Anderson v. Erie B. S. Co., 171 App. Div. 687. 
 
 " See Eickman v. Sawyer, 216 Fed. Eep. 281 and cases cited. 
 
UNNECESSARY LITIGATION 19 
 
 law must ignore this preservation of relations between the 
 parties, however momentous. 
 
 "The essential difference appears to be that compulsion 
 is the central feature of judicial procedure, while mu- 
 tuality and voluntary submission underlie arbitration, giv- 
 ing it validity and affording a basis for successful con- 
 tinuance of business relations. Arbitration is thus seen 
 as a constructive social function weaving into the fabric 
 of commercial life to strengthen rather than sever its 
 threads." 
 
 To encourage and widen the field of arbitration, the 
 Society engaged Samuel G. Rosenbaum, of the Philadelphia 
 Bar, to make a study of Commercial Arbitration in Eng- 
 land. Mr. Rosenbaum, after seven months in 1915, made 
 his report, which the Society published as Bulletin No. 
 XII. 
 
 Space will not permit free quotation from this valuable 
 document. But the following references will give some 
 indication of the very general use to which arbitration is 
 now put in England. 
 
 "Efficient though the English courts are in disposing 
 of all but 3 per cent of their great volume of business 
 without letting it come to trial, there is a large mass of 
 disputes in mercantile and other matters that is never 
 brought into the duly constituted courts of law at all. 
 These disputes, instead of forming the basis of lawsuits, 
 are, for a variety of causes, and in a variety of modes, 
 submitted to arbitration, and there has grown up in Eng- 
 land a law, practice and custom of arbitration, which is 
 daily growing in bulk and authority and may almost be 
 said to amount to a system of jurisprudence in itself. 
 
 "The greatest impetus to the spread of arbitration in 
 England was due to the American Civil War. 
 
 "During and after that conflict there was an enormous 
 number of disputes between cotton shippers and traders 
 in the South, on one side, and the factors in the Liverpool 
 
20 COMMERCIAL ARBITRATION 
 
 cotton market on the other, ranging from differences over 
 liability for war risks to the condition in which shipments 
 of cotton were arriving in the Mersey. So many arbitra- 
 tions were taking place at that time in the Liverpool 
 market that the Liverpool Cotton Association, an organiza- 
 tion composed of brokers and buyers in the trade, set up 
 an Arbitration Committee to pass on all questions in dis- 
 pute and the members inserted in all their contracts a 
 clause requiring disputes to be submitted to the Arbi- 
 tration Committee of their Association. The success of 
 the plan strengthened the position of the Association in 
 the trade, and that, in turn, increased the power of the 
 Arbitration Committee so that practically every difference 
 that arose in the Liverpool cotton market between buyers 
 and sellers, whether English or foreign, came to the Ar- 
 bitration Committee for settlement. 
 
 "Other trades were quick to see the advantage of this 
 system of organized arbitration. The Liverpool Com 
 Trade Association soon established a similar committee, 
 and then the General Brokers' Association followed suit. 
 The London markets next took it up ; the associations ex- 
 isting in the Corn Trade, the Oil Seed Trade, the Cotton 
 Trade, the Coffee Trade, and others, set up their own 
 arbitration committees, and year by year, other associa- 
 tions either adopted the plan or came into existence with 
 trade arbitration as one of their avowed objects. The 
 various exchanges all molded their committees on similar 
 lines — the Stock Exchange, the Coal Exchange, the Prod- 
 uce Exchange, and others. Then professional bodies 
 began to see the advantage of providing a medium for set- 
 tling disputes at home instead of by strangers, and the 
 Architects, the Engineers, the Estate Agents, the Auc- 
 tioneers and other such groups established domestic tri- 
 bunals. ' ' 
 
 The result is that "Today there is not a trade or pro- 
 fessional organization in England that does not provide 
 
UNNECESSARY LITIGATION 21 
 
 some means for the arbitration, of disputes that arise 
 among members or between members and others, and fre- 
 quently between non-members engaged in similar work. 
 It is not surprising, therefore, that by this means a 
 great volume of litigation is avoided and commercial dis- 
 putes kept out of court." 
 
 "In the Incorporated Oil Seed Association the total 
 number of arbitrations begun averages between 5000 and 
 6000 a year; roughly one-half of these are settled or 
 withdrawn without going further." 
 
 "In the London Corn Trade Association arbitrations 
 to the extent of 2000 a year are commenced, and the 
 appeals run from 100 to 300 a year; but there are seldom 
 more than two or three cases stated in a year. In the 
 London Oil and Tallow Trade Association about 150 awards 
 are jBled each year (which would mean more than that 
 number of arbitrations commenced) and against those 
 about 15 appeals a year are taken." 
 
 "In the London Jute Association there are 1200 arbi- 
 trations commenced in a year. ..." 
 
 "In the Refined Sugar Association (which is confined 
 solely to Continental refined sugar) there are about 60 
 awards a year. ..." 
 
 "The Dried Fruit Trade Association has about the same 
 number and pursues the same policy with regard to stating 
 a case. There are many associations, such as in the Cattle 
 Food Trade, in which arbitrations run from a dozen to a 
 hundred a year, out of which no case has ever been stated 
 to the courts." 
 
 "Since the war nearly all the associations have had 
 occasion to state cases arising out of disputes over the 
 
22 COMMERCIAL ARBITRATION 
 
 effect of war on contracts; questions of liability for total 
 breach and inability to perform, questions of insurance 
 and war risk at sea, questions arising out of the familiar 
 'Restraints of Princes' clause in contracts, and questions 
 arising out of the several international embargoes, have 
 caused a flood of litigation in the City, which, commencing 
 in the arbitration rooms where the facts were definitely 
 ascertained and disposed of, is now slowly working its way 
 westward through the Lower Courts to the House of 
 Lords." 
 
 "That the volume of arbitrations has been consistently 
 large in preceding years is borne out by the following 
 phrases from legal journals for various dates: 
 
 "1901: 'Commercial men are often heard to say that arbi- 
 tration as a means of settling their many and varied disputes, 
 is infinitely more satisfactory than recourse to ordinary legal 
 tribunals.' (110 Law Times 257). 
 
 "1905 : 'In most agreements entered into between parties now- 
 adays, relative to commercial transactions, we find the introduc- 
 tion of an arbitration clause.' (118 Law Times 426). 
 
 "1909 : 'We have every reason to believe that the business in 
 courts of arbitration — or as they are sometimes called, the ir- 
 regular tribunals — has largely increased.' (53 Solicitors' Journal 
 424)." 
 
 Mr. Rosenbaum gives us a reference to the 1913 volume 
 of the Civil Judicial Statistics (Parliamentary Papers 
 Cd. 7267) in which Sir John Macdonell, the King's Re- 
 membrancer, says: 
 
 "The large and rapidly increasing number of disputes 
 are determined by arbitration. Many trades have com- 
 pletely organized systems of arbitration for the settle- 
 ment of disputes relative to quantity and quality of goods 
 and as to the performance generally of mercantile con- 
 tracts. Many of the arbitrations are conducted infor- 
 mally and never come before the courts, or if they do, 
 
UNNECESSARY LITIGATION 23 
 
 only upon applications under the Act of 1889 to enforce 
 awards, or for the appointment of an arbitrator or um- 
 pire. 
 
 "It is more and more the practice to introduce an ar- 
 bitration clause into contracts, with the result that dis- 
 putes are determined outside of the courts, no applica- 
 tions being made thereto, except occasionally, to stay pro- 
 ceedings brought contrary to the terms of such clause. I 
 have endeavored to obtain some approximate figure as 
 to the amount of disputes terminated in this manner, but 
 the data requisite even for an approximate estimate are 
 not accessible. 
 
 "There is very often a clause in contracts, particularly 
 for the execution of works, that the engineer or architect 
 of an employer is to be the sole and final judge in all 
 disputes which may occur under the contract or as to its 
 meaning; which may also mean the withdrawal from the 
 court of disputes which would otherwise come before it." 
 
CHAPTER III 
 
 PUBLIC POLICY AND COMMEECIAL AEBITEATION 
 
 Neaelt all of the writers on arbitration, in introductions 
 to their volumes, have delved somewhat into the history of 
 arbitration in all countries and in all times. Perhaps 
 the best of these studies is to be found in Bell's "Law of 
 Arbitration." Reference to almost any of the many works 
 cited in our Bibliography will confirm the statements in 
 this chapter. Aristotle quotes a passage from Archytas 
 in which he compares an arbitrator to an altar, as being 
 a refuge for the injured. (Aristotle's "Rhetoric," Liber 
 III, Chap. II.) At Athens there were two kiads of pro- 
 ceedings that were called arbitration. For instance, the 
 Greek word for arbitration is diaeta. In one case the arbi- 
 trators constituted what is described in the "Penny Cy- 
 clopaedia" as a "Court of Reconcilement." "An appeal 
 lay from their decision to the ordiaary courts; and some- 
 times the arbitrator referred the cause to their judgment 
 at once, without pronouncing any sentence of his own."^ 
 In the other class of proceedings the parties were free to 
 refer their differences to whomsoever they chose. The sub- 
 mission was generally made by a written agreement, which 
 often contained an engagement by third persons to be- 
 come sureties for its performance.^ In these cases the 
 arbitrator was not required to be governed by rigid ap- 
 plications of the law, but was free to decide according to 
 
 * "Penny Cyclopaedia," Vol. II, p. 252, citing Eeraldi Animadver- 
 siones, p. 372. 
 
 2 Demosthenes' Speech against Apaturiua, Chapter 4. 
 
 24 
 
PUBLIC POLICY 25 
 
 the merits of the particular case before him.* But there 
 was no appeal from his award to any other tribunal what- 
 soever* Bell says that both in ancient and modem times 
 resort to the settlement of disputes by arbitration rather 
 than by the intervention of. courts of law has been had so 
 often that it seems probable that the origin of "this amica- 
 ble private tribunal is of an earlier date than the regular 
 establishment of public Courts, and that Arbitration, in 
 fact, took its rise in the very infancy of Society. ' ' " That 
 whenever parties had a dispute that it was inconvenient 
 to settle by force or violence, which nevertheless required 
 a settlement, "Nothing seems more likely than that they 
 should bethink themselves of the expedient of referring 
 the question to some mutual friend, or neutral third party, 
 as umpire between them, and agreeing to abide by his de- 
 cision."* Bell regards the famous award delivered on 
 Mount Ida by the royal shepherd Paris as one cause celebre 
 in the law of arbitration of a date so remote that it be- 
 longs to fabulous antiquity. {Arbiter es formce certamina 
 siste Dearum — Ovid, "Heroid, Epist." xvi, 69.) And 
 it is true that, as the story goes, upon the failure of all 
 other -means of adjudicating on the rights of rivals, both 
 powerful and so excited, the parties agreed to a submission 
 to Paris as sole arbiter, and thus speedily determined by 
 final judgment a dangerous dispute, balking the Goddess 
 Discord of her sinister aim.'' "Even after regular Courts 
 
 'Aristotle— -"Ehetoric," I, 14. 
 
 * See the law quoted by Demosthenes against Meidias, Chapter 26. 
 
 •Bell, p. 1. 
 
 'Ibid. 
 
 "'The introduction of arbitration seemed to be coeval with the 
 foundation of our law;" per L. Pres. Blair, in MaeCallum, etc., 
 June 26, 1810 j F. C. "Lors des premUres sociStSs, les differends se 
 jugeaient par les p^res de famille; de Id est venii le now, de tribunal 
 patriarchal, donne d celui des arbitres. Le commerce, aussi ancien 
 que le monde, n'avait point autrefois, pour ses faits eiviU et comr 
 merciaux, d' autre tribunal." [English trans.: In the earliest forms 
 of society, disputes were tried by the heads of families, whence is 
 derived tie name of patriarchal tribunal, now given to the oflSce of 
 arbitrator. Commerce, as old as the world, in former times had for 
 
'26 COMMERCIAL ARBITRATION 
 
 of law had been duly established," says Bell,' "and were 
 so constituted as to command the respect and confidence 
 of the community, recourse to arbitration continued never- 
 theless to be frequent among many of the most civilised 
 nations, at all periods of history. ' ' 
 
 Bell attributes the frequent resort to arbitration as due 
 to the fact that there are many questions "which, in their 
 own nature, are best suited for the determination of a 
 judge who is expressly selected by the parties themselves 
 on account of his special fitness for trying cases of that 
 particular class."" And as illustrations of these, he finds 
 the purely mercantile questions, such as involve the ex- 
 amination of merchants' books and accounts and "require 
 an intimate practical acquaintance with commercial usages 
 and affairs." "It can scarcely be doubted," says he, "that 
 parties, having a dispute, would generally act with pru- 
 dence in selecting one or more mercantile men of ex- 
 perience, firmness, and impartiality to arbitrate between 
 them." This is especially true where the services of ex- 
 perts are required. "In a public court," says he, "the 
 judge or the jury would probably require the aid of such 
 men, before disposing of cases like these." Why not let 
 them be the arbiters? Then again, disputes which "turn 
 on the opinion or professional knowledge of a practical 
 engineer, a practical shipwright, an architect" — all of these 
 cases make for the large and daily increasing group which 
 fall under arbitration. "Besides, there are whole classes 
 of cases in which, from special circumstances — such as the 
 near relationship of the antagonists, or the intimate con- 
 fidence which has at one time subsisted between them, or 
 the indelicate nature of the investigation which is in- 
 
 its civil and mercantile transactions no other form of tribunal 1 
 (Boucher's introductory " Becherches," etc., prefixed to his French 
 translation of II Consolato del Mare. Paris, 1808. T. I o 3 ^ 
 
 •BeU, p. 2. ' ^" ■•' 
 
 'Ihid. 
 
PUBLIC POLICY m 
 
 volved, etc. — it is best in every respect that the controversy 
 should he conducted and decided before a private tri- 
 bunal."^" And in addition, he gives another important 
 reason for the general acceptation of arbitration as a means 
 of disposing of mercantile disputes in the delays and ex- 
 penses incidental to procedure in court which are "unfor- 
 tunately proverbial." 
 
 Among the Romans, the employment of arbitrators wi 
 finiendas lites largely obtained from an early period. This 
 appears not only from the mention made of arbiters in the 
 law of the twelve tables and in various works, particularly 
 Cicero 's, but still more from the number of practical topics 
 in arbitration law which are treated of in that title of 
 the Pandex which covers the subject.^^ In France from 
 an early period questions arising out of marine insurance 
 contracts and questions arising out of partnership con- 
 tracts were submitted to arbitration. By the royal Or- 
 donnance (1673), Title IV, Art. 9, it was required that in 
 every contract of copartnership there should be inserted 
 a provision for the submission of certain classes of ques- 
 tions that might arise between the partners to the de- 
 termination of arbitrators, and where this clause might 
 have been omitted from any such contract the law implied 
 or supplied such a provision. Furthermore, in order that 
 submissions might not be avoided in certain classes of 
 cases it was provided that if the parties were to name 
 arbitrators and one of them failed to name an arbitrator, 
 either at the outset or subsequently because of the death 
 of an arbitrator before the close of a submission, the 
 court was to name an arbitrator in the place of the party 
 so failing. In the modem Code de Procedure Civil, an 
 entire title is appropriated to the careful regulation of pro- 
 cedure in arbitration. In Scotland in 1695, Articles of 
 
 "Hid., p. 3. 
 
 " Ibid., p. 6. [Lib. 4, T. 8. De reeeptis, gvi a/rbitrwim reeepervmt, 
 lit sententiam dicant.} 
 
28 COMMERCIAl, ARBITRATION 
 
 Regulation were passed, in whieh appears the following 
 recital : 
 
 "That, for the cutting off of groundless and expensive 
 pleas and processes in time coming, the Lords of Session 
 sustain no reduction of any decreet-arbitral that shall be 
 pronounced hereafter upon a Subscribed Submission, at 
 the instance of either of the parties-submitters, upon any 
 cause or reason whatsoever, unless that of corruption, bri- 
 bery, or falsehood, to be alleged against the judges-arbi- 
 trators who pronounced the same." ^^ It was this act that 
 in Scotland, as Bell tells us, "truly did little or nothing 
 else than to restore the Contract of Submission to its na- 
 tive force and vigour, and to secure for an arbiter's award 
 that degree of conclusive finality, which it was the very 
 object of both parties to confer upon it, when they orig- 
 inally entered into the contract."^' 
 
 In Denmark courts of arbitration or conciliation were 
 established about 1795 and are said to have been attended 
 with extraordinarily beneficial effects.^* In towns other 
 than Copenhagen, "the chief magistrate proposes five or six 
 of the more respectable citizens for arbitrators, of whom 
 the commonalty of the town elect two. . . . All matters of 
 civil litigation may be referred to these official arbitrators. 
 ... It appears that . . . the arbitrators in these tribu- 
 nals have no power to compel the parties to settle their 
 differences . . . they are at liberty to discuss their respect- 
 ive rights in the ordinary courts of justice. It is neces- 
 sary, however, that before a suitor commences an action 
 in the superior courts, he should prove that he has already 
 applied to one of the courts of conciliation. These courts 
 . . . were . . . multiplied rapidly in Denmark and Nor- 
 way, and are said to have produced an astonishing decrease 
 in the amount of contentious litigation. (See Tableau des 
 
 "Bell, p. 13. 
 
 "76td., p. 14. 
 
 ""Penny Cyclopedia," Vol. II, p. 253. 
 
PUBLIC POLICY 29 
 
 J^tats Danois, par Catteau, tome 1, p. 296.) "" J, P. Arch- 
 bold on Arbitration and Award writes: "The expense of 
 an action or bill in equity, in comparison with the moder- 
 ate expense of an arbitration, would in ordiaary cases in- 
 duce parties about to be involved in litigation to choose 
 the latter, if they can agree upon the appointment of an 
 arbitrator well versed in the law or equity applicable to 
 the case, and upon whose honour they may depend that he 
 will act impartially as a judge between them, and not as 
 the partisan of either."^* Kyd says:" "A conviction of 
 the good policy of encouraging these domestic tribunals, has 
 induced those who have presided over the formation of 
 the civil code, to lend them their assistance to enforce 
 obedience to their decrees." Writing in 95 Lmo Times, 
 524-528 (Oct. 14, 1893), H. Bentwitch says that during 
 the whole existence of the Hebrew state in Biblical times 
 "and even later on, during the period of exile, a system 
 of arbitration was the sole mode adopted for the settle- 
 ment of private disputes, the Beth Din (a chamber of 
 arbitration, consisting of any three persons learned in 
 the law) having cognisance of, and the right to decide, 
 all such cases. It was," says Bentwitch, "indeed, a 
 maxim that no man should be encouraged or assisted to 
 litigate. ..." Bentwitch writes: "In the older Roman 
 law there was no complete remedy for non-performance 
 of the award, unless the parties bound themselves recipro- 
 cally either to perform what should be awarded or to incur 
 the forfeiture of a sum of money or of some other spfeciflc 
 thing. This, however, was remedied by Justinian, who 
 enacted that, whether the submission was under a penalty 
 or not, there should be no appeal after a lapse of ten days 
 from the judgment, and each party should then have a 
 remedy against the other based on the judgment in case 
 
 "Ibid., pp. 233-4. 
 
 "Preface, p. v. 
 
 ""A Treatise on the Law of Awards," by Stewart Kyd, pp. 3, 4. 
 
30 COMMERCIAL ARBITRATION 
 
 of non-performance. And the same emperor enacted that 
 where the submission was accompanied by an oath to stand 
 to the award, or the arbitrator, by the consent of the 
 parties, bound himself by an oath to end the dispute with 
 all regard to truth, both parties should be absolutely 
 bound. " ^* In Ireland, Bentwiteh tells us, forty of the most 
 eminent merchants in Dublin conducted a tribunal which 
 flourished for nearly two centuries, called the "Ouzel Gal- 
 ley Arbitration Society." All disputants were at liberty 
 to select any arbitrators they chose from the list of the 
 merchants. It was founded in 1700 and "only ceased to 
 exist within the last five years" (that is, 1888)." In 1785, 
 in Edinburgh, a chamber of commerce was inaugurated. 
 Before it had been long established, it had become gen- 
 erally recognized as a tribunal of commerce for the set- 
 tlement of disputes between traders. ^° In France, from 
 the time of St. Louis (1250) "registers of the persons 
 engaged in different businesses were formed to 'expedite 
 and conclude pleas,' and merchants had their own special 
 judges in the quarters where commercial transactions were 
 most frequent."" The "Assembly of Notables," founded 
 in 1560, was made up of the foremost citizens of France 
 and was the parent of the present Tribunal de Commerce. 
 In 1883 it became the Tribunal de Commerce. "Side by 
 side with this institution have grown up the ConseUs de 
 Prud'hommes, the first of which was established in 1452." 
 Its function is to settle disputes between employers and 
 employed and to settle strikes generally. The Tribunal 
 de Commerce is made up not of professional judges, but 
 of merchants, elected for a limited time by the vote of 
 their fellows: "this election being regarded as equivalent 
 to the choice of an arbitrator for business disputes. ' ' ^^ 
 Similar tribunals have been formed in Italy and Spain. 
 
 »95 Law Times 524-525. 
 "76id., p. 525. 
 "/6id., p. 527. 
 
PUBLIC POLICY 31 
 
 "In Holland there appears to be at present no Court of 
 Arbitration for ordinary trade disputes, but boards of a 
 very special nature have been formed for settling differ- 
 ences arising (1) in shipping business, (2) in general 
 average cases, (3) in salvage and collision cases. "^' In 
 Austria-Hungary for more than a century past arbitra- 
 tion as a means of settlement of disputes has been recog- 
 nized and encouraged and in 1868 "the right was granted 
 to the Chambers of Commerce and Industry ... to or- 
 ganise permanent Courts of Arbitration for the decision 
 of disputes arising out of commercial or industrial trans- 
 actions. Although there is no law compelling disputants 
 to apply to these courts in their disputes; still . . . the 
 vast proportion of commercial difficulties are so set- 
 tled."" 
 
 In the New York Public Library there appears an old 
 book (1779) by Champlair entitled L'And de la Concorde, 
 ou Essai, Par un Avocat au Parlement. (The Friend of 
 Peace. An Essay by an Advocate in Parliament.) The 
 frontispiece of the book is a very sharp and more or less 
 cynical criticism of the process of administering justice 
 in the courts. There appears the following: 
 
 "La Justice pesant ce droit litigieux 
 Demande I'Huitre, I'ouvre et I'avalle a leurs yeux, 
 Et par ce bel arret terminant la bataille, 
 Ten€s, voila, dit elle, a chacun une Ecaille 
 Des sotises d'Autrui nous vivpns au Palais 
 Messieurs I'Huitre etoit bonne, alles vives en paix.'"'' 
 
 This lawyer expresses the opinion that in legal con- 
 flict he himself had never been able to secure such com- 
 plete satisfaction in winning a law suit as he found in set- 
 
 "76«U, p. 525. 
 
 "Hid., p. 526. 
 
 ''Justice, weighing the rights of the litigants, demands the oyster 
 •which is the subject of controversy between them, opens it before 
 their eyes, swallows the contents, and delivers to each of the parties 
 
32 COMMERCIAL ARBITRATION 
 
 tling the controversy. "La gloire de gagner des proces 
 m'a toujours mains flatte que la douce satisfaction de les 
 prevenir, ou de les accommoder. J'ai remarque que de tous 
 les moyens que j'ai employes pour persuader a ceux qui 
 se sont adresse a moi, de preferer la conciliation ou I'ar- 
 hitrage, a ce qu'on appelle les voies de la Justice." ^* In the 
 first part of the book he presents in extenso the difficulties 
 of securing justice in the courts, and in the second part 
 points out how much more effectively, in many eases, 
 justice may be secured by arbitration. Another writer, 
 A, Charmolu, treats of La Justice Gratuite et Bapide par 
 I' Arbitrage Amiable (Speedy and Inexpensive Justice by 
 Peaceful Arbitration). This writer reviews the history of 
 arbitration in organized society from the earliest times 
 and concludes that it is an old and well-tried institution 
 and method for obtaining justice. He traces the history 
 of arbitration in France and points out that, as early 
 as 1363, ordinances were passed in Prance, and later in 
 1560, 1673 and 1681, facilitating the disposition of or- 
 dinary controversy "dans le cos de contestations entre 
 marchands et associes commerciaux, ainsi que pour les 
 demandes de portage et de comptes de tutelle." ^' This 
 writer informs us that on the 13th of July in each year 
 in the highlands of the Pyrenees, on the border line be- 
 tween France and Spain, the peasants come together and 
 dispose of all the controversies that have arisen during 
 the year, with the aid of the Alcalde of Isaba (a Spanish 
 
 an empty shell. "Behold," she says. "For each a shell. Upon, 
 the foUy of others we live in the palace. Gentlemen, the oyster was 
 good. Depart in peace." 
 
 " The glory of winning eases has always pleased me less than 
 the quiet satisfaction of preventing them or of settling them. I 
 have remarked that of all the methods that I have employed to 
 persuade those who have appealed to me, conciliation or arbitration 
 was preferable to those that one describes as the paths of justice. 
 
 ^"L'icrivam J earn, Larocque, en compulsant d'cmciens doownents, 
 a comptS jusqu'd treise juridictions appeUes d statuer dans une 
 affaire qui se plaida en France et fut abandonnie av. bout de cent 
 cinquante ans . . . foMte d'une solution possible." 
 
PUBLIC POLICY 33 
 
 official who acts as official arbitrator).^' The practice in 
 these cases is for the judge to listen to the tale' of both 
 parties and then pronounce judgment without delay and 
 without technicality, and he points out that since St. Louis 
 of Prance and Alphonse the Wise of Spain this practice 
 has continued and the native peasants observe the awards 
 made by the arbitrator with more faithfulness than they 
 abide by the decisions of the courts. Another French author, 
 writing on the subject of arbitration {Trait e General de 
 I'Ariitrdge en Matiere Civile et Commerciale by M. Gou- 
 beau de la Bilennerie) reviews the very early history of 
 arbitration in France and traces it back to its origins in 
 Rome. He shows how simple and complete were the dis- 
 positions of controversy from the time of Francis the Sec- 
 
 ""NiMs powrions citer, comme exemple, ce fait qui se renou- 
 velle chague annSe, le 13 juUlet dans le Mghland pyrSnSen. Ce 
 jour-la apr&s des oir&monies qui rSumssent leg paysans espagnols 
 et les habitants frangais de la valUe de Barretous, I'alca^ d'Isaba, 
 tel qu'accutmnaient les anciens rois de jadis, saint Loms de France 
 et Alphonse le sage d'Espagne, s'installe sur un sUge forme par 
 les racimes noiieuses d'un chene et se met d rend/re la justice. 
 Pasteurs et propriStaires de bestiaux frangais et espagnols arrivent 
 en grand nombre et exposent leurs litiges en quelques mots. 
 
 "Le juge ficoute avec attention les deux parties, interroge les 
 tSmoins et prononce le jugement sans d^lai, imposant h I'un une 
 amende, accordant k 1 'autre une indemnity, donnant d, celui-ci une 
 satisfaction, h, celni-l^ une punition, suivant les cas. 
 
 "Ces jugements inspirent aux rudes m,ontagn<i/rds plus de respect 
 que les dScisions de la Cow supreme, et tout le monde s'y soumet 
 sans murmurer. " 
 
 (We cpuld cite, as an example, the festival which is revived every 
 year on the 13th of July in the highlands of the Pyrenees. On that 
 day, after ceremonies which unite the Spanish peasants and the 
 French inhabitants of the Barretous vaUey, the alcalde of Isaba, 
 just as did the ancient Icings of former times, St. Louis of France 
 and Alphonso the Wise of Spain, presides upon a seat formed by the 
 knotty roots of an oak and proceeds to render justice. French and 
 Spanish farmers and herdsmen arrive in great numbers and present 
 their grievances in a few words. The judge listens attentively to the 
 two parties, interrogates the witnesses and pronounces judgment 
 without delay, imposing upon one a fine, upon the other an indem- 
 nity, giving to this one satisfaction, to the other punishment, aa 
 the case may be. These judgments inspire more respect in the 
 rude mountaineers than the decisions of the Supreme Court, and 
 everyone submits to them without grumbling.) 
 
34 COMMERCIAL ARBITRATION 
 
 ond (1560), and how from time to time the machinery was 
 improved upon. Another writer, F. Rigaud, in the Ency- 
 clopedie Scientifique des Aide-Memoire, treating of "Ex- 
 pertises et Arbitrages," says: " L'arbitrage a une portee 
 plus etendue: il a son origine dams la liberie fondamentale, 
 dans le droit de compromettre sur tous interets, droit ap- 
 partenant en principe a toute personne jouissant de sa 
 liberte entiere . . ." ''' 
 
 If America is to have international relations after the 
 war, it may be of no little value to point out at this time 
 that France, which elicits our warm admiration for its 
 respect of liberty and law, for many centuries harbored 
 the arbitration of mercantile disputes and treated the right 
 to resort to arbitration as a personal right — part of the 
 right of liberty itself. 
 
 Banister Fletcher, writing of ' ' Arbitrations, ' ' says : ' ' The 
 present might, I think, with great propriety, be termed 
 'the Age of Arbitration.' The recommendations of the 
 principle are such that we find it every day more gen- 
 erally adopted as the means of settlement of every class 
 of difference, from the 'burning questions' of international 
 importance, to the dispute as to the half-penny per hour, 
 more or less, in the wages of the artisan. ' ' ^^ This writer 
 confesses he cannot comprehend the rule that "neither at 
 law nor in equity could the fact that an arbitration was 
 pending be pleaded as a bar to an action or suit for the 
 same demand. "^° "Writing in his "Handbook of Aver- 
 age," Mauley Hopkins (1884) says that since there is 
 a claim made upon one policy in five, considering all 
 of the trades, "a constant recourse to law would be most 
 undesirable," and consequently there is a resort to ar- 
 bitration. He points out: "There is something quite 
 
 " Arbitration has a more extensive field ; it has its origin in 
 basic liberty, in the right to compromise all cases, a right belonging 
 in principle to each person enjoying complete liberty. 
 
 =«2nd Ed., p. 1. 
 
 "Ibid., p. 4. 
 
PUBLIC POLICY 35 
 
 consistent with friendly feeling in offering to leave to 
 another's decision the opposing views which two persons 
 entertain upon a difficult subject. And when," he says, 
 "it is borne in mind how seldom questions arising out of 
 the transactions we have been considering are pure and 
 simple, or resolve themselves into the mere form of 'yes' 
 or 'no,' but, on the other hand, how often small equitable 
 rights are found on both sides and accessory matters are 
 discovered, which have to be discussed pro and con, and 
 all bring in their weight, it is not wonderful that arbi- 
 tration has been a favorite resource, and has been a valu- 
 able reconciling medium between men of business. ' ' ^^ Thus, 
 in the insurance world, he finds it is a matter of habit 
 to leave matters to arbitration. 
 
 In Persia various questions of contracts, titles to land, 
 property, even questions of disputed wills, intestate suc- 
 cession, the boundaries or shares of land, recoveries of 
 debts in bankruptcy have for many centuries been sub- 
 mitted to arbitration. A mejilis, or informal council, is 
 convoked in the house of a mullah or leading citizen. Both 
 sides state their case. The documents are produced and 
 inspected and a decision is given. It is signed and regis- 
 tered by the Sheikh-el-Islam or the Imam-i-Jama (the Chief 
 Priest) and "with a little present to the jury all round, 
 the appellants conclude what is probably one of the cheap- 
 est and most effective forms of legal procedure in the 
 world. ' ' There is provision, however, for appeal. If either 
 party is dissatisfied with the sentence, he may appeal to 
 the local governor.'^ In Japan, during the Tokugawa 
 Bra (seventeenth century), arbitration and compromise be- 
 came the rule, litigation the exception. A dispute arising, 
 parties would submit it in the first instance to the members 
 of the "five-men group, or groups to which they belonged. 
 
 »»Pp. 526-527. 
 
 "See "Persia" by Hon. George N. Curzon, M. P., 1892. Vol. 
 I, pp. 455-6. 
 
36 COMMERCIAL ARBITRATION 
 
 These met in conclave, the disputants being present." To 
 promote a friendly spirit, food and wine would be served. 
 Rarely, if ever, did the judgment of the group fail to 
 satisfy the disputants or at any rate to placate them. 
 The custom goes back to the remotest times of antiquity.^^ 
 In "Miscellaneous Essays Relating to Indian Subjects," 
 B. H. Hodgson, F. B. S., gives us an account of the system 
 of Arbitration in the State of Nepal. "There are no per- 
 manent individual members of the Pamckdyet. ... In mat- 
 ters affecting persons who are neither Farbattias nor 
 Newdrs (different tribes), there is no restriction as to the 
 selection of the panch-men by the respective par- 
 ties. "'' "Persons who sit on Panchdyets are never paid 
 any sum, either as compensation for travelling expenses, 
 loss of time, or on any other account whatsoever. " ^^ "No 
 man can sit on a Panchdyet without the consent of both 
 parties."'* "With the exception of cases of life destroyed, 
 all matters may be referred to a Panchdyet, at the desire 
 of the parties . . ."»'". . . the judge (of the Sadr court) 
 takes from the parties an obligation to abide by the award 
 of the Panchdyet" and when given, it "is referred to the 
 court to be carried into effect. "'« "The value of entries 
 in merchants' books, and in general mercantile affairs, 
 are referred by the court to a Panchdyet of merchants." " 
 The Grecian law provided: "The public arbitrators . . . 
 were a body including all Athenian citizens in the sixtieth 
 year of their age. The arbitrator, on receiving the case 
 from the four representatives of the Forty, first endeav- 
 ored to bring the parties to an agreement. If this failed, 
 he heard the evidence and gave a decision. 
 
 ""Japan— Its History, Arts and Literature," by CaDtain F 
 Briukley. Vol. IV, pp. 102-4. ' ^"J^"*"" 
 
 "Sect. XII, Vol. II, p. 218. 
 "liid., p. 217i 
 " Ibid., p. 216. 
 "Ibid., p. 217. 
 '"Ibid., p. 227. 
 
PUBLIC POLICY STf! 
 
 "The Forty, who were appointed by lot, four for each 
 of the ten tribes, acted as sole judges in petty cases where 
 the damages claimed did not exceed ten drachmae. Claims 
 beyond that amount they handed over to the arbitrators 
 ... to a public arbitrator appointed by lot."^* Arbi- 
 tration exists also in the following countries: China,'' 
 Belgium, the Netherlands, Germany, Italy, Spain, Sweden 
 and Norway, and Portugal.*" 
 
 "In Scotland the words 'submission' and 'arbitration' 
 are synonymous. ' ' *^ And it has always been held in Scot- 
 land that a submission implies a contract and that, there- 
 fore, it is irrevocable except by consent of all of the parties 
 thereto.*'' Billing, an English writer, treating of the sub- 
 ject of the "Law of Awards" (1846), says: "Arbitration 
 when resorted to on proper occasions ... is of inestimable 
 value," quoting Denman, C. J., in Scott v. Van SamdeoM, 1 
 Q. B. 109a, 1 Adolphus & Ellis Reports (N. S.) 456, and 
 from Mr. Justice Coleridge.*' In Scotland an agreement to 
 refer future disputes is good even though the disputes or 
 
 " Bneyclopsedia Britannica, 11th Ed., Vol. XII, p. 504. 
 
 »»76id.. Vol. VI, p. 184. 
 
 *'IMd., Vol. II, p. 327. 
 
 ""The Law of Arbitration in Scotland," by Wood and Mao- 
 phail, p. 1. 
 
 "Ibid., p. 1; "Law of Arbitration," by J. Parker (1845), pp. 
 23-24. 
 
 "3 Bl. Com., p. 17, note 14, by Coleridge, J. "Excellent as 
 trial by jury undoubtedly is as a means of investigating the truth, 
 yet there are cases to which, for various reasons, it is not appli- 
 cable. Thus when long and complicated accounts are to be ex- 
 amined, it can hardly be expected that twelve men placed at 
 hazard in the jury-box should be able to determine very accurately 
 upon the allowance of particular items, or to strike a nice balance 
 between the contending demands. Again, it will often happen that 
 two persons lay claim to the whole of the same thing as a matter 
 of mere right, which, under proper regulations, might very well 
 suffice for both, and of which it might be ruinous to either to be 
 wholly deprived, as a stream of water, yet in such case the verdict 
 of the jury can only determine to whom the right belongs, it cannot 
 look to the consequences nor make a beneficial division of the use 
 between both. In this way (arbitration) the parties have the benefit 
 of a more deliberate investigation; if the matter be of a scientific 
 nature, or removed from the common information of men, they may 
 
38 COMMERCIAL ARBITRATION 
 
 differences which are to form the subject of the reference 
 are future or contingent.** Morse, writing "On Arbitra- 
 tion and Award," says: "The tendency among business 
 men to avoid the public tribunals and to settle their dis- 
 putes by arbitration before individuals of their own choos- 
 ing is growing stronger year by year. Not unnaturally they 
 feel that they can obtain a more intelligent and satisfac- 
 tory, as well as a more prompt, determination from eminent 
 lawyers or merchants whom they select, and in whom they 
 feel confidence, than they can venture to expect from an 
 average jury."*' 
 
 select some one to decide it whose habits have made him conversant 
 with it, and by investing him with more or less power, they may 
 have a decision more single and unbending than that of the law, 
 prospective in its operations, and limiting in detail the future exer- 
 cise of disputed rights." (This note cannot be found in the Ameri- 
 can editions, but is given as quoted by Billing, p. 16 and 17.) 
 
 "Irons and Melville: "Law of Arbitration in Scotland," p. 58, 
 citing MoCavi v. Monkland Bailway Co., 9 Sessions Cases, 1st Series 
 S22. 
 
 "Preface, p. iii. 
 
CHAPTER IV 
 
 THE JUDICIAL RULE OF STAEE DECISIS 
 
 CHAKtES Maceun once said: "The law is a sort of ho- 
 cus-pocus science, that smiles in yer face while it picks 
 yer pocket; and the glorious uncertainty of it is of mair 
 use to the professors than the justice of it." In his 
 preface to "The Compleat Arbitrator: or the Law of 
 Awards" (1770), Matthew Bacon wrote, "It is one of the 
 greatest Objections to our Laws, that the "Way to the 
 Knowledge of them is so dark and rugged, so full of 
 Windings and Turnings, that the most Knowing very often 
 find it difficult to be able to pronounce with Certainty, 
 concerning some Points they are soUicitous about." The 
 uncertainty in the law, as well as its expense, is the mer- 
 chant's dread. He wants to have his lawyer tell him the 
 law of the case with exactitude and definitiveness. To do 
 so, his lawyer reads the reports of the courts' decisions. 
 If there are conflicting, uncertain, unstable decisions, how 
 can he give his client exact or definite information upon 
 the state of the law? The law of the merchant must be 
 "staple" — as the old English statutes put it. This is 
 the raison d'etre of the rule of stare decisis, or, literally, 
 "to stand upon decisions." But it has been argued by good 
 lawyers that this duty to stand upon decisions requires 
 repetition of error, that reiteration of error makes truth. 
 Such sophistry brings ridicule and contempt upon the 
 law. 
 
 The modern tendency is for courts to correct judicial 
 error. In a recent article entitled "Judicial Correction 
 of Judicial Errors," Everett V, Abbot says — 
 
 39 
 
40 COMMERCIAL ARBITRATION 
 
 "Of all methods of correcting judicial errors, the ju- 
 dicial method is obviously the wisest, the most effective, 
 and the most just. The mere fact that there has been error 
 signifies that there has been injustice and the courts are 
 better fitted to cope with injustice than any other de- 
 partment of an organized state. Our courts should al- 
 ways be ready, therefore, to apply to their own errors 
 and injustices the judicial method of correction. A frank 
 acknowledgment that they can be, and are, on occasion, mis- 
 taken, and an open-minded reception of lawyer-like and 
 respectful arguments tending to point out errors, will not 
 in the slightest degree undermine their authority, or di- 
 minish the respect in which they are held. On the con- 
 trary, the more tolerant and approachable the court is, 
 the greater will be the popular confidence in its decisions. 
 In fact, the strongest bulwark which the courts can erect 
 against the recall and other insidious attacks upon our 
 judicial system will be found in the recognized practice 
 by the courts themselves of the principle that judicial 
 errors are to be judicially corrected." ^ 
 
 Lord Justice Bowen said: "There is and can be no 
 such thing as finality about the administration of the law. 
 It changes, it must change, it ought to change, with the 
 broadening wants and requirements of a growing country, 
 and with the gradual illumination of the public con- 
 science." ^ 
 
 "Cessanie ratione legis cessat ipsa lex." (Reason is the 
 soul of the law, and when the reason of any particular law 
 ceases, so does the law itself.) ^ 
 
 Lord Tenterden said: "The rule is founded on a prin- 
 
 ^Yale Law Journal, Vol. 26, No. 2, p. 104 (Dee. 1916). 
 
 ' ' ' Progress in the Administration of Justice during the Victorian 
 Period" — Charles Synge Christopher, Baron Bowen. "Select Es- 
 says in Anglo-American Legal History," Vol. I, p. 557. 
 
 'Broom's Legal Maxims (7th English Edition), p. 126. 
 
STARE DECISIS 41 
 
 ciple of public policy; and where the public policy ceases 
 to operate, the rule shall cease also."* 
 
 Mr. Justice Holmes, of the Supreme Court of the United 
 States, writing of "The Common Law," says: "The very 
 considerations which judges most rarely mention, and al- 
 ways with an apology, are the secret root from which the 
 law draws all the juices of life. I mean, of course, con- 
 siderations of what is expedient for the community con- 
 cerned. Every important principle which is developed by 
 litigation is in fact and at bottom the result of more or less 
 definitely understood views of public policy; most gen- 
 erally, to be sure, under our practice and traditions, the 
 unconscious result of instinctive preferences and inarticu- 
 late convictions, but none the less traceable to views of 
 public policy in the last analysis. And as the law is 
 administered by able and experienced men, who know 
 too much to sacrifice good sense to a syllogism, it will be 
 found that, when ancient rules maintain themselves in 
 the way that has been and will be shown in this book, 
 new reasons more fitted to the time have been found for 
 them, and that they gradually receive a new content, and 
 at last a new form, from the grounds to which they have 
 been transplanted."" And also: "The first requirement 
 of a sound body of law is, that it should correspond with 
 the actual feelings and demands of the community, 
 whether right or wrong. ' ' * 
 
 Kent, in his "Commentaries," said: "Considering the 
 influence of manners upon law, and the force of opinion, 
 which is silently and almost insensibly controlling the 
 course of business and the practice of the courts, it is im- 
 possible that the fabric of our jurisprudence should not 
 
 * Stone V. Marsh, 6 BameWall and Cresswell 551, at p. 564. 
 'Oliver Wendell Holmes, Jr., "The Common Law," p. 35-36. 
 'Ibid., p, 41. 
 
m COMMERCIAL ARBITRATION 
 
 exhibit deep traces of the progress of society, as well as 
 of the footsteps of time.'" 
 
 Mr. Justice Lurton of our United States Supreme Court, 
 speaking of the rigor with which the rule of stare decisis 
 is to be applied, said but recently: 
 
 "The Circuit Court of Appeals was obviously not bound 
 to follow its own prior decision. The rule of stare decisis, 
 though one tending to consistency and uniformity of de- 
 cision, is not inflexible. "Whether it shall be followed or 
 departed from is a question entirely within the discretion 
 of the court, which is again called upon to consider a 
 question once decided. ' ' ° 
 
 There are many instances where the highest courts in 
 our country have reversed themselves, without reserva- 
 tion. The two most historical examples are the Legal Ten- 
 der Cases * and the Income Tax Cases}" 
 
 "Within the past six months the United States Supreme 
 Court refused to follow the Dick case, decided only a few 
 years before (March 11, 1912)." 
 
 ShaU a precedent overrule all reason? Lord EUenbor- 
 ough said: "The question is, whether the plaintiff's dog 
 incurred the penalty of death for running after a hare 
 in another's ground? And if there be any precedent of 
 that sort, which outrages all reason and sense, it is of no 
 authority to govern other cases." '^^ 
 
 In The Genesee Chief v. Fitzhugh, 12 Howard 443, the 
 United States Supreme Court held that the admiralty juris- 
 diction of the United States Courts extended to navigable 
 
 'Kent's "Commentaries," 14th Edition, Vol. I, p. '479, 651. 
 
 'Sertz V. Woodman, 218 V. S. 205, at p. 212. Italics ours. 
 
 'Knox V. Lee, 12 Wall. 457, reversing Heplurn v. Griswold, 8 
 Wall. 603. 
 
 '"Pollock V. Farmers' Loan and Trust Co., 157 U. S. 429, re- 
 versing Springer v. United States, 102 V. S. 586, and Pacifio Insur- 
 ance Co. V. Soule, 7 Wall. 433. 
 
 '^Motion Picture Patents Co. v. Universal Film Mfq. Co., 243 
 U. S. 502. 
 
 "Vere v. Cawdor, 11 East's Eeports 568, at p. 570. Italics ours. 
 
STARE DECISIS 43 
 
 lakes and rivers connecting them and was not limited to 
 tide waters, reversing completely the Court's decision in 
 The Steam-Boat Thomas Jefferson, 10 "Wheaton 428 (1825). 
 Chief Justice Taney in the course of his opinion writes: 
 
 "It is the decision in the case of the Thomas Jefferson 
 which mainly embarrasses the court in the present in- 
 quiry. We are sensible of the great weight to which it is 
 entitled. But at the same time we are convinced that, if 
 we follow it, we follow an erroneous decision into which 
 the court fell, when the great importance of the question 
 as it now presents itself could not he foreseen; and the 
 subject did not therefore receive that deliberate considera- 
 tion which at this time would have been given to it by 
 the eminent men who presided here when that case was 
 decided. For the decision was made in 1825, when the 
 commerce on the rivers of the west and on the lakes was 
 in its infancy, and of little importance, and but little 
 regarded compared with that of the present day."^' 
 
 In a recent case in the New York Court of Appeals, the 
 Court upheld the constitutionality of the Bulk Sales 
 Law,^* unequivocally reversing its previous decision in 
 Wright v. Maxt}^ In the course of an opinion, with which 
 his colleagues unanimously concurred. Judge Cardozo said : 
 "We think it is our duty to hold that the decision in 
 Wright V. Hart is wrong. "^* Shortly prior to this de- 
 cision, the Court of Appeals wrote : " 
 
 "Lastly, it is urged that whatever might be our orig- 
 inal views concerning this statute, our decision in People 
 V. Williams (189 N. Y. 131) is an adjudication which 
 ought to bind us to the conclusion that it is unconstitu- 
 tional. While it may be that this argument is not without 
 
 "P. 456. Italics ours. 
 
 " L. 1909, eh. 45, § 44, as amended by L. 1914, ch. 507. 
 " 182 N. Y. 330. 
 
 ^ Klein v. Maravelas, 219 N. Y. 383. 
 
 " People V. Charles Schweinler Press, 214 N. Y. 395, at p. 410 and 
 412. Italics ours. 
 
44 COMMERCIAL ARBITRATION 
 
 an apparent and superficial foundation and ought to be 
 fairly met, I think that a full consideration of -the Wil- 
 liams case and of the present one will show that they 
 may be really and substantially differentiated and that 
 we should not be and are not committed by what was said 
 and decided in the former to the view that the legis- 
 lature had no power to adopt the present statute. 
 
 "The statute under consideration in the Williams case, 
 like the present one, prohibited night work by women 
 in factories, and while its provisions were somewhat more 
 drastic than those of the present one, it may be con- 
 ceded that these differences were of details and would not 
 serve to distinguish that statute from the present one in 
 respect of its constitutionality. But the facts on which 
 the former statute might rest as a health regulation and 
 the arguments made to us in behalf of its constitution- 
 ality were far different than those in the present case. . . . 
 
 "So, as it seems to me, in view of the incomplete 
 manner in which the important question underlying this 
 statute — ^the danger to women of night work in factories 
 — was presented to us in the WilUams case, we ought not 
 to regard its decision as any bar to a consideration of the 
 present statute in the light of all the facts and arguments 
 now presented to us and many of which are in addition 
 to those formerly presented, not only as a matter of mere 
 presentation, but because they have been developed by 
 study and investigation during the years which have in- 
 tervened since the Williams decision was made. There is 
 no reason why we should he reluctant to give effect to new 
 and additional knowledge upon such a subject as this even 
 if it did lead us to take a different view of such a vastly 
 important question as that of public health or disease than 
 formerly prevailed." 
 
 Judge Sewell, writing the opinion for the Appellate 
 Division of the Supreme Court for the Third Department 
 of New York State in Trombley & Carrier Co. v. Selig- 
 
STARE DECISIS 45 
 
 ma»/' which reversed a previous decision in the same 
 case said that although "When a question has been once 
 decided the same parties cannot be permitted to reopen 
 the discussion without great detriment to the public inter- 
 est, and destroying that respect for the decisions of courts 
 which it is important should be maintained," nevertheless, 
 "There is no iron rule which precludes a court from 
 correcting a manifest error in its former judgment or 
 which requires it to adhere to an erroneous view of the 
 facts or the law" and though the Court says: "the cases 
 in which this will be done are exceptional and the power 
 should be sparingly exercised," it holds that "It may 
 for cogent reasons, reverse or qualify a prior decision, 
 even in the same case."^* 
 
 Judge Page, speaking for the Appellate Division of 
 the First Department in Eharas v. ColUer, Inc.,'''' reverses 
 the decision in Eichner v. Bowery Bank ^^ and says that 
 the old rule that a corporation was not liable for slan- 
 der was "based upon the archaic doctrine that a corpora- 
 tion was an artificial being, invisible, intangible, and ex- 
 isting only in the contemplation of the law" and since 
 "This doctrine has long since been repudiated by the 
 courts" the former decision {Eichner v. Bowery Bank) 
 "holding the contrary should be overruled." ^^ 
 
 As this manuscript is going to the printer, the United 
 States Supreme Court admonishes the Bar "that the dead 
 hand of the common-law rule of 1789 should no longer be 
 applied to such cases as we have here," and that the ques- 
 tion then before it must be examined "in the light of 
 general authority and of sound reason." ^* 
 
 " 133 App. Div. 525. 
 "Italics ours. 
 »171 App. Div. 388. 
 " 24 App. Div. 63. 
 ™ Italics ours. 
 
 "See Bosen v. United States, Pdkas v. United States. (United 
 States Supreme Court Advance Opinions, Feb. 1, 1918, No. 5.) In 
 
46 COMMERCIAL ARBITRATION 
 
 In Oovld V. The Hudson Biver Bailroad Co., 6 N. T. 
 522 (1852), the Court of Appeals held that the owner 
 of lands adjoining a navigable river, in which the tide 
 
 this case, the Court holds that a previous conviction of forgery does 
 not disqualify the person convicted from testifying on behalf of 
 the Government in a criminal trial in a Federal court. In United 
 States V. Beid (12 How. 361, 13 I>. ed. 1023), decided in 1851, it 
 had been held by the United States Supreme Court that the in- 
 competency of witnesses in criminal trials in the Federal courts must 
 be determined by the rules of evidence which were in force in the 
 respective States when the Judiciary Act of 1789 was passed, and 
 in the Eosen and Pakas cases it was argued that, as it appeared by 
 the common law as administered in New York that a person found 
 guilty of forgery and sentenced was thereby rendered incompetent 
 as a witness until pardoned, the testimony of Broder, a witness in 
 the case who had in fact been found guilty of forgery in the State 
 court, was improperly received. The Court finds that the decision 
 in United States v. Eeid had never been specifically overruled, 
 though its authority "must be regarded as seriously shaken by the 
 decisions in Logan v. United States, 144 U. S. 263-301, 36 L. ed. 
 429-442, 12 Sup. Ct. Eep. 617, and in Benson v. United States, 146 
 U. S. 325, 36 L. ed. 991, 13 Sup. Ct. B«p. 60." The Court says: 
 "In the almost twenty years which have elapsed since the decision 
 of the Benson Case, the disposition of courts and of legislative bodies 
 to remove disabilities from witnesses has continued, as that decision 
 shows it had been going forward before, under dominance of the 
 conviction of our time that the truth is more likely to be arrived 
 at by hearing the testimony of all persons of competent understand- 
 ing who may seem to have knowledge of the facts involved in a case, 
 leaving the credit and weight of such testimony to be determined 
 by the jury or by the court, rather than by rejecting witnesses as in- 
 competent; with the result that this principle has come to be widely, 
 almost universally, accepted in this country and in Great Britain. 
 
 "Since the decision in the Benson Case we have significant evi- 
 dence of the trend of congressional opinion upon this subject in the 
 removal of the disability of witnesses convicted of perjury (Rev. 
 Stat. § 5392, Comp. Stat. 1916, § 10,295) by the enactment of the 
 Federal Criminal Code in 1909 [35 Stat, at L. 1088, chap. 321, Comp. 
 Stat. 1916, § 10,165] with this provision omitted and § 5392 repealed. 
 This is significant, because the disability to testify, of persons con- 
 victed of perjury, survived in some jurisdictions much longer than 
 many of the other common-law disabilities, for the reason that, the 
 offense concerns directly the giving of testimony in a court of justice, 
 and conviction of it was accepted as showing a greater disregard for 
 the truth than it was thought should be implied from a conviction 
 of other crime." It is because the Court is "satisfied . . . that 
 the legislation and the very great weight of judicial authority which 
 have developed in support of this modem rule," that it concludes 
 "that the dead hand of the common-law rule of 1789 should no 
 longer be applied" and, accordingly, reverses the ruling of the lower 
 courts. 
 
STARE DECISIS 47 
 
 ebbs and flows, has no private right or property in the 
 waters of the river, or in the shore between high and 
 low water mark, and was therefore not entitled to com- 
 pensation from a railroad company, which constructed, 
 in pursuance of a grant from the legislature, a railroad 
 along the shore between the high and low water mark, 
 so as to cut off all communication between such land and 
 the river otherwise than across such roads. In Eumsey 
 V. N. T. & N. E. B. B. Co., 133 N. Y. 79 (1892) the Court 
 of Appeals unanimously reversed itself. Judge Denis 
 O'Brien saying,^* "It is no doubt true that even a single 
 adjudication of this court, upon a question properly be- 
 fore it, is not to be questioned or disregarded except for 
 the most cogent reasons, and then only in a case where 
 it is plain that the judgment was the result of a mistaken 
 view of the condition of the law applicable to the ques- 
 tion. But the doctrine of stare decisis, like almost every 
 other legal rule, is not without its exceptions. It does not 
 apply to a case where it can be shown that the law has 
 been misunderstood or misapplied, or where the former 
 determination is evidently contrary to reason. The au- 
 thorities are abundant to show that in such cases it is 
 the duty of courts to re-examine the question. Chancellor 
 Kent, commenting upon the rule of stare decisis, said that 
 more than a thousand cases could then be pointed out, in the 
 English and American reports, which had been overruled, 
 doubted or limited in their application. He added that 
 'it is probable that the records of many of the courts of 
 this country are replete with hasty and crude decisions; 
 and in such cases ought to be examined without fear, and 
 revised without reluctance, rather than to have the char- 
 acter of our law impaired, and the beauty and harmony 
 of the system destroyed by the perpetuity of error.' " ^° 
 
 "At p. 85. 
 
 "1 Kent's "Commentaries" (13 Ed.) 477; Broom's Legal Max- 
 ims, p. 153; Gifford v. Livingston, 2 Denio 392; Morse v. Goold, 11 
 N. Y.> 881; JuOson v. Gray, id. 408. 
 
48 COMMERCIAL ARBITRATION 
 
 In Isaacs v. Third Avenue Baalroad Co., 47 N. Y. 122 
 (1871), the Court of Appeals had held that a carrier was 
 not liable for a willful assault by a conductor upon one 
 of its passengers; but in Stewa/rt v. Brooklyn amd Gross- 
 town Bailroad Co., 90 N. Y. 588 (1882), the Court of 
 Appeals reversed itself and held just the contrary. In 
 his opinion Judge Benjamin F. Tracy said : ** 
 
 "To sustain the judgment in this case the counsel for 
 the appellant cites and relies upon the case of Isaacs v. 
 The Third Avenue B. B. Co. (47 N. Y. 122; 7 Am. Rep. 
 418). That case was discussed by counsel and determined 
 by this court upon the assumption that the rule of the 
 master's liability for the assault of a servant committed 
 upon a person to whom the master owed no duty was ap- 
 plicable to that case. The mind of the court was not 
 called to the fact that the rule applicable to such a case 
 does not apply to the case of an assault committed upon 
 a passenger by a servant intrusted with the execution of a 
 contract of a common carrier." 
 
 In Meeker v. Wright, 76 N. Y. 262 (1879), the Court 
 of Appeals held that upon a conveyance to husband and 
 wife they held as tenants in common and not as tenants 
 by the entirety; and in Bertles v. Nunan, 92 N. Y. 152 
 (1883) the Court reversed the rule and held that such a 
 conveyance created a tenancy by the entirety. The Meeker 
 case was cited to the Court, and in referring to it 
 Judge Robert Earl in his opinion said:^^ "In that 
 case the learned judge writing the opinion reached the 
 conclusion that the common-law rule governing convey- 
 ances to husband and wife had been abrogated by the 
 modern legislation in this State. But that portion of 
 the opinion was not concurred in by a majority of the 
 judges. The views of that judge were very forcibly and 
 ably expressed, and they have been carefully reconsidered. 
 
 "At p. 594. 
 "At p. 162. 
 
STARE DECISIS 49 
 
 They do not convince us that the conclusions he reached 
 should be adopted hy this court." 
 
 In Thurston v. Fritz, 91 Kansas 468, the Kansas Supreme 
 Court reversed State v. BoJian, 15 Kansas 407 and all 
 previous decisions and held the rule that dying declara- 
 tions are admissible only in criminal cases is without rea- 
 sonable basis and should not longer be followed. The 
 Court said : ^* 
 
 "We are confronted with a restrictive rule of evidence 
 commendable only for its age, its respectability resting 
 solely upon a habit of judicial recognition, formed with- 
 out reason and continued without justification. The fact 
 that the reason for a given rule perished long ago is no 
 just excuse for refusing now to declare the rule itself 
 abrogated, but rather the greater justification for so de- 
 claring; and if no reason ever existed, that fact furnishes 
 additional justification." 
 
 Samuel B. Clarke, former partner of ex-Senator Root, 
 has written trenchantly upon this subject of "How may 
 judges, practising lawyers and teachers of law be made 
 to see the vice of the illicit preconception and stare decisis 
 habits and their duty to take thought and fortify their 
 wills for its correction?" In a series of pamphlets dis- 
 tributed among some members of the Bar and which are 
 to be found at the library of the Association of the Bar 
 of the City of New York, he says : "In this Nation it is 
 illegal as well as highly immoral doctrine which says 
 to the judges of our courts: 'Stick to your decisions 
 whether right or wrong. Be blind to your errors. If the 
 people do not like your decisions let them amend their con- 
 stitutions and statutes.' " He points out that just as 
 "During the Nineteenth Century physicists shook off the 
 stare decisis habit and approached the problems of med- 
 icine and surgery and mechanics and other physical science 
 
 "At p. 475, Italics ours. 
 
50 COMMERCIAL ARBITRATION 
 
 with unfettered minds" with such good result to man- 
 kind, it is now "time for lawyers and judges to take 
 thought and exert their wills in order to rid themselves 
 of the same bad habit." 
 
 Another writer, Robert Sprague Hall, in the "Illinois 
 Law Review," for May, 1917,^° on "Law and Logic: A 
 Study in Applied Law," pleads for the stimulation of 
 inquiry into the actual basis of reason that underlies the 
 decisions of our courts and for "a thorough study of such 
 cases and an application of their methods to the analysis of 
 cases whose decisions have proved unsatisfactory to compe- 
 tent and fair-minded lawyers," and contends that "The 
 popular demand" of the day "is that courts should be 
 abreast of the social and business world in which they play 
 so important a part. In the general tendency of our day to 
 demand the reason of things, to go to the bottom of them, 
 the methods of our judicial tribunals can not forever es- 
 cape the searchlight of criticism." The process which he 
 invokes is the examination of "rules of law in the light 
 of a broader notion of human rights," from which ex- 
 amination "it will be found that some of the rules ought 
 never to have been made, or have long outlived their use- 
 fulness, while others require the limitations arising from 
 giving effect to still other rules, as worthy as they of 
 consideration." The judges, he says, "intelligent and en- 
 lightened men" though they be, and "ready to admin- 
 ister the law as justly as may be in their power," never- 
 theless "find their hands tied by traditions which they 
 dare not ignore" and "need leaders, judges brave enough 
 to disregard traditions which they are clear-headed enough 
 to see to be obstructive to justice, and who are also capable 
 of showing by convincing reasons that the traditions must 
 be cast aside." 
 
 Bartley, Ch. J., in Leamitt and Lee v. Morrow, 6 Ohio St. 
 71, at p. 78, says: "Precedents are to be regarded as the 
 
 "Vol. XII, No. 1, p. 14. 
 
STARE DECISIS 51 
 
 great storehouse of experience; not cHwaiys to le followed, 
 but to be looked to as beacon lights in the progress of 
 judicial investigation, which, although, at times, they may 
 be liable to conduct us to the paths of error, yet, may be 
 important aids in lighting our footsteps in the road to 
 truth.'"" 
 
 In succeeding chapters we shall trace the birth and 
 growth of a rule in the law that has been variously de- 
 scribed by great judges in England and in America as 
 "inveterate error" — "an absurdity in the law" — ^"without 
 reason" — "an anomaly in the law" — "an irrational state 
 of the law." Mistakes in the law due to conditions long 
 since changed have been corrected. Many younger errors 
 of the kind have long ago been corrected and consigned 
 to the limbo of judicial curiosities. This one, hoary with 
 three centuries of age, still survives. A recent newspaper 
 report told of an old lady who found a needle which she 
 had swallowed when a child. Not long ago she felt a 
 twinge, put her hand to her shoulder, and pricked her 
 finger upon the needle. It had been voyiaging about in 
 the old lady's system for fifty years, and now came to 
 the surface to remind her of its presence. Her husband 
 pulled it out with a pair of tweezers. The doctrine we 
 are about to study is the needle in the common law of 
 arbitration. By inadvertence, the doctrine of revocabiUty 
 was swallowed three hundred years ago. It has lingered 
 in the system, and modern conditions bring it to the 
 surface to prick our fingers. It could be extracted with 
 little pain, with no harm to the body of the common law, 
 and with a tonic effect upon business. It has lingered only 
 by reason of the doctrine of stare decisis. 
 
 The late Mr. Charles F. Southmayd, in arguing before 
 our Court of Appeals in 1872,^^ said that "if at any time 
 tuithin the last fifty years (1822-1872) the question would 
 
 "Italica ours. 
 "iSee post, p. 232. 
 
52 COMMERCIAL ARBITRATION 
 
 ha/ve been presented as a new one to the courts, no such 
 doctrine would tuwe heen established." Even then it was, 
 as he said, "upheld purely on the principle of stare 
 
 Only recently Judge Hough, now a member of the Fed- 
 eral Circuit Court of Appeals for the Second District, 
 found it difBcult to accept the doctrine, so examined into 
 it with some care. He, like Mr. Southmayd, could find 
 nothing save stare decisis to support it. But as it had 
 been approved by the United States Supreme Court, it 
 could be changed, so he said, only by that Court's action. 
 The rule, said he, "must be obeyed . . . even though in- 
 ferior courts fail to find convincing reasons for it." 
 
 The rule lacks aU support in reason, especially in the 
 light of present-day facts; what if it lack support in au- 
 thority — if the courts err in believing that they correctly 
 stand upon precedent? Suppose lawyer after lawyer and 
 judge after judge followed what, upon closer scrutiny, 
 proves to be no authority; suppose in the country from 
 which we took the "precedent" it long ago lost its binding 
 weight and authority; shall we then decline the task of 
 correcting this error in our law? Does repetition of error 
 make it truth? 
 
PART TWO— THE DOCTRINE OF RE- 
 VOCABILITY: A JUDICIAL ERROR 
 
 CHAPTER V 
 ANALYSIS OP THE ENGLISH AUTHOEITIES 
 
 The earliest readily obtainable book on the subject of 
 arbitration is March on "Actions for Slander and Arbitre- 
 ments," written by J. 0. March, of Gray's Inn, Barrister, 
 in 1648. In his discussion of the question^ "whether the 
 authority of arbitrators be countermandable or not," 
 March relies upon certaia Year Book cases and upon 
 Brooke's Abridgment, which had appeared in Law French, 
 described by Professor Maitland* as "a debased jargon," 
 seventy-five years earlier, under the ominous and discour- 
 aging title: La Graunde Abridgement, Collect & escrie 
 per le Judge tres reuerend Syr Robert Brooke ChivaUer, 
 nadgairs chief e Justice del comon hanke. 
 
 March's views will bear close examination, for their reve- 
 lation of the early attitude toward commercial arbitra- 
 tion: "In this case also the Law wiU be strong and evi- 
 dent, that this authority is countermandable at any time 
 before the Award made; but not after: because then the 
 Authority is executed, and cannot be countermanded, and 
 so are all our Books, but 5 E. 4, where it is said. That 
 if a man be bound to stand to the Arbitrement of J. N. 
 he cannot discharge the Arbitrator; contrary if he were 
 not bound to stand to his Arbitrement: yet Brook upon 
 
 'March: "Actions on Slander and Arbitrements," p. 164. 
 'Introduction to the Tear Books of Edward II, p. zzzlii, edited 
 for the Selden Society by F. W. Maitland. 
 
 53 
 
'54 COMMERCIAL ARBITRATION 
 
 this Case saith, That it is clear that he may discharge the 
 Arbiirator in both cases; but in the one case he shall for- 
 feit his Bond, in the other he shall lose nothing, because 
 ex nuda subndssione non oritur actio; so likewise it is 
 resolved in Vinyors Case, which I shall put you presently. 
 
 "In 28 H. 6 6 by Ashton, Justice, If there be two Plain- 
 tii3fs, and one Defendant ; or two Defendants and one Plain- 
 tiff, put themselves to the award of others, neither the one 
 Plaintiff without the other, nor the one Defendant with- 
 out the other, may discharge the Ariitrator; the reason 
 is obvious, because that they were chosen by the joynt 
 authority of both, and therefore cannot be countermanded 
 by one alone. 
 
 "But that which is the last and best authority, is 
 Vinyors Case ; where it is resolved, That though a man be 
 bound to stand to the Arbitrement, etc., yet he may coun- 
 termand the Arbitrators; the reason that is given is, be- 
 cause a man cannot by his own act make such an au- 
 thority, power or warrant; not countermandable, which 
 by the Law and its own proper nature is countermandable : 
 as if I make a Letter of Attorney to make Livery, or to 
 sue an Action in my name, or if I assign Auditors to take 
 an account, or if I make one my Factor, or submit my self 
 to an Arbitrement, though that these are done by express 
 words irrevocable, or that I grant, or am bound that all 
 these shall stand irrevocable, yet they may be revoked; 
 so if I make my Testament or last "Will irrevocable, yet 
 I may revoke it. 
 
 "But in this case it was further resolved. That by the 
 countermand or revocation of the power of the Arbitrator, 
 the Bond (according to the Opinion of Brook before 
 cited) is forfeited, because he was bound to stand to his 
 award, which he doth not do when he discharges the Ar- 
 bitrator. I have sufficiently cleared it. That the au- 
 thority of Arbitrators is countermandable. ' ' * 
 • March : ' 'Actions on Slander and Arbitrements, ' ' pp. 164-166. 
 
ENGLISH AUTHORITIES 65 
 
 We shall study Vynior's Case separately.* For the pres- 
 ent let us consider March. It will be ohserved at the 
 outset that nothing is said by this early writer to indicate 
 that agreements such as we are considering are against 
 public policy. Whether at this date judges were influenced 
 by the consideration of the fees of their office to draw 
 litigation to themselves (see discussion of this subject, 
 post p. 253 et seq.), it would nevertheless appear that when 
 March wrote (1648) they were not influenced by such con- 
 siderations. On the contrary, March himself says, speak- 
 ing of arbitrators and their power, "An Arbitrator is, as 
 our Books say, a Judge, indifferently chosen by the parties, 
 to end the matter in eontroversie between them, ad Arbitri- 
 um, and therefore they are said to be Arbitrators, because 
 they have an Arbitrary power, and may judge according 
 to their will and pleasure, so that their Judgment be ac- 
 cording to the submission; and these Judges are not tied 
 to any formalities, or punctualities in Law, neither are they 
 sworn, as other Judges established by publike authority 
 are. 
 
 "Besides, their Power is far greater, for as they may 
 judge as they please, keeping themselves to the Submis- 
 sion, so their sentences are absolutely definitive and con- 
 clusive, from which there lies no Appeal; as it was ex- 
 cellently well said by Heath, Justice, in arguing of the 
 Case of Budston and Yates, cited before (Mich. 17 Car. in 
 the King's Bench) the Judgment of Arbitrators, said he 
 (provided that they keep themselves to their Jurisdic- 
 tion) is higher than any Judgment given in any Court; 
 for if they erre, no Writ of Error lies to reverse their 
 Judgment, no, not so much as Equity against them. ' ' "* We 
 find, then, that at this time the courts respected arbitra- 
 tion when it was actually had. Indeed, in discussing this 
 very topic of the countermandability of the authority of 
 
 * See post, p. 84 et seq. 
 "March, p. 160-161. 
 
56 COMMERCIAL ARBITRATION 
 
 arbitrators, we find that March discourses upon the effect 
 of a revocation without deed and finds that where the 
 authority is "by deed, in such case I conceive the author- 
 ity cannot be countermanded but by deed and so is 49 
 E. 3. 9. but where it is without deed, there the authority 
 may be countermanded without deed; and this I ground 
 upon that Rule of Law, eodem modo quo quid creatv/r 
 dissolvitur. It is but agreeable to natural equity, That 
 every thing should be dissolved by the same means 
 or power that it was created."' Thus we see that if he 
 who desires to revoke, where the submission is by deed, 
 fails to revoke by deed, the submission is good and, in 
 consequence, the arbitrament is good. So, also, March dis- 
 cusses "whether there ought to be notice of the counter- 
 mand, or not"' and after a discussion of all of the pre- 
 ceding cases he finds that "It was resolved, That without 
 notice, it is not revocation of the authority ; and therefore 
 if there were no notice in this case (saith the Book) the 
 Defendant ought to have taken issue, quod rum revocavit, 
 etc., and if there were no notice, it shall be found for the 
 Defendant."' 
 
 It is already apparent that in March's time the courts 
 engaged in the strict and artificial reasoning of the 
 period, reverently drawing conclusions from assumed 
 premises, in accordance with the rules of logic, and 
 acted upon these conclusions, however absurd the conse- 
 quences. Now, coming to the basis for the statement that 
 the authority of an arbitrator is countermandable, the 
 reason given by March is "because a man cannot by his 
 own act make such an authority, power or warrant; not 
 countermandable, which by the Law and its own proper 
 nature is countermandable,"^ and he draws an analogy 
 
 "March, p. 166. 
 'J6t<?., p. 167. 
 'Ibid., pp. 167 and 168. 
 'Ibid., p. 165. 
 
ENGLISH AUTHORITIES 57 
 
 from the authority of a factor, or the making of a last 
 will and testament, or a letter of attorney to make livery 
 or to sue an action in a principal's name. Obviously, the 
 use of the words "authorize and empower" contained in 
 the formal deed designating the arbitrator led the judges 
 to think of the arbitrator as an agent, for otherwise the 
 "authority, power or warrant" would not at that time 
 have been by "its own proper nature" countermandable. 
 Now, it is a very curious thing that but a few pages 
 anterior to this statement by March, in discussing the na- 
 ture of an arbitrator, he says:^° "But I do not find in our 
 Law, that either legal or natural disabilities, do hinder 
 any man from being an Arbitrator, or avoid his sentence, 
 and certainly they do not; for this differs much from 
 the submission to an Arbitration, for in such case, a 
 man ties his interest, and binds his person, which every- 
 one is not of capacity to do ; but in this case what he doth 
 as arbitrator, is onely to charge or discharge others. And 
 besides, they are chosen by the parties themselves, and 
 if they be not competent Judges, the fault is theirs that 
 chose them."^^ As we have seen from previous discus- 
 sion, the arbitrator is in no sense to regard himself as an 
 agent. He may be a mediator or even a judge, but he is 
 not an agent. It is this fundamental error of reasoning 
 to which Judge Maule later referred as "inveterate er- 
 ror." 
 
 In 1844, the Supreme Court of Tennessee made this 
 point very clear." "It has been argued," said Judge 
 Turley, speaking for the Court, "that the award having 
 been reduced to writing and signed by the arbitrators, it 
 is to be considered as a settled account signed by the par- 
 ties, the arbitrators being their agents for that purpose. 
 We do not think so. An arbitrator is not an agent; he 
 
 «IMd., pp. 159-160. 
 
 "Italics ours. 
 
 "Collma V. Oliver, 4 Humph. (Tenn.) 439, at p. 440. 
 
68 COMMERCIAL ARBITRATION 
 
 is not acting for and in the stead of the party selecting 
 him, whose interest it is his bounden duty to protect, but 
 as a person vested with power by the law to examine 
 and determine the matters in controversy, which have 
 been submitted to him, and whose imperative duty it is 
 to do equal justice to the parties disputant; his duties 
 are more of a judicial than a fiduciary character, and his 
 determination partakes more of the nature of a judgment 
 against, than a contract on the part of the person to be 
 charged; and therefore, where the award has been made 
 in good faith, and in accordance to the forms required, it 
 is binding and conclusive upon the parties; and it has to 
 be sued upon only, because an arbitrator is not vested 
 with power to enforce his decrees by execution, which is 
 the end of the law." 
 
 Bell tells us^' that the submission in Scotland was not 
 held revocable at the will of either party singly, but that 
 it might be done only by the concurrence of the parties. 
 His reasoning is pertinent here: "Being a mutual and 
 onerous contract, and the object of it being to obtain a 
 binding and final decision, which must, in the great ma- 
 jority of instances, occasion much disappointment to one 
 at least of the parties, it is difficult to understand how it 
 should ever have been regarded in any country as con- 
 tinuing revocable at the pleasure of either party up to 
 the date of the award. This seems, on the contrary, to be 
 incompatible with the fair or beneficial working of the 
 system of arbitration." Bell (who is the great Scotch 
 authority on the law of arbitration) says: "Apparently, 
 therefore, no men could (under English law) even by the 
 most express words and formal deed, make an irrevocable 
 agreement to authorize their own selected arbiter to decide 
 for them. It is impossible to avoid suspecting that such 
 a doctrine must be rested upon some subtlety, of a char- 
 
 ""Law of Arbitration in Scotland," 1877. 2nd Edition, pp. 
 28, 29. 
 
ENGLISH AUTHORITIES 59 
 
 acter too refined for common use."'^* Or, to quote from 
 Lord Cranworth, Chancellor, in Drew v. Drew,^^ this fea- 
 ture of the English law of arbitration by which parties 
 might revoke an agreement to arbitrate "was an incon- 
 vement, and, I think I may be allowed to say, an irrational 
 state of the law. ... I say that was an absurd state of 
 the law. ..." 
 
 Before proceeding further in our analysis of the text 
 writers of the time and the early English authorities prior 
 to Vymior's Case, it may be of value to recreate something 
 of the environment in which these decisions were made, 
 and for the purposes of so treating the matter we shall 
 conveniently discuss it under two headings : 
 
 1. The slow emergence of legal concepts of contractual 
 obligations. 
 
 2. The conflict between the Law Merchant and the 
 Common Law. 
 
 "76mJ., p. 29. Italics ours. 
 
 ^2 Macqueeu's Cases on Appeal, pp. 3, 4 (Scotch, 1855). Italics 
 
 OUTS. 
 
CHAPTER VI 
 
 THE SLOW EMEEGENOE OP LEGAL CONCEPTS OP 
 CONTEACTUAL OBLIGATIONS ^ 
 
 In the early English law, before the Norman Conquest, 
 Pollock and Maitland tell us, the law of contracts holds 
 anything "but a conspicuous place among the institu- 
 tions of English law."^ It was of the most rudimentary 
 form. "Many centuries must pass away before it wins 
 that dominance which we at the present day concede to 
 it. " ' And again : ' ' Even in the schemes of Hale and 
 Blaekstone it appears as a mere supplement to the law of 
 property."* The most fundamental rules of contract, fa- 
 miliar to modern lawyers and hardly requiring any ex- 
 planation, "perished in the general breaking up of the 
 Roman system, and had to be painfully reconstructed in 
 the middle ages. ' ' ' The written document was slow in 
 presenting itself as a validating form for transactions. 
 Though, according to the Lex Bomana, "anyone who con- 
 travenes or will not perform a written agreement is in- ■ 
 famous and to be punished. " ° In the early English law 
 the written document, "which few have the art to man- 
 ufacture, is regarded with mystical awe ; it takes its place 
 beside the festuca . . . setting one's hand to it is a stipu^ 
 
 'For most of the statements (except as otherwise mentioned) 
 under this point, we are indebted to Pollock and Maitland 's "His- 
 tory of the English Law," Vol. II, p. 182, and to Page on Con- 
 tracts, Vol. I, Chapter I, "History of the Law of Contract." 
 
 'Pollock and Maitland, Vol. II, p. 182. 
 
 'lUd. 
 
 *Ihid. 
 
 ' Ibid., Vol. II, pp. 182-183. 
 
 'Hid., Vol. II, p. 190. 
 
 60 
 
CONTRACTUAL OBLIGATIONS 61 
 
 latio; it is delivered over as a symbol along witli twig 
 and turf and glove ... it is chiefly used as a means of 
 creating or transferring rights in land by way of gift, 
 sale, lease or gage; it is rarely used for the pwpose of 
 creating or attesting the creation of purely personal 
 rights." ' The Lombard merchants, familiar in Italy with 
 carefully worded documents, found it difficult to under- 
 stand why contracts so familiar under Roman law should 
 not be enforcible under English law. At the time of Al- 
 fred's laws "writing has hardly been used for any legal 
 purpose except when land is to be conveyed or a last will 
 is to be made."* Indeed, there is no sure ground earlier 
 than Glanvill's book, and Glanvill reminds us that in 
 the twelfth isentury two new forces are beginning to play 
 upon the law of contract. The classical Roman law is being 
 slowly disinterred and the canon law is taking shape. 
 "Glanvill knows a little, Bracton knows much more about 
 both." * Soon in Glanvill's writing there begins to emerge, 
 as appears from the records of the court, a special form 
 of writ for formal written instruments, known as the writ 
 of covenant, examples of which are given by Pollock and 
 Maitland as of the dates of 1194 A. D. and 1201 A. D.» It 
 is only during the century following Glanvill that the ac- 
 tion of covenant became formally established as a means 
 of enforcing formal contracts.^' By the reign of Edward I. 
 it was settled that a sealed instrument was necessary to 
 prove a covenant. Accordingly, the action of covenant 
 became restricted to the sealed contract, and for several 
 centuries covenant and deit were mutually exclusive. Not 
 until the seventeenth century could either debt or covenant 
 be brought where a fixed and liquidated sum of money was 
 owing under a sealed contract.*^ Since at Common Law 
 
 ' Ibid., Vol. II, pp. 190-191. ItaUcs ours. 
 
 'Ibid., Vol. II, p. 191. 
 
 •Page, Vol. I, p. 11. 
 
 "Pollock and Maitland, Vol. II, p. 214. 
 
 "/6id, Vol II, p. 217. 
 
62 COMMERCIAL ARBITRATION 
 
 a contract could only be enforced by means of a writ, 
 Common Law courts, accordingly, during the twelfth and 
 the greater part of the thirteenth century recognized and 
 enforced only two classes of contracts — those under seal, 
 and those resulting in a fixed and liquidated indebtedness. 
 "For the numerous and varied contracts of other classes, no 
 remedy vms given, and under our view of what law is, 
 we may say that no such right was recognized hy the courts 
 of the king."'^' It was during the latter part of the 
 twelfth and the early part of the thirteenth century that 
 the Common Law courts began to arrest the natural de- 
 velopment of the Common Law by refusing to allow new 
 writs to be framed for the purpose of meeting new cases as 
 they arose. Page observes ^^ that this is a tendency char- 
 acteristic of all legal systems of primitive type and that in a 
 nation which is progressing in its social and economic 
 development there is an inevitable and irrepressible con- 
 flict between legal theories and the facts of life. "A na- 
 tion thoroughly alive will not remain fettered by a rigid 
 system of law based on an obsolete theory of society." At 
 this time began the English custom of finding relief from 
 such situations through the legislature. The statute in 
 consimdli casu introduced a legal reform originating with 
 King Edward I. Its adoption by Parliament was due to his 
 initiative. It is the Statute 13 Edw. I, Chapter 24, passed 
 in 1284 A. D. and known as the Statute of "Westminster 
 Second because of the place wherein Parliament convened 
 at the time of its passage. The name in consimili casu owes 
 its origin to the characteristic words of one of the sec- 
 tions of the statute. This section provides that "When- 
 soever from henceforth it shall fortune in chancery that in 
 one case a writ is found, and in like case falling under 
 like law and requiring like remedy is found none, the 
 
 "Page, Vol. I, pp. 12-13; Pollock and Maitland, Vol. II, pp. 209- 
 210. 
 
 e, Vol. I, p. 13. 
 
CONTRACTUAL OBLIGATIONS 63 
 
 clerks of chancery shall agree in making the writ; or 
 the plaintiffs may adjourn it until the next parliament, and 
 let the eases be written in which they cannot agree, and let 
 them refer themselves (them) until the next parliament 
 (and) by consent of men learned in the law a writ shall 
 be made (let a writ be made) lest it might happen after 
 that the court should long time fail to minister justice 
 unto complainants. ' ' ^* All the authorities agree that this 
 marks a turning point in the history of English law and 
 that "If the courts had refused to extend their juris- 
 diction by taking advantage of this statute, equity would 
 have so developed as to overshadow Common Law. If 
 the courts had promptly enforced the statute in the spirit 
 in which it was passed, equity would have had but a 
 limited field for its operations. As it was, the courts com- 
 promised. Slowly, and with evident reluctance, they took 
 a partial and limited advantage of this statute; leaving 
 equity room to develop side by side with the Common 
 Law."" The development of assumpsit is very interest- 
 ing. For example, as Page says,^® "To find breach of 
 contract classed as a tort is in some respects startling." 
 Even Blackstone classifies a breach of contract under pri- 
 vate wrongs as a tort. The idea that breach of contract is 
 a kind of tort is one which did not become obsolete for 
 centuries after the passage of the Statute of "Westminster. 
 An action for breach of contract, as we know it today, 
 was unknown. In the reign of Henry IV a suit was 
 brought against a carpenter for not building or causing 
 to be built certain houses which he had agreed to build. 
 The objection was made that the plaintiff was really count- 
 ing on a covenant, while he failed to show a sealed con- 
 tract. This objection was sustained by the court, an obiter 
 suggestion being made that perhaps "if it had been averred 
 
 "Ibid. 
 
 "Ihid., Vol. I, pp. 13-14. Italics ours. 
 
 "J6id., Vol. I, p. 14. 
 
64. COMMERCIAL ARBITRATION 
 
 that the work was begun and hy negligence left unfin- 
 ished" an action might have lain.^^ Now, Page observes 
 that though this decision was "outwardly on a question 
 of procedure" it was necessarily based upon the theory 
 "that an executory contract could not be enforced in case 
 of mere non-performance unless under seal." And he 
 calls our attention to the fact that the same decision 
 was rendered a little later in the same reign, citing Y. B. 
 11 Hen. IV., 33, pi. 60. In the reign of Henry VI, the at- 
 tempt to enforce executory contracts by the action of 
 trespass was renewed. An action was brought for breach 
 of a contract to build a mill, but, crime of crimes, it 
 was not alleged that the contract was under seal or that 
 the defendant had done anything thereunder. Ergo, the 
 question presented was the same as that presented in the 
 earlier cases. Two out of the three judges, however, were 
 brave enough to hold that the action of trespass on the 
 case would lie. The third judge dissented on the ground 
 thai if this hind of action would lie in such a case, it would 
 Ue on every broken agreement! I And Page, it seems to 
 us very properly, comments that "Historically the dis- 
 senting judge was right. The majority decision was a 
 departure from precedent. " ^* It was this departure which 
 forms the leading case on what is now regarded as a very 
 elementary proposition — ^namely, that an executory con- 
 tract not under seal is enforceable. Now, if this process 
 was a slow process, the next development of assumpsit 
 in its differentiation from other forms of trespass on the 
 case was an equally slow process. At one time the courts 
 seemed inclined to take the position that an assumpsit 
 was not a contract at all, and even after assumpsits were 
 regarded as contracts there was a lingeriag tendency to 
 treat the action as a special form of trespass on the case. 
 
 "Y. B., 2 Hen. IV., 3 b. and i, pi. 9; Page, p. 16. 
 "Page, Vol. I, p. 16. 
 
CONTRACTUAL OBLIGATIONS 65 
 
 Even Blaekstone refers to "an action on the case for what 
 is called the assumpsit or undertaking of the defendant."*" 
 It was only after assumpsit became an established and dis- 
 tinct form of action that the technicalities of actions and 
 procedure standing in the way of enforcement by the 
 courts of promises which the law might hold enforceable 
 were brushed aside. The tendency of the courts to treat 
 assumpsit as a form of trespass in the case and the fact 
 that assumpsit finally took definite shape before there was 
 any sound analysis of rights according to their inherent 
 nature led to the anomalous result of extending assum/psit 
 to many classes of cases which are not at all classed as 
 contracts in our modem legal conceptions. ' ' The promise 
 in such cases was merely a legal fiction which had to be 
 pleaded but need not be proved."^" Without reviewing 
 further this development, no student of the Common Law 
 under which we live can fail to realize that for very simple 
 and ordinary rules of contract, accepted as commonplaces 
 today and finding firm base in the customs of merchants 
 and general acceptance under Eoman law, it nevertheless 
 took centuries of English judicature and parliamentary 
 action before they became part of the grdat English Com- 
 mon Law. Indeed, says Page, "No general theory of con- 
 tract was developed or attempted during the early period 
 of the Common Law" and in the development there has 
 been free borrowing from the Eoman law; but "confu- 
 sion necessarily results from imposing Modern Law with 
 its strong tendency toward Roman principles upon a foun- 
 dation of early Common Law ; and from attempting to har- 
 monize the two."" Indeed, says Page, "we must ac- 
 knowledge that our present principles cannot be applied 
 to the early Common Law; and on the other hand, we 
 must also acknowledge that many of the peculiar prin- 
 
 "nid., Vol. I, p. 17, citing Black. Com. Ill, p. 157. 
 '"Hid., Vol. I, p. 17. 
 "Hid., Vol. I, p. 21. 
 
66 COMMERCIAL ARBITRATION 
 
 ciples of the early Common Law either are obsolete or 
 are arrested in development and that modern contract 
 law owes part of its ideas to the gradual infusion of Roman 
 Law and part to the original stock of the Common Law." 
 
 Holmes says: "Lord Mansfield showed his intuition of 
 the historical grounds of our law when he said, 'I take 
 it that the ancient notion about the want of consideration 
 was for the sake of evidence only; for when it is reduced 
 into imting, as in covenants, specialties, bonds, etc., there 
 was no objection to the want of consideration.'^^ 
 
 "If it should be objected," says Holmes, "that the pre- 
 ceding argument is necessarily confined to debt, whereas 
 the requirement of consideration applies equally to all 
 simple contracts, the answer is, that in all probability the 
 rule originated with debt and spread from debt to other 
 contracts. ' ' "' 
 
 "At the beginning of the reign of Henry VI it was 
 probably still the law that the action (of debt) would 
 not lie for a simple failure to keep a promise. ' ' '* 
 
 The right to sue upon an implied quantum meruit was 
 not recognized before 1609,^° and the first application of 
 this principle was to the case of the innkeeper. "It is 
 an implied promise of every part, that is, of the part 
 of the innkeeper, that he will preserve the goods of his 
 guest, and of the part of the guest, that he will pay all 
 duties and charges which he caused in the house." ^'' The 
 next beneficiary of this doctrine was the tailor and his 
 right to recover upon a quan-tum meruit was recognized 
 in 1610.^^ Sheppard cites a case in 1632, which he says 
 
 " Citing Pillans v. Van Mierop, 3 Burrow, 1663, 1669. 
 
 "» Holmes: "The Common Law," p. 259. 
 
 "Ihid., p. 282. 
 
 "Ames: "The History of Assumpsit," Vol. Ill, "Select Essays 
 in Anglo-American Legal History," p. 286. 
 
 " Warbrooke v. Griffin, 2 Brownl. 254 ; Moore, 876, 877, s. c. 
 
 "Six Carpenters' Case, 8 Eep. 147 a. "But the statement that the 
 tailor could recover in debt is contradicted by precedent and follow- 
 
CONTRACTUAL OBLIGATIONS 67 
 
 holds: "If one bid me do work for him, and do not 
 promise anything for it; in that case the law implieth 
 the promise, and I may sue for the wages." The whole 
 law of lien was complicated by reason of the failure to 
 recognize the validity of a promise implied in fact. This 
 failure to take account of an implied promise in fact, says 
 Ames, "greatly puzzled Lord EUenborough and his col- 
 leagues. Williajns, J., is reported to have said in 1605: 
 'If I put my cloths to a tailor to make up, he may 
 keep them till satisfaction for the making. But if I con- 
 tract with a tailor that he shall have so much for the mak- 
 ing of my apparel, he cannot keep them till satisfaction for 
 the making. ' " ^^ Of course, as soon as the right to recover 
 upon an implied quantum meruit was accepted, the dis- 
 tinction disappeared.^' 
 
 While debts founded upon a specialty were all rec- 
 ognized as valid by Glanvill, Bracton and Britton,'" never- 
 theless the king's court, says Glanvill, does not enforce 
 "privatas conventiones de rehus damdis vel accipiend/is in 
 vadium vel alias hujusmadi." ^^ And Bracton says like- 
 wise that the king's court will not concern itself except 
 very rarely de gratia with " stipulationes convention- 
 ales."^^ "As there are several cases in Bracton 's Note 
 Book, in which the validity of covenants affecting land are 
 assumed to be valid, Bracton, in the passage just referred 
 to, probably had in mind miscellaneous covenants.".'' "It 
 is certainly true that the rule that any promise under seal 
 may give rise to an action was a comparatively late de- 
 
 ing authorities." (Ames: "The History of Assumpsit," Vol. Ill, 
 "Select Essays in Anglo- American Legal History," p. 286.) 
 
 ''Ames: "The History of Assumpsit," Vol. Ill, "Select Essays in 
 Anglo-American Legal History," p. 289, citing 2 EoU. Ab. 92, pi. 1, 2. 
 
 "Ames: "The History of Assumpsit," Vol. Ill, "Select Essays 
 in Anglo-American Legal History," p. 289. 
 
 =»Ames: "The History of Parol Contracts Prior to Assumpsit," 
 Vol. Ill, "Select Essays in Anglo-American Legal History," p. 305. 
 
 " Glanvill, Lib, X, e. 12 and e. 18. 
 
 "Bracton, f. 100, a. 
 
 ''See Pollock, "Contracts" (6th ed.), 136. 
 
68 COMMERCIAL ARBITRATION 
 
 velopment in the history of covenant. As late as the 
 middle of the fourteenth century, Sharshull, J., said in 
 Y. B. 21 Ed. III. 7-20: 'If he granted to you to be with 
 you at your love-day, and afterwards would not come, 
 perhaps you might have had a writ of covenant against 
 him if you had a specialty to prove your claim. ' " ** We 
 are indebted to Professor Ames for the historical anal- 
 ysis of the development of the law of parol contracts (i. e., 
 contracts not under seal). Of course, lawyers of the 
 early days did not accept the doctrine that, after ac- 
 ceptance, an offer could not be withdrawn. Indeed the 
 rule that an attempted revocation would be ignored where 
 the offerer had promised to keep the offer open for a 
 fixed term and had received a valuable consideration for' 
 the promise first found its rise in equity ; likewise the rule 
 that attempted revocation would be ignored and a sub- 
 sequent acceptance treated exactly as if no attempted revo- 
 cation had been made. The early English judges w;ere a 
 long time in accepting as a legal doctrine the proposition 
 that "A person may by his acts or omission to act waive 
 a right which he might otherwise have under the Con- 
 stitution of the United States as well as under a statute. ' ' ^' 
 Nor, in the early development of the English Common 
 Law, was there clear understanding of the nature of agency 
 — for example, that "An agent is one appointed to transact 
 business and to make contracts with third persons in place 
 of and on behalf of the person appointing him, known as 
 the principal."^* If this understanding of the relation- 
 ship of principal and agent had been in the minds of the 
 early English judges, how could they have treated an arbi- 
 trator as an agent? In the thirteenth century the law of 
 
 "Ames: "The History of Parol Contracts Prior to Assumpsit," 
 Vol. Ill, ' ' Select Essays in Anglo-American Legal History, ' ' p. 305, 
 footnote 3. 
 
 " Pierce v. Somerset Bailway, 171 V. S. 641, at 648. 
 
 "Page, Vol. II, p. 1503. 
 
CONTRACTUAL OBLIGATIONS 69 
 
 agency was in its infancy.'' But even in the thirteenth cen- 
 tury men could not appear in the King's Court (except by 
 special favor purchased from the king), by attorneys to 
 conduct prospective litigation. The idea of representation 
 is new, though by this time it has "spread so far that the 
 debtor who in express written words promises to pay money 
 either to the creditor or to the mandatory (nuntvus) or 
 attorney of the creditor is bound by his promise; he has 
 himself given the creditor power to appoint a representa- 
 tive for the exaction of the debt." ** The idea of grant of 
 powers was also in its infancy, for while the king ever since 
 John's day had been issuing letters of credit empowering 
 his agents to borrow money and to promise repayment in 
 his name '* and a great prelate would sometimes do the 
 like, it is by this time only admitted that a man might by 
 deed appoint another to do certain limited acts. As has 
 been stated, he could not appoint an attorney to appear 
 for him in court until litigation had been begun. He could 
 appoint an attorney to deliver and receive seisin. "But of 
 any informal agency, of any implied agency, we read very 
 little. We seem to see the beginning of it when an abbot 
 is sued for the price of goods which were purchased by a 
 monk and came to the use of the convent." *" Nor did these 
 Common Law judges understand that "A partial rescission 
 of an entire contract cannot be had. The contract must be 
 valid or void in toto."*^ Nor had they reached the con- 
 clusion that there were no reasons of public policy to 
 "prevent parties from agreeing on a means of having some 
 fact in dispute determined by an agent of both parties as a 
 condition precedent to litigation."*^ Nor had they yet 
 
 "Pollock and Maitland: "History of English Law," Vol. II, 
 p. 225. 
 
 "Ihid., Vol. II, p. 224. 
 
 "Ibid., p. 225. 
 
 "Jftid., pp. 225, 226, citing Y. B. 33-5 Edw. I., p. 567. 
 
 "Page, Vol. I, p. 221, citing Teomms v. Bell, 151 N. Y. 230: 45 
 N. E. 552. 
 
 •"Page, Vol. I, p. 538, citing Scott v. Avery, 5 H. L. Cas. 811; 
 
70 COMMERCIAL ARBITRATION 
 
 realized that where "parties are attempting to adjust by 
 mutual agreement the rights and liabilities arising out of a 
 subsisting inversion of a legal right, such contract is up- 
 held if otherwise valid. "*^ (For example, that a contract 
 not to contest the validity of a patent or to arbitrate ques- 
 tions of alimony and the custody and maintenance of the 
 children, are valid.) ** 
 
 "We may say with Page, therefore, "that many of the 
 peculiar principles of the early Common Law . . . are 
 obsolete or are arrested in development."*' 
 
 The peculiar anomaly of the revocability of agreements 
 to submit controversy to arbitration is, indeed, in the 
 biology of the law, an instance of arrested development. 
 A piece of Moorish architecture set beside a Virginia 
 colonial mansion at once arrests our eyes; but placed in 
 its Oriental setting, its curves appear natural and not un- 
 pleasing. It requires some re-orientation in our thinking to 
 understand a doctrine so incongruous to modern business 
 as the one that a solemn promise in writing to submit a 
 controversy to arbitration is at all times revocable. 
 
 Hamilton v. Ins. Co., 136 IT. S. 242; President, etc., of Delaware 4r 
 Hudson Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250. 
 
 "Page, "Vol. I, p. 541, citing Northern Liberty MarTcet Co. v. 
 Kelly, 113 U. S. 199; Bawd v. Baird, 145 N. Y. 659. 
 
 "Page, Vol. I, p. 542, citing Philadelphia, etc., Co. v. Davis, etc., 
 Co., 77 Fed. 879 and Masterson v. MastersoTi, 22 Ky. L. Eep. 1193, 
 60 S. W. 301. 
 
 "Page, Vol. I, p. 21. 
 
CHAPTER VII 
 
 THE CONFLICT BETWEEN THE LAW MERCHANT AND THE 
 COMMON LAW > 
 
 Lord Mansfield did not become Chief Justice of the 
 King's Bench until 1756. Buller, J., says of Lord Mans- 
 field that he "may be truly said to be the founder of the 
 commercial law of this country (England)." ^ Buller also 
 said that "Lord Mansfield employed his learning and his 
 genius 'not only in doing justice to the parties litigating 
 before him, but in settling with precision and upon sound 
 principles general rules afterwards to be quoted and recog- 
 nized as governing all similar cases. ' " * Before Mans- 
 field 's time, Campbell tells us, "when questions necessarily 
 arose respecting the buying and selling of goods, respect- 
 ing the affreightment of ships, respecting marine insur- 
 ances, and respecting bills of exchange and promissory 
 notes, no one knew how they were to be determined. Not 
 a treatise had been published upon any of these subjects, 
 and no cases respecting them were to be found in our books 
 of reports. . . . Mercantile questions were so ignorantly 
 treated when they came into "Westminster Hall, that they 
 were usually settled by private arhitration among the mer- 
 
 'For nearly all of the material in this chapter we are indebted 
 to Carter: History of English Legal Institutions, Chapter 26, Early 
 History of the Law Merchant; and Smith on Mercantile Law, Vol. 1, 
 Introduction. 
 
 ' Lickba/rrow v. Mason, 2 T. E. 63, at p. 73. 
 
 'Carter, p. 280, citing Buller 's opinion in Lickbarrow v. Mason, 
 2 T. R. 63. See also Lord Campbell's account of Lord Mansfield and 
 his special jurymen — "Lives of the Chief Justices," Vol. III. do. 
 304, 305. 
 
 71 
 
72 COMMERCIAL ARBITRATION 
 
 chants themselves."* And BuUer, J., is authority for the 
 statement,' that before Lord Mansfield appeared, "in 
 courts of law all the evidence in mercantile cases was 
 thrown together; they were left generally to a jury, and 
 they produced no established principle." 
 
 Seventeenth century law reports give the impression that 
 there was little or no English commerce or that the people 
 engaged in commercial pursuits rarely went to the law- 
 courts to settle their disputes. There are hardly any com- 
 mercial cases reported in the reports of two centuries ago. 
 There are but a few and unimportant cases on the Law 
 of Bills of Exchange up to the time of Lord Mansfield.' 
 Mr. Justice Park, in his work on "Policies of Insurance," 
 published at the beginning of the nineteenth century, says : 
 "I am sure I rather go beyond bounds, if I assert that in 
 all our reporters from the reign of Queen Elizabeth, to the 
 year 1756, when Lord Mansfield became Chief Justice of 
 the King's Bench, there are sixty cases upon matters of 
 insurance."' And as to the law of Charter Parties and 
 Bills of Lading, Sir John Davies in the seventeenth cen- 
 tury wrote that "until he understood the difference be- 
 tween the Law of Merchants and the Common Law of 
 England, he did not a little marvel what should be the 
 cause that in the books of the Common Law of England 
 there should be found so few cases concerning merchants 
 and ships, but now the reason was apparent, for that the 
 Common Law did leave these cases to be ruled by another 
 law, the Law Merchant, which is a branch of the Law of 
 Nations."* Says Scrutton: " The reason why there were 
 
 '"Lives of the Chief Justices," Vol. Ill, pp. 299, 300; italics 
 ours. 
 
 ' lAckharrow v. Mason (1787), 2 T. K. 63, at p. 73; 1 Smith's L. C, 
 11th ed., 693. 
 
 "Chalmers: "Bills," Preface, p. 36. Scrutton: "General Survey 
 of the History of the Law Merchant," Vol. Ill, "Select Essays in 
 Anglo-American Legal History," p. 7. 
 
 'Park, 8th Ed., Vol. I, Introduction, p. Ixcrix. 
 
 "Zouch: "Jurisdiction of the Admiralty" (1686), p. 89. 
 
LAW MERCHANT AND COMMON LAW 73 
 
 hardly any cases dealing with commercial matters in the 
 Eeports of the Common Law Courts is that such cases were 
 dealt with by special Courts and under a special law. That 
 law was an old-established law and largely based on mer- 
 cantile customs. ' ' ' 
 
 Malynes' book — ^the first published work on the Mer- 
 chant Law in England — is entitled "Gonsuetudo vel Lex 
 Mercaioria," i. e., The Ancient Law Merchant, and 
 Malynes says (1622) : "I have entituled the book accord- 
 ing to the ancient name of Lex Mercaioria, and not Jus 
 Mercatorum, because it is a customary law approved by 
 the authority of all kingdoms and commonweales, and not 
 a law established by the sovereignty of any prince." 
 
 Blackstone said that merchants regulated their affairs 
 "by a law of their own called the Law Merchant or Lex 
 Mercaioria, which all nations agree in and take notice 
 of."^" Lord Mansfield declared that "Maritime law is 
 not the law of a particular country, but the general law of 
 nations." ^^ In 1883, Lord Blackburn declares in the 
 House of Lords that, with but very slight differences and 
 peculiarities, "the general rules of the law-mercliant are 
 the same in all countries."" 
 
 Lord Coke (to whose decisions we shall later frequently 
 refer) became Lord Chief Justice in 1606. Scrutton finds 
 that this date marks the "first stage" of three stages of 
 development of the Law Merchant; "before that time you 
 will find the Law Merchant as a special law administered 
 by special Courts for a special class of people." ^' These 
 
 •Scrutton: "General Survey of the History of the Law Mer- 
 chant," Vol. Ill, "Select Essays in Anglo-American Legal History," 
 p. 8. 
 
 "Blackstone: Commentaries, I, 273; IV, 67. 
 
 "Xufce V. Lyde, 2 Burr. 883, at p. 887. 
 
 ''M'Lean v. Clydesdale Bank, L. R. 9 App. Cas. 95, at p. 105. 
 
 "Scrutton: "General Survey of the History of the Law Mer- 
 chant," Vol. Ill, "Select Essays in Anglo-American Legal Hisjory," 
 p. 9. 
 
74 COMMERCIAL ARBITRATION 
 
 were the "Courts Pepoudrous." Even in Bracton's time 
 in the thirteenth century, it was clearly recognized that 
 there were certain classes of people "who ought to have 
 swift justice, such as merchants, to whom justice is given 
 in the Court Pepoudrous. ' ' ^* 
 
 "The records of these Courts," says Scrutton, "are few, 
 for obviously in Courts for rapid business law reporters 
 were rather at a discount. "^^ 
 
 Lord Mansfield, it will be recalled, had a Scotch train- 
 ing, and he was disinclined to favor the rigid application 
 of the principles of the common law. Many of his de- 
 cisions are traceable to the writings of jurists of other 
 countries, wherein he found the customs of merchants all 
 over Europe. Thus, for example in Lttke v. Lyde,^^ where 
 the question of what freight was to be paid in ease of goods 
 lost at sea came up for his decision, his rich knowledge of 
 foreign law permitted him to refer freely to the Roman 
 Pandects, the Gonsolaio del Mare, the laws of Wisbury 
 and Oleron, and various old English writers, as well as the 
 French Ordonnances. In his Life of Lord Mansfield, Lord 
 Campbell gives us a very interesting account of Lord 
 Mansfield's method for determining commercial contro- 
 versies. He says Lord Mansfield reared "a body of spe- 
 cial jurymen at Guildhall, who were generally returned 
 on all commercial causes to be tried there. He was on 
 terms of the most familiar intercourse with them, not 
 only conversing freely with them in Court, but inviting 
 them to dine with him. Prom them he learned the usages 
 of trade, and iu return he took great pains in explaining 
 to them the principles of jurisprudence by which they 
 were to be guided. Several of these gentlemen survived 
 when I began to attend Guildhall as a student, and were 
 
 "Bracton, f. 334. 
 
 " Scrutton : ' ' General Survey of the History of the Law Mer- 
 chant," Vol. Ill, "Select Essays in Anglo-American Legal His- 
 tory," p. 10. 
 
 "2 Burr. 883. 
 
LAW MERCHANT AND COMMON LAW 75 
 
 designated and honored as 'Lord Mansfield's jurymen.' 
 One in particular I remember, Mr. Edward Vaux, who 
 always wore a cocked hat, and had almost as much au- 
 thority as the Lord Chief Justice himself."" 
 
 Though the courts of England were far behind, the 
 merchants had made great advances in the disposition of 
 mercantile controversy. Even in earlier days there had 
 been commercial tribunals for the disposition of contro- 
 versy. Before the lex mercaioria became a part of the 
 Common Law of England, the principles of commercial 
 law had secured not only a foundation in the habits and 
 customs of merchants, but business men had developed 
 a procedure of their own for enforcing such, important 
 instruments of commerce as contracts, bills of exchange, 
 and insurance policies. As Smith says: "The dealings of 
 the merchants necessitated the use of simple rules; no 
 technical jurisprudence peculiar to any country would 
 have been satisfactory to traders coming from many dif- 
 ferent countries. It was necessary that there should be 
 expeditious settlements of disputes, and summary execu- 
 tions to enforce decisions between buyers and sellers, who 
 were strangers to each other, and who dispersed to dis- 
 tant places when their transactions were over. Hence arose 
 the market law, to which reference is often made; ex- 
 panded and modified, it became a principal part of lex 
 mercaioria." '^^ 
 
 In 1693 Lord Stair, the great Scotch writer, wrote (at 
 a period when commerce had made little progress in his 
 own country) that Scotch law and custom "regard not 
 inconsiderable damage in traffic, that it (a business con- 
 tract) may be current and secure, for nothing is more 
 prejudicial to trade than to he easily involved in pleas, 
 
 "Campbell: "Lives of the Lord Chief Justices," Vol. Ill, pp. 
 304, 305, note. 
 
 "Smith, "Mercantile Law," 11th Ed., Vol. I, Introduction, pp. 
 Ixiz, Ixx. 
 
76 COMMERCIAL ARBITRATION 
 
 which diverts merchants from their trade, and frequently 
 mars their gain and sometimjes their credit." ^^ 
 
 Mucli of the commerce of the Middle Ages was carried 
 on at great fairs. There was little other foreign trade. 
 In Champagne, Besangon and Lyons in France, in Ant- 
 werp in Belgium, in Winchester and Stourbridge in Eng- 
 land, fairs were held where "goods were bought and sold; 
 orders were given and taken there; outstanding payments 
 were made there; and there obligations to be discharged 
 at future fairs were contracted.'""" It is interesting in 
 passing to observe the influence of these markets upon 
 the development of bills of exchange. The Italian bank- 
 ers invented bills of exchange because they were embar- 
 rassed by the difficulty of transporting coin and by the 
 differences in coinage, so they became accustomed to trans- 
 mitting money or settling claims at the close of the in- 
 ternational fairs.^^ Now, these markets could not be es- 
 tablished vnthout the permission of the king, and it be- 
 came a matter of course to attach to every market a 
 Piepoudre Court "for the purpose of swiftly deciding 
 disputes as to contracts concluded or broken within the 
 market." ^^ Not only in England, but in Germany, France 
 and Italy special market courts were established. The 
 French fairs, and more especially the foires de Chamu- 
 pagne, acquired by royal ordinances important privileges. 
 The maitres des foires and custodes nundinarwm had juris- 
 diction over all the business of the fairs and thus de- 
 veloped what we now know as the lex m^rcatoria, "deter- 
 mined by merchants."^* The intimate relation between 
 the transactions of merchants and mariners at this time 
 developed the law of admiralty. The law merchant was 
 
 '^ See Mackenzie v. Girvan, 3 Session Cases, 2nd Series, 318, at 
 p. 323. Italics ours. 
 
 "Smith: "Mercantile Law," llth Ed., Vol. I, Introduction, p. 
 Ixix. 
 
 '^Ibid., footnote D, p. Ixr. 
 
 "Ihid., p. Ixx. 
 
 "Ibid., p. Irxi. 
 
LAW MERCHANT AND COMMON LAW 77 
 
 "from the first administered in local and popular courts 
 of mercatores et marinarii, and was intimately connected 
 with the King in Council." ^* In the Statute of the Staple 
 (27 Edward III, Statutes II, Chapter 21) there is statu- 
 tory recognition of the connection. It is true that the 
 Court of Admiralty, after a struggle, usurped the juris- 
 diction of these local and popular courts, but, in turn, 
 the common law courts "destroyed the Admiralty jurisdic- 
 tion by repeated prohibitions" and the meTdhants," dissatis- 
 fied with the illiberal policy of the common lawyers, might 
 have resorted to the Courts of Chancery, whose doctrines 
 amd practice were very similar to their own, had not Lord 
 Mamsfield appeared to create the mercantile law of this 
 coumtry."^^ These original tribunals of the merchants 
 were lay and "not professional; they were not national, 
 for they might be mixed. The men who formed part of 
 a market Court at Antwerp might in six months be doing 
 the same thing at St. Ives . . . and the Statute of the 
 Staple directs not only that where two strangers are 
 parties the inquest is to be made up of strangers, and if 
 one stranger then a jury de m,edietate, but that in every 
 staple (the staple towns were Newcastle, Lincoln, York, 
 Norwich, "Westminster, Canterbury, Chichester, Winches- 
 ter, Exeter, Bristol, Carmarthen, Devylen, Waterford, Cork 
 and Drogheda) there shall be a mayor having knowledge 
 of the law merchant elected by strangers as well as deni- 
 zens, two 'conveniable' constables chosen by the merchants, 
 and two merchant aliens to be associated to the mayor and 
 constables to hear the plaints of merchant aliens." ^' Car- 
 ter has discovered, as illustrating the international char- 
 acter of these tribunals and the internationality of the 
 law which they administered, an entry in the manorial 
 pleas published by the Selden Society (Select Pleas Ma^ 
 
 "Carter: "History of English Legal Institutions," pp. 239-260. 
 '^Ihid., p. 260. Italics ours. 
 "Ihid., p. 264. 
 
78 COMMERCIAL ARBITRATION 
 
 norial Courts, 153) namely, "a summons to all the mer- 
 chants of as many communities as there were present at 
 the fair of St. Ives, A. D. 1275, to present themselves 
 on the morrow coram seneschallo to consider and see that 
 four merchants have justice and equity, inasmuch as their 
 servant had been caught measuring canvas with a false 
 ell and selling it." Carter tells us further that "The 
 name Piepoudre was frequently given to those Courts 
 which were attached to fairs 'to determine the plaints 
 of persons passing through who cannot make any stay 
 there; such persons, that is to say, as are called pepou- 
 drous.' "" These were courts of record, and if the fair 
 was a franchise of some lord, the court was held before 
 the lord's steward. King Edward I did his best to get 
 the merchant speedy justice. In the ordinances which 
 he made when he took into his hands the franchises 
 of the City of London appears the following: 
 
 "And whereas the king doth will that no foreign mer- 
 chant shall be delayed by a long series of pleadings, the 
 king doth command that the Warden or Sheriffs shall 
 hear daily the pleas of such foreigners as shall wish to 
 
 make plaint . . . and that speedy redress be given unto 
 them. "28 
 
 Not only did King Edward do his best to get the mer- 
 chant speedy justice, but he also invited him to regard 
 the King in Council as the ultimate foundation of jus- 
 tice; so it is provided in the Statute of the Staple (27 
 Edw. Ill, Statute II) that the king's judges are not 
 to take cognizance of things touching the staple (§5) 
 but this is to be the province of the lay tribunals elected 
 by the merchants, who are to apply the law of the mer- 
 chant and not the common law. The merchants are to have 
 right done them from day to day and from hour to hour 
 (§19). In case of doubt, the matter goes to the Council, 
 
 "Carter: "History of English Legal Institutions," p. 266. 
 "Ibid., p. 270. 
 
LAW MERCHANT AND COMMON LAW 79 
 
 or if a merchant complains of want of justice, the Chan- 
 cellor and Council are to redress it without delay (§21).^' 
 Carter directs our attention to two celebrated cases which 
 went to the king. The first is that of a foreigner, Simon 
 Dederit of Guynes, who appealed to the king from the 
 great fair at Ives on a point of mercantile law. "This 
 was an appeal to the Dominus Bex at "Westminster, 'et 
 praedicius Simon dicit quod lex mercatoria talis est in 
 omnibus et singulis nundinis per totum regnum. Paratus 
 est verificare.' His opponent denies this, and the sheriffs 
 of London, Lincoln, Winchester, and Northampton are 
 each directed to produce before the king twelve good and 
 lawful merchants to recognize, &c." Carter says this 
 case shows the carefulness of that tribunal on appeal 
 to the Dominus Rex at "Westminster. In the second case 
 (Y. B. 13 Edw. 4, p. 9) to which Carter refers, a mer- 
 chant stranger complains to the Chancellor and judges 
 in Star Chamber. This gentleman had come into Eng- 
 land on a safe conduct and his goods had been stolen at 
 Southampton. The Chancellor solemnly held that such 
 a person was entitled to sue in England "according to 
 the law of nature in the Chancery, that is the law mer- 
 chant, which is law universal throughout the world. 
 'Cest suit est pris par un marchant alien que est venus 
 par safe conduit icy, et il n'est tenus de suer selonques le 
 ley del terre a tarier le trial de xii homes et wittres solempni- 
 ties del ley de terre, mes doit suer icy et sera determine 
 solonques le ley de Nature en le Chancery, viz. ley Mer- 
 chant que est ley universal par toute le m^nde.' " *" In 
 this connection. Carter observes that "One cannot help 
 being struck with the fact that the Chancellor is here 
 identifying the law of nations with the law of nature, 
 just as Roman lawyers identified the ius gentium with the 
 ideal ius naturae," and here, summarizes Carter, "lay 
 
 'Ibid., p. 271. 
 "Jfttd., pp. 271-272. 
 
80 COMMERCIAL ARBITRATION 
 
 the bond between the Ohajicellor and the merchants. He, 
 like the praeior, considered what was aeqwum et bonum 
 and what was agreeable to the mores, or the usages of 
 honest and honourable people." And Carter further ob- 
 serves that "One might go further and surmise that the 
 law merchant was in fact largely based on the Roman 
 law" and that possibly "the law merchant was the channel 
 through which the Roman law chiefly affected our law." 
 Neither the Chancellor nor the merchant set any store 
 on consideration or seal. The evidence is that the doc- 
 trine of consideration did not come from Chancery and 
 that it was in spite of the efforts of Lord Mansfield that 
 the courts of common law forced on the custom of mer- 
 chants, which knew nothing of it, the purely English 
 indigenous doctrine of consideration.^^ Carter reminds 
 us that "the civil law has very little corresponding to our 
 doctrine of consideration; consent made the contract; 
 it was dishonorable to break a promise once m^ade." 
 Very early writers of treatises on the law merchant, 
 Malynes (1622) and Marius (1670), were not lawyers, but 
 merchants, and Malynes regards not so much what the 
 law may say as what merchants will say. "The credit of 
 merchants is so delicate and tender that it must be cared 
 for as the apple of a man's eie."'^ "The nature of a 
 Bill of Exchange is so noble and excelling all other deal- 
 ings between merchants, that the proceedings therein 
 are extraordinary and singular, and not subject to any 
 prescription by law or otherwise, but merely subsisting of 
 a reverend custom used and solemnized concerning the 
 same (p. 261). Such is the sincerity and Candor Animi 
 amongst merchants of all nations beyond the seas in the 
 observation of plain dealing concerning the said Bills 
 Obligatory that no man dare presume to question his own 
 
 "Carter: "History of English Legal Institutions," p. 274, citing 
 Pillans V. Vam Mierop, 3 Burr. 1663. 
 "P. 76. 
 
LAW MERCHANT AND COMMON LAW 81 
 
 hand." "* And Sir John Davies, writing "Conoeming Im- 
 positions" about the beginning of the seventeenth century, 
 says, "Whereas at Common Law no man's writing can be 
 pleaded against him as his act and deed unless the same bei 
 sealed and delivered, in a suit between merchants, Bills of 
 Lading and Bills of Exchange, being but tickets without 
 seals, letters of advice and credence, policies of assurance, 
 assignations of debt, all of which are of no force at the 
 Common Law, are of good credit and force by the Law 
 Merchant."" 
 
 Now, it is a suggestive historical fact that, notwithstand- 
 ing the nature of mercantile contracts as thus treated 
 by merchants themselves, there should have been a de- 
 termination on the part of the Common Law courts to 
 drive the mercantile courts out of existence. Take, for 
 example, the treatment of marine insurance.'" In the mid- 
 dle of the fifteenth century, the magistrates of Barcelona 
 devised the ordinances of insurance, and about the close 
 of that century the practice of insuring, having been 
 introduced into England by the Lombards, became very 
 general. Yet no reported decision in England is to be 
 found before the reign of Elizabeth for the very obvious 
 reason that merchants disposed of such disputes in their 
 own courts or in some domestic forum. By the statute 
 of 43 Eliz. c. 12, Parliament established a court or com- 
 mission, consisting of the recorder, two doctors of civil 
 law, two common lawyers and eight "grave and discreet 
 merchants," with full power to hear and determine all 
 assurance cases "in a brief and summary course, as to 
 their discretion shall seem meet, without formalities of 
 pleadings or proceedings" — in short, to administer mer- 
 cantile law in the summary method peculiar to it. Yet 
 
 "Ihid., p. 74. 
 "Carter, p. 275. 
 
 "Smith: "Mercantile Law," 11th Ed., Vol. I, Introduction, pp. 
 Izviii-l^ix. 
 
82 COMMERCIAL ARBITRATION 
 
 these courts were driven out of existence. The first and 
 most serious blow came in the decision in the case of 
 Came v. Moye.^^ In this case the Court held that a judg- 
 ment by the commissioners was no bar to an action at 
 law. It will be observed that in a suit upon a policy of 
 assurance, the commissioners dismissed the suit and the 
 defendant pleaded that by reason of the fact that the 
 plaintiff had been defeated before the commissioners, its 
 judgment was a plea in bar, "as it is Interest BeipubUcce 
 ut fit Finis litium." Yet the Chief Justice and the entire 
 Court solemnly held that this court had no jurisdiction 
 in rem but in personam,, and since "there is a certain 
 rule that a decree in a court of equity shall not be a bar 
 to an action at Common Law, that, by analogy, the com- 
 missioners being treated as a court of equity, their judg- 
 ment was not a bar to a Common Law action." How 
 strange this all sounds — ^that a Common Law court should 
 say that a judgment of a court of equity had no blading 
 effect upon it! This was in 1658. After this decision 
 there were prohibitions to restrain the commissioners, the 
 court fell into disuse, and, writing in 1787, Park, J., said 
 that no commission had issued in very many years. 
 
 So, too, in the history of the conflict between the Ad- 
 miralty Courts and the Courts of Common Law in Coke's 
 time. In 1575 an agreement was entered into between 
 the Common Law judges and the Admiralty Court and 
 brought about a temporary lull in the struggle. Another 
 agreement was arrived at in 1633 " but by Lord Hobart's 
 decision in Bridgman's case^' cognizance of contracts 
 made at sea, but not for or in respect of maritime mat- 
 ters, was withdrawn from the Admiralty Court. (Some 
 time between 1614-1625.) By fictitious allegations there- 
 after contracts really made at sea were made at the Royal 
 
 "2 Sid. 121. 
 
 "Smith, Vol. I, Introduction, p. Ixxvii. 
 
 "Hob. ll. 
 
LAW MERCHANT AND COMMON LAW 83 
 
 Exchange and so actions on charter-parties were brought 
 within the purview of the courts of Common Law. 
 
 Holdsworth calls the opposition of Coke and the Com- 
 mon lawyers to the Court of Admiralty "unscrupulous." 
 "And, from the point of view of the Common Law, the 
 attack had been skilfully directed upon a position which 
 it was worth much to secure; for the prize was nothing 
 less than jurisdiction in all the commercial causes of a 
 country the commerce of which was then rapidly expand- 
 ing." Coke's opposition to this development meant "much 
 inconvenience" to the merchant litigant and for the com- 
 mercial law of the country "it meant a slower develop- 
 ment." Indeed, says Holdsworth, "if Lord Mansfield is 
 to be credited with the honorable title of the founder of 
 the commercial law of this country, it must be allowed 
 that Coke gave to the founder of that law his oppor- 
 tunity. "'» 
 
 "Holdsworth: "The Law Merchant," Vol. I, "Select Essays In 
 Anglo- American Legal History," p. 319. 
 
CHAPTER VIII 
 COKE'S mCTUM IN VYNIOE'S CASE 
 
 The law of New York, like that of most of the states 
 and of the United States, may be traced directly to Vyni- 
 or's Case. In Union Insurance Company v. Central Trust 
 Company,^ Justice Vann says: "The earliest authority 
 upon the subject is the celebrated Vynior's Case (4 Coke, 
 302), where the condition of an arbitration bond was 
 'to stand to, abide by and perform an award.' . . . This 
 has been followed for many years and has been made the 
 basis of a multitude of judgments both in England and 
 in this country." 
 
 The line backward is Aston v. George (1819), 2 B. & 
 Aid. 395, resting upon King v. Joseph (1814), 5 Taunt. 
 452, resting upon Milne v. Gratrix (1806), 7 East 608, 
 derived from Vynior's Case, as we shall presently see. 
 
 Vynior's Case was decided in 1609 (Trinity Term, 7 
 Jac. 1). At that time the only available digests were 
 Statham's Abridgement (1470-5), Fitzherbert's Abridge- 
 ment (1577), and Brooke's Abridgement (1576), all in 
 old French.'' 
 
 In writing of Anglo-Saxon law. Pollock and Maitland 
 say: "The habit of preserving some written record of 
 all affairs of importance is a modern one in the north 
 and west of Europe. But it is so prevalent and so 
 
 » 157 N. Y. 633, at p. 642. 
 
 '"We here remember that during a long age English lawyers 
 wrote in French and even thought in French, and to this day most 
 of the technical terms of the law, more especially of the private 
 l^w, are of French origin." (Encyclopsedia Britannica, 11th ed., 
 Vol. 9, p. 601, article "EngUsh Law," by F. W. M. [i. e. P. W. 
 Maitland]). 
 
 84 
 
COKE'S DICTUM IN VYNIOR'S CASE 85 
 
 much bound up with, our daily habits in modern life 
 that we have almost forgotten how much of the world's 
 business, even in communities by no means barbarous, 
 has been carried on without it." And these careful stu- 
 dents say, evidently expressing their own feelings: "And 
 the student of early laws and institutions, although the 
 fact is constantly thrust upon him, can hardly accept 
 it without a sort of continuing surprise." Th€y remind 
 us that there is great danger "of overrating both the 
 trustworthiness of written documents and the importance 
 of the matters they deal with as compared with other 
 things for which the direct authority of documents is 
 wanting," a danger that "is a specially besetting one in 
 the early history of English law. . . ."* Again: "Our 
 Germanic ancestors were no great penmen, and we know 
 that the reduction of any part of their customary laws 
 to writing was in the first place due to foreign influ- 
 ence."* Yet even when Vynior's Case was decided, great 
 respect was paid to precedent and authority. Coke, in 
 addressing the reader in an Introduction to Part VII of 
 his reports, enumerates, among the dangers against which 
 judges should guard: "4. Novelty; for I have ever holden 
 all new or private interpretations, or opinions, which have 
 no ground or warrant out of the reason or rule of our 
 books, or former precedents, to be dangerous, and not 
 worthy of any observation : for periculosum existimo quod 
 bonorum rirorum non comprohatur exemplo." Yet the 
 difSculty of determining what were to be precedents was 
 the first reason stated by Coke for publishing his own 
 reports.' His opening sentence is: "Nothing is or can 
 be so fixed in miad, or fastened in memory, but in short 
 time is or may be loosened out of the one, and by little 
 and little quite lost out of the other." He points this 
 
 'History of English Law, Vol. I, p. 25. 
 mid., p. 26. 
 
 °Coke: Eeports, Part I, trans. Thomas and Fraser, 1826, pp. 
 sxv, xxvi. 
 
86 COMMERCIAL ARBITRATION 
 
 with the observation ° that, if our profession in former 
 times had not reported "to ages succeeding, the opinions, 
 censures, and judgments of their Reverend Judges and 
 Sages of the common laws," "certainly as their bodies in 
 the bowels of the earth are long ago consumed, so had 
 their grave opinions, censures, and judgments been with 
 them long since wasted and worn away with the worm 
 of oblivion. ..." And for himself he says: "I have 
 often observed, that for want of a true and certain Re- 
 port, the Case that hath been adjudged standing upon 
 the rack of many running Reports (especially of such 
 as understood not the state of the question) hath been 
 so diversely drawn out, as many times the true parts of 
 the Case have been disordered and disjointed, and most 
 commonly the right reason and rule of the judges ut- 
 terly mistaken." With prophetic vision of the conse- 
 quences of his own dictum in Vynior's Case he says: 
 "Hereout have sprung many absurd and strange opin- 
 ions, which being carried about in a common charm, and 
 fathered on grave and reverend judges, many times with 
 the multitude, and sometimes with the learned, receive 
 such allowance, as either beguile or bedazzle their con- 
 ceits and judgments. ' ' ' 
 It was not until 1884 that Prof. Vinogradoff discovered 
 
 "Coke: Reports, Part I, trans. Thomas and Praser, 1826, p. xxvi. 
 
 'In his Introduction to Part VIII, Coke points out how two very 
 serious errors had been made by the historians even of his own 
 time, through failure to examine original sources of information. 
 The first is "that the trial by juries of twelve men (which is one 
 of the invincible arguments of the antiquity of the common laws, 
 being only appropriated to them,) was not instituted by the powerful 
 will of a conqueror, as some of them peremptorily aflSrm they were ' ' ; 
 and second, "that the Court of Common Pleas was not erected 
 after the statute of Magna Charta (which was made in the ninth 
 year of King Hen. 3) contrary to that which others do hold." As 
 to the first, he says, "there is nothing more untrue, for it is most 
 certain and apparent by the laws of King Etheldred that it (trial 
 by jury) was in use many years before" and similarly, he traces 
 the error concerning the history of the Court of Common Pleas. 
 See post, p. 135 et seq. 
 
COKE'S DICTUM IN VYNIOR'S CASE 87 
 
 in the British Museum the manuscript of Braeton's Note 
 Book, and not until 1887 that Maitland puhlished the 
 first edition of it in Latin. The first English translation 
 of either Statham, Brooke or Pitzherbert was published in 
 1915 by the Boston Book Company, a translation of Stat- 
 ham 's Abridgment by Margaret Center Klingelsmith. It 
 is only within the past decade that the Tear Books have 
 been partially translated into English by the Ames Foun- 
 dation and the Selden Society. Tet even within these lim- 
 its of modem research we may be able now to fix and 
 determine the true place of Vynior's Case, and its succes- 
 sors in the Common Law. 
 
 First of all, let us study with a little care the case 
 itself. It was decided in 1609. It appears in three dif- 
 ferent reports, in the original Tear Book as 7 Jac. 1, rot. 
 2629 ; twice in Brownlow and Goldesborough's Reports (2nd 
 Ed. 1654) ; and finally in Coke's own Reports, Part VIII, 
 at p. 80. It is the latter volume which is most frequently 
 cited which we shall first examine ; * the difference in the 
 several reports will later bear examination. 
 
 The first sentence in the report is illuminating: "Rob- 
 ert Vynior brought an action of debt against William 
 Wilde, on a bond of £20." Upon examining the plead- 
 ings, we find that the bond contained the following lan- 
 guage: 
 
 "The condition of this obligation is such, that if the 
 above bounden William Wilde do and shall from time to 
 time, and at all times hereafter, stand to, abide, observe, 
 perform, fulfil, and keep, the rule, order, judgment, ar- 
 bitrament, sentence, and final determination of William 
 Rugge, Esq., arbitrator indifferently named, elected, and 
 
 'Coke's Eeports became "The Reports" (literally) as soon as 
 they appeared. Parts 1 to 11 were first published in French, at 
 different times between 1602 and 1615 (Lincoln's Inn Catalogue), 
 or 1607-1615 (Harvard Law Library). Parts 12 and 13 were not 
 published until 1656 and 1659 (Lincoln's Inn Catalogue), long after 
 Coke's death. The first eleven parts were reprinted in English in 
 1658. (Soule: "Lawyer's Reference Manual," p. 92.) 
 
88 COMMERCIAL ARBITRATION 
 
 chosen, as well of the part and behalf of the said "W. 
 Wilde, as of the part and behalf of the above named Rob- 
 ert Vynior, to rule, order, adjudge, arbitrate, and finally 
 determine, all matters, suits, controversies, debates, griefs, 
 and contentions heretofore moved and stirred, or now 
 depending between the said parties, touching or concern- 
 ing the sum of two and twenty pence, heretofore taxed 
 upon the said W. Wilde, for divers kind of parish busi- 
 ness within the said parish of Themilthorpe ; so as the 
 said award be made and set down in writing, under the 
 hand and seal of the said William Rugge at or before 
 the feast of St. Michael the Archangel next ensuing after 
 the date of these presents, that then this present obliga- 
 tion to be void and of no effect, or else the same to stand, 
 abide, remain, and be in full force, power, strength and 
 virtue." 
 
 In short, here is a bond, under seal, with conditions 
 endorsed thereon, the purpose of which is to insure the 
 observance by William Wilde of an award to be made 
 by William Rugge, arbitrator. Robert Vynior held this 
 bond and upon it he sought to hold Wilde. He succeeded 
 — ^the last sentence of the decision is: "And afterwards 
 jitdgment was given for the plaintiff." 
 
 At this period in our Common Law one concept at 
 least had become firmly fixed, namely, that a bond sol- 
 emnly given under seal must be enforced, unless the obligor 
 were released by the happening of one or more of the 
 conditions endorsed upon the bond. Into this doctriae of 
 law, as early understood, entered no consideration of prin- 
 ciples of contract law, no discussion of executed or ex- 
 ecutory contract. The bond, by virtue of the seal, attained 
 a sanctity all its own. Like the grant in a deed, it vested 
 in the obligee certain rights defeasible only upon the hap- 
 pening of certain definite contingencies. Now, if the 
 happening of the contingency or condition was prevented 
 by the act of the obligor himself, the old judges saw the 
 
COKE'S DICTUM IN VYNIOR'S CASE 89 
 
 grave injustice' in not permitting the obligee to enforce 
 the bond, for, in truth and common reason, no man should 
 be permitted to relieve himself of an obligation by his 
 own act. So, as early as 1482,^ it is said, in an action 
 in detinue on a bond: "If you make a bond to enfeoff 
 me of the manor by deed before a feast and you make 
 feoffment of that manor to another before the said feast, 
 you nevertheless have forfeited the bond because you 
 have made impossible the performance of the condition 
 thereof." It is this very case which furnishes the ratio 
 decidendi of Vynior's Case. The argument in Vynior's 
 Case, as well as the decision, establishes this fact very 
 clearly. William, the defendant, by John Eussell, his 
 attorney, by way of defense, prays oyer of the writing, 
 and after hearing it, he says, that "Robert ought not to 
 have his action aforesaid against him, because he saith, 
 that the arbitrator aforesaid, after the making of the writ- 
 ing, and before the aforesaid feast of St. Michael the 
 Archangel, in the condition aforesaid above specified, did 
 not make any award^" in writing, under the hand and 
 seal of the same arbitrator, between him the said Wil- 
 liam and the aforesaid Robert." Ergo, argued Russell, 
 the condition of the bond had not arisen "according to 
 the form and effect of that condition;" and he professed 
 to stand ready to verify the fact on the proofs. "Ah!" 
 said Robert, but the reason why the arbitrator did not 
 make his award is that you, William, "after the making 
 of the writing aforesaid, and before the aforesaid feast 
 of St. Michael the Archangel," did revoke "and did call 
 back all the authority whatsoever which the said William 
 Wilde, by the said writing obligatory had given and com- 
 mitted to the aforesaid William Rugge, his arbitrator, 
 and then altogether disallowed and held void, and all 
 and whatsoever the aforesaid William Rugge, after the 
 
 • 21 Edw. rv, 54, 55. 
 -"Italics ours. 
 
90 COMMERCIAL ARBITRATION 
 
 delivery of the same writings of revocation, should do 
 to (for) him in and about the said arbitrament," etc. 
 And this he, Robert, was willing to stand to and prove. 
 To this replication, "William demurred, saying that he was 
 not required "by the law of the land" to answer. There- 
 upon William prayed for, and obtained, judgment upon 
 the pleadings. 
 
 Now, there are a number of technical points in the case. 
 It is argued, that it was not pleaded that the revocation 
 had been communicated to Rugge, the arbitrator. But the 
 court disposed of this upon precedent, saying that it made 
 no difference, because the words "revocavit et abrogwvit 
 omnem authoritatem, <&c." implied notice in themselves 
 "for without notice it is no revocation or abrogation of 
 the authority." Consequently, on the plea non revoca/uit 
 the defendant could have his day in court. Then there is 
 much discussion over the form of the bond, whether or 
 not it is in legal effect the same as one in 5 Bdw. IV. 
 3b, where the Court said the obligor "cannot discharge 
 the arbitrament, but that he shall forfeit his bond." But 
 the fine spun reasoning of Coke over the meaning of 
 "stand to" and "abide by" is swept aside 215 years later 
 by Abbott, C. J. (1825)." "The distinction drawn be- 
 
 '^Warburton v. Storr. Barnewall & Cresswell's Eeports, Vol. IV, 
 p. 103. This case was an action in debt upon an agreement which 
 provided that the plaintiff having commenced an action against 
 the defendant, they " 'did agree with and to each other, that they 
 the said plaintiff and defendant respectively should and would well 
 and truly observe, perform, and keep the award, order, arbitrament, 
 and final determination of C. S.,' concerning the said action, to be 
 made within a certain time. 'And each of the said parties did 
 thereby bind himself and his executors, &c., unto the other of them 
 his executors, &c., in the penal sum of 100£ for the true and faith- 
 ful observance and performance, on their respective parts, of the 
 award and determination which should be made as aforesaid.' " The 
 defendant revoked the arbitration before the time of the award. 
 Campbell, in support of the demurrer raised in behalf of the de- 
 fendant, argued: "Where an arbitration bond is given containing 
 in the usual form a condition that the parties shall 'stand to and 
 abide' the award; it has been held that lie condition is broken by a 
 revocation of the submission, but that if the words are merely 
 
COKE'S DICTUM IN VYNIOR'S CASE 91 
 
 tween the different words above cited," said Abbott, "is, 
 I must confess, extremely nice and subtle, nor can I dis- 
 cover any real and substantial difference between them." 
 He holds in this case that it is "a well known and estab- 
 lished rule of law, that if a party covenants to do a cer- 
 tain thing, and afterwards, by his own act, disables him- 
 self from performing it, that is in itself a breach of 
 the covenant. This rule," he says, "is so well estab- 
 lished that authorities need not be cited in support of it." 
 Accordingly, he finds that "the second reason in Vynior's 
 case is clearly applicable to the present, viz. that as the 
 obligor had by his own act made the condition of the bond 
 impossible to be performed, the bond had become single." 
 We see here how the rule came to be applied to con- 
 tracts as well as to bonds. Says Abbott, "Apply that to a 
 covenant, and it falls precisely withia the rule which I 
 have before mentioned. So here, the defendant having 
 agreed under a penalty to perform an award, and having, 
 by a revocation of the submission, disabled himself from 
 doing so, he has broken his agreement, and thereby sub- 
 jected himself to an action for the penalty." 
 
 Thus Coke 's subtle reasoning as to the form of the bond 
 is disposed of and so far as this case is concerned, his 
 admonition to the lawyers to stick to the old forms is 
 entirely unnecessary. "This form," he says, "was in- 
 vented by prudent antiquity, and it is good to follow, 
 in such cases, the ancient forms and precedents, which 
 are full of knowledge and wisdom." It is this reverence 
 for old forms and precedents and the technical pleading 
 of those days that will aid us to understand the nature 
 of the error in the evolution of this branch of the law. 
 
 'observe, perform, fulfill, and keep' the award, there the condition 
 is not broken unless an award is made and not performed," for 
 which he cites Vynior's Case — an error of very serious consequence, 
 for any careful reading of the Vynior Case would have shown that 
 the bond in the Vynior Case did contain these words, "stand to, 
 abide, observe," etc. 
 
92 COMMERCIAL ARBITRATION 
 
 Vynior recovered upon his bond. Wilde had precluded 
 the making of the award ; Wilde was in the wrong ; there- 
 fore, judgment goes against him. There was then no 
 rule or public policy against enforcing • penalties. So 
 Vynior was allowed to recover the full penalty, which, 
 we may assume, he had made large enough to cover him 
 fully in case the arbitration did not take place. There 
 is no consideration of any "ousting of the Court's juris- 
 diction." On the contrary, the Court takes jurisdiction 
 and seems to think that it is carrying out a sound public 
 policy in enforcing the bond. It quotes the decision in 5 
 Edw. 4. 3/b. for the proposition "that the obligor cannot 
 discharge the arbitrament, but that he shall forfeit his 
 bond." 
 
 It will be observed that thus far in our study of the 
 case we have not found it necessary to consider the revo- 
 cability of the submission. Now we come, however, to 
 the words which have since brought about all the mis- 
 chief. William's lawyer argued: "That although W. 
 Wilde the defendant was bound in a bond to stand to, 
 abide, observe, &c., the rule, &c. arbitrament, &c. yet he 
 might countermand it; for a man cannot hy his act make 
 such authority, power, or warrant not count ermandaile, 
 tvhich is hy the law and of its own nature countermamd- 
 dble." " This argument is clearly unnecessary to the de- 
 cision of the case, because, as we have seen, the court 
 could and did dispose of it upon the proposition that when 
 William revoked the authority of the arbitrator, he made 
 it impossible for one of the conditions of the bond to arise 
 and thus, as the old judges said, "the bond became sin- 
 gle" — i.e. enforceable. But, though the statement is un- 
 necessary to the case, it is repeatedly cited as though it 
 were final and settled doctrine. A man, says March, can- 
 
 " Italics ours. 
 
COKE'S DICTUM IN VYNIOR'S CASE 93 
 
 not by his own act, "make such an authority, power, or 
 warrant: not countermandable, which by the Law and its 
 own proper nature is countermandable. " ^' 
 
 Let us consider the proposition upon its merits. Is 
 it sound in reason or in precedent, even in the day of 
 Coke? The argument is : "If I make a letter of attorney 
 to make livery, or to sue an action, &c. in my name; or 
 if I assign auditors to take an account; or if I make one 
 my factor; or if I submit myself to an arbitrament; al- 
 though these are made by express words irrevocable, or 
 that I grant or am bound that all these shall stand ir- 
 revocably, yet they may be revoked ; so if I make my testa- 
 ment and last will irrevocable, yet I may revoke it, for my 
 act or my words cannot alter the judgment of the law 
 to make that irrevocable, which is of its own nature revo- 
 cable." Now, taking up the last illustration first, while it 
 is true that I may revoke my last will and testament, yet if 
 I have agreed with A. B. that, in consideration of her dis- 
 posing of her property in one way, I will dispose of mine in 
 another, A. B. can enforce the obligation against me and 
 I can enforce the obligation against her — equity will en- 
 force the mutual wills that we have made by virtue of 
 such an agreement, in spite of a revocation by either of 
 
 "P. 165. As to the effect of this dictum upon later Bigestera 
 see: 
 March — "Actions for Slander and Arbitrements" (1648), p. 164 
 
 et seq. 
 John Wilson — "Law Relative to Arbitration" (1793), p. 57. 
 
 "How a Submission may be Revoked." 
 Matthew Bacon — "The Gompleat Arbitrator: or. The Law of 
 
 Awards" (1770), Sec. IIL 
 W. H. Watson — "Arbitration and Awards," pp. 36-44. 
 Stewart Kyd — "A Treatise on the Law of Awards," pp. 31 and 
 
 32. 
 "Cyclopedia of Law and Procedure," Vol. Ill, p. 610. 
 Toledo S. S. Co. v. Zenith Transportation Co., 184 Fed. Eep. 396, 
 
 citing Morse on Arbitration, p. 437; 3 Cyc. 586, 604, and 
 
 Vynior's Case, 4 Coke (Part VIII) 302. 
 Also post, pp. 128-141. 
 
94 COMMERCIAL ARBITRATION 
 
 Tis.^* AecorSingly, it is not true, at least in our day, 
 that a last will and testament, "being in its nature re- 
 vocable, may never be made irrevocable." All of the other 
 illustrations relate to agencies, either to make livery of 
 seizin, or to bring suit, or to take an account, or to become 
 a factor; and lastly, per analogy, arbitrations, &c. "or if 
 I submit myself to an arbitrament." Here the argument 
 breaks down. 
 
 The failure to difEerentiate between a power and a con- 
 tract is pardonable if one keep in mind that at this stage 
 of the evolution of the English law, there was no clear 
 appreciation of the nature of the mutual and reciprocal 
 obligation of a parol contract if "the God's penny" had 
 not passed. The old judges made a marked distinction 
 between an obligation and a mere promise to do a thing. 
 Kyd refers to this distinction. ^° Says he: "In the year 
 books, a distinction is taken between a submission by 
 obligation, and a submission without obligation. In the 
 first case it is said, that the obligor cannot discharge the 
 arbitrator, because he is bound to stand to his award ; but 
 that in the latter it is otherwise." At this point Kyd cites 
 in a footnote 5 Edw. IV. 3b.^* But he, like all the other 
 writers, prefers the opinion of Lord C. J. Coke in Vynior's 
 Case, who, he says, "explains this distinction in this way; 
 that in both cases the authority of the arbitrator may 
 indeed be revoked; but that where the submission is with- 
 out obligation, the party revoking loses nothing; whereas, 
 in the other case, he forfeits the penalty of his bond; 
 for by countermanding the authority of the arbitrators, 
 he has not fulfilled the condition, by standing to, and 
 abiding by their award ; and because, when a man, by his 
 own act, renders the condition of the bond impossible, the 
 
 "See Phillip v. Phillip, 160 N. Y. Supp. 624, 96 Misc. 471, an 
 interesting opinion by Judge Kodenbeck. See also Sastetter v, 
 Eoenninger, 214 N. T. 66. 
 
 "Kyd on Law of Awards, p. 31. 
 
 "See post, pp. 106-107. 
 
COKE'S DICTUM IN VYNIOR'S CASE 95 
 
 bond becomes single, as if no condition had been annexed" 
 — for which he cited Vynior's Case. This reveals unmis- 
 takably the source of the doctrine of revocability. 
 
 But, says Kyd: "This difference in the effect of a 
 revocation in the two cases, was certainly good law at the 
 tiine, when it was held, that no action could be main- 
 tained on an award of a collateral thing made in conse- 
 quence of a parol submission ; hut now that it is held, that 
 an action may he maintained on such an award, it may 
 reasonably he supposed the courts would also sustam an 
 action on the case for countermanding the authority of the 
 arbitrator."" 
 
 And may it not also be said with reason that the pend- 
 ency of an agreement or submission to arbitrate is a 
 good plea to an action by one who breaches the agreement 
 or submission? 
 
 Carrying out the technical distinction of his day be- 
 tween an obligation and a mere promise, we find Coke say- 
 ing in Yynior's Case : Where "I am hound to stand to the 
 award which J. S. shall make, I could not discharge that 
 arbitrament, because I am bound to stand to his award, 
 but if it be without obligation it is otherwise . . . for ex 
 nuda submissione non oritur actio." 
 
 The next error Coke falls into is in treating the dele- 
 gation of power to the arbitrator as an appointment of 
 an agent. Of course this is a false analogy, as Lord 
 Chancellor Thurlow saw clearly. In 1790 in Calcraft v. 
 Boehu^k ^^ he said : " It is not uncommon for a person, 
 appointed arbitrator, tp consider himself as agent for 
 the person appointing him. How that is so common I 
 wonder; as it is against good faith "^° and earlier still, 
 1762, in Common Bench (Wills v. Maccarmick, 2 Wilson, 
 
 "P. 32. Italics ours. 
 
 »1 Vesey, Jr. 221, at p. 226. 
 
 "See also Lord Lonsdale v. Littledale, 2 Vesey, Jr. 451, 452 (1794), 
 per L. Ch. Loughborough; and Fetherstone v. Cooper (1803) per 
 Lord Ch. Eldon, 9 Vesey, Jr. 67, 67a, 
 
96 COMMERCIAL ARBITRATION 
 
 148, 149) it is said per curiam "an award is a judgment 
 by judges chosen by the parties themselves." 
 
 Besides, Coke was misled even as to agency, for if the 
 agency be coupled with an interest, it is no longer "by 
 its very nature revocable" — it has become by a man's 
 action irrevocable. Take any of our factor agreements, 
 running over long periods and involving large sums, could 
 the principal deprive the factor of his profits, by an act 
 of revocation ? ^^ 
 
 That Coke in his report (8 Co. 82) gave undue and 
 unnecessary prominence to his dictum of the revocability 
 of submission (wandering from the point, as Bacon might 
 say) appears from two other reports of the same case in 
 Brownlow and Goldesborough's Reports (Printed in 
 1651; Second Edition 1654) under "Actions of Debt." 
 
 Part 1, p. 62. WiMe versus Vinor, Trin. 7 Jac. rotulo 
 1629, or 2629. "Debt upon an Obligation to perform 
 an Award. The Defendent pleads, that the Arbitrators 
 made no Award; the Plaintiff replies, that the Defendent 
 by writing did revoke, and null the authority of the 
 
 " 2 Manning & Granger's Reports 55. In 1840 in Taylor v. Marling 
 a sum of money was deposited with one Fisher and he was au- 
 thorized to arbitrate and settle all the differences between the par- 
 ties and pay out the money accordingly. Before his award, one 
 of the parties was put into bankruptcy. The courts were asked to 
 hold that bankruptcy was a revocation of the submission, but they 
 fail to find any authority for this proposition — on the contrary they 
 hold that since Fisher was "a stakeholder" as well as an arbitrator, 
 it was a power coupled with an interest — "though the plaintifE did 
 not absolutely place money (Italics the Court's) in the hands of 
 Fisher" but instead "gave a valuable consideration for the 3500£ 
 being so deposited in relinquishing his right to take out execution on' 
 the warrant of attorney. Each party had an interest in the fund, 
 dependent upon the contingencies of an award being made wholly 
 or partially in his favour." (Italics ours.) 
 
 "But, where an authority or power is coupled with an interest, 
 or where it is given for a valuable consideration, or where it is a 
 part of a security, there, unless there is an express stipulation, thai 
 it shall be revocable, it is, from its own nature and character, in 
 contemplation of law, irrevocable, whether it is expressed to be so 
 upon the face of the instrument, conf erring the authority, or not." 
 (Story on Agency, Sec. 477.) 
 
COKE'S DICTUM IN VYNIOR'S CASE 97 
 
 Arbitrators. Foster held the Bond was forfeited, al- 
 though he might revoke, the Plea was, that he did dis- 
 charge the Arbitrators against the form of the Condition. 
 My Lord Coke held, that the power was countermand- 
 able, if the Submission be by writing, the countermand 
 must be by writing, if by word I may countermand by 
 word: If two bind themselves, one cannot countermand 
 alone. If Obligor, or Obligee disable by their own act to 
 make the Condition void, the Bond is single, 14. H. 7. 
 If I am bound to infeofE A and I marry her before the 
 day, the Bond is forfeited, 18. B. 4.18.20. the great doubt 
 was; because no express notice, but notice was implied. 
 And the Bond forfeited, because he did not stand to it. 
 Judgement for the Plaintiff." 
 
 Again, as Vivian (sic) against 'Wilde: 
 
 Part II, p. 290. "A Man was bound in an Obligation 
 to another with Condition to stand to, abide, and per- 
 form the award of two Arbitrators, and before award, 
 by his writing the Obligor revoked the Authority of one 
 of the Arbitrators: and it was agreed by all, that this 
 Obligation is become single without Condition; and yet 
 it was not pleaded that the Arbitrator had notice of the 
 Revocation before the award made: And yet for that it 
 was pleaded, that Bevocavit, it was agreed that that im- 
 plies notice, for without notice it is no Revocation; But it 
 was agreed, that if a man submit himself to the award 
 of another, and after he revokes his Authority: But be- 
 fore the Arbitrator had notice of that, he makes the 
 award, the award is good and shall be performed; so if a 
 man make a Feoffment, and Letter of Attorney to make 
 Livery: And before Livery made he revokes the power 
 of the Attorney: But before notice the Attorney makes 
 Livery, this is good, but if the Feoffer makes a Lease or 
 Feoffment to another before the Livery made by the other, 
 this is a Countermand in Law, and shall be good with- 
 out notice, for Fortior est dispositio legis quam hominis: 
 
98 COMMERCIAL ARBITRATION 
 
 But where a man makes actual Revocation of the Au- 
 thority, and before notice, the other executes his Au- 
 thority, and in pleading the other pleads; Quod revocavit, 
 the other party may reply. Quod non revocavit, and give 
 in evidence that he hath no notice of that before the ex- 
 ecution of his Authority, and this is good, for without 
 notice it is no revocation, where revocation is the act 
 of the party : The Case is entred, Trinity 7. Jacohi Botulo 
 2629. Vivion against Wilde." 
 
 The real decision of the case, accordingly, is upon two 
 propositions — 
 
 (a) The liability on the bond matures if the submis- 
 sion is revoked; 
 
 (b) Though notice of revocation to the arbitrator is 
 necessary, it is implied in the pleading "He revoked," 
 etc. 
 
 That this is the true explanation of the decision is 
 further established by study of another case — four years 
 later (1613) — where Coke led the court, in Common Pleas 
 (10 Jacobi). The case is that of The Lord Mounteagle v. 
 Penruddock, and is to be found in Godbolt's Reports 
 (1613), p. 185, where "it was holden by the whole Court 
 in this case, and agreed by all the Serjeants at the Barre, 
 That if two men submit themselves to the arbitrament of 
 I. S. And the Arbitrator doth award, that one of them 
 shall pay ten pound, and the other shall make a release 
 unto him, that the same is a void Award, if the submission 
 he not iy Deed; ^'^ and he to whom the Release is to be 
 made by the Award, may have remedy for it, for other- 
 wise the one should have the ten pound, and the other 
 without remedy for the Release." (You could sue in as- 
 sumpsit for the £10, but you could not compel the delivery 
 of the release.) 
 
 "And it was resolved. That upon submission and ar- 
 
 " Italics ours. 
 
COKE'S DICTUM IN VYNIOR'S CASE 99 
 
 bitrament, that the party may have an Action upon the 
 Case for not making of the Release. 
 
 "And Cook (Coke) chief Justice said, That it was 
 wisely done by Manwood, chiefe Baron, when he made 
 such award, That a Lease or such like CoUaterall thing 
 should be done, to make his Award, that he should make 
 the Release, or pay such a sum of money, for which the 
 party might have a remedy. I conceive, that the reason 
 is. That no Action upon the case upon an Arbitrament 
 lieth; because it is in the Nature of a Judgement. At 
 another day, the opinion of the Court was with Cook, 
 and 20 H. 6. and 8 E.4.5 cited to the purpose, that there 
 ought to be reciprocall remedy." The case in 20 H. 6 
 to which reference is made is reported in T. B. 20 H.6. 
 18 (1442) of which there are three different abridgments 
 (Statham, Klingelsmith trans. 12; Pitzherbert Arb. 8, and 
 Brooke, Arbit. 3). 
 
 A study of the case and of the three abridgments shows 
 that each abridgment differs from the other and all three 
 from the case itself. Nevertheless, we can gather, by piec- 
 ing them all together, that the Court decided that an 
 arbitrament by which the arbitrator held that both par- 
 ties should exchange releases and one should in addition 
 pay to the other 100 M was a good plea to an action in 
 trespass, though Newton had great difficulty in determin- 
 ing how, if one party delivered the release and the other 
 did not, the first man could compel the delivery by the 
 second. March cites this case for the proposition that 
 "It is a good Award, that because that the one party 
 hath done more trespass to the other, then the other to 
 him, that he shall give a penny in satisfaction, and that 
 the other shall be quit against him. ' ' '" 
 
 The judges of those days had great difficulty in enforc- 
 ing an award where one party was required to give a 
 release and the other was to pay money, or where the 
 
 "March: "Slander and Arbitrement, " p. 208. 
 
100 COMMERCIAL ARBITRATION 
 
 submission was not under seal. How could you compel 
 the delivery of the release, or how could a thing not 
 under seal have any enforceable value? 
 
 In Tilford v. French, 15 Car. II in B. E.^* (1664), in a 
 suit for Debt for £50, it is alleged that the plaintiff and 
 the defendant mutually submitted to the award of J. S., 
 who awarded that the defendant should pay the plain- 
 tiff £50 and the plaintiff on payment thereof should de- 
 liver to the defendant certain writings and also "make 
 to him a Release." The Court held the award void, "For 
 that the Defendant had no Remedy for the Writings 
 and the Release upon this parol Submission"; the court 
 did not consider the remedy of specific performance. But 
 the reason given is: This parol submission "did not 
 imply any Promise to perform it, and so it is an Award of 
 one Part only." So Viner cites this case (also reported in 
 1 Keb. 635) for the proposition that "mutuaZ submission is 
 no promise itself, but only an evidence of it." 
 
 But studying the more complete report of the case in 
 1 'Keble 599, we find that Jones for the plaintiff ar- 
 gued: "This is a reciprocal promise, and therefore per- 
 formance need not be averred; nor that the Submission 
 was by Bond on promise, . . . and in such case, it need 
 only be said that they mutually submitted." Winning- 
 ton for the defendant cited Mounteagle v. Penruddock 
 as "the very case in point" which "hath been adjudged 
 for the cause, that no remedy can be had for the Release." 
 So here, the decision is not that the award is void, as 
 we gather from Levinz's report and Viner 's abridgment 
 of the case, but, it is "resolved, no Action upon the Case 
 lieth on such a Submission, the remedy being only on the 
 Judgment of the Arbitrators. . . . The Plaintiff ought to 
 discontinue, or go to new Trial in Action upon the Case 
 on special promise." And though by Hyde and Curiam 
 it is said "the Mutual Submission is no promise in it 
 
 ■•Eeported in 1 Levinz, at p. 113. 
 
COKE'S DICTUM IN VYNIOR'S CA^E 001 
 
 self^ but only an Evidence of it," the real di^cultj^pf 
 the Court is one of pleading, for "without express prom- 
 ise (alleged), no Action upon the Case lieth ia Debti, 
 it being long before such promise was created (meaning, 
 we assume, the doctrine of promise implied from recip- 
 rocal obligations) which is not to be extended; and there- 
 fore it self it will not create any promise, thotigh it be 
 evidence of it." (Italics ours.) 
 
 The judges were in these days troubled by another 
 point. Was an award of as high a legal nature as an 
 "obligation" (i. e. a Deed or Instrument under seal) ? So 
 Viner says:^* "When a Duty accrues by the Deed ia 
 Certainty, tempore Gonfectionis Scripti, as by Bill, there 
 is a certain Duty and it takes its Essence and Operation 
 originally and only by Writing; and therefore in Debt 
 thereupon an Award is no Plea" (citing Co. 6. Blake 43.b). 
 So in Morris against Creach ^^, 22 Car. II in B. E. (1671), 
 where the suit is in "Debt on an Obligation by three Ex- 
 ecutors" to which the defendant pleads that the parties 
 having submitted to arbitration of all the differences, it 
 was awarded, "That the Defendant should be quit of the 
 Obligation." Now, here was a pretty point : Could an ob- 
 ligation under seal be discharged by an award of ar- 
 bitrators? Upon the plaintifEs' demurrer to the Plea, 
 the Court held, "That an Obligation by itself is not sub- 
 mittable, because it is a Debt certain, otherwise it is as 
 here, where it is submitted among other Things." Ac- 
 cordingly — ^because the obligation was only one of the 
 matters submitted to arbitration, "Kelynge and Twysden 
 held the Plea good, notwithstanding the Controversies were 
 only between one of the Plaintiffs and the Defendant;" but 
 Moreton, with more conservatism, "doubted, not only for 
 the said Reason, but also for that an Arbitrament is not 
 of so high a Nature as an Obligation, and therefore can- 
 
 « Viner 's Abridg. 103. 
 »1 Levinz's Eep. 292. 
 
102 COMMERCIAL ARBITRATION 
 
 not be a Bar." But, says Levinz, armotating the case: 
 "See 45 Ed. 3.16 an Opinion, That an Award by Deed 
 is pleadable in Bar of an Obligation. But 1 Rolle 270 is 
 an Opinion to the contrary." And Viner cites 4 Hen. 
 6. 18 and 10 Hen. 7.4 in addition to Moreton for the 
 statement that "In debt upon an Oiligation, am Award 
 is no plea." 
 
 The formality of pleading at the time is illustrated 
 by a case in 3 Croke, 577-8, where in Trinity Term, 18 
 Jac. 1, 1622, a plea, that an award by arbitrators was 
 delivered at a place other than the one mentioned in 
 the submission, was good, "for," as Doderidge and Hough- 
 ton, J. J., say, "it is reason it should be published 
 and ready to be delivered at the places appointed where 
 the parties are to expect it, and not at any other place; 
 for the parties have not by intendment any cognizance 
 of such delivery; and there being a day and place ap- 
 pointed, they needed not to seek it in other places, nor 
 to take cognizance of such delivery."^' "But Montague, 
 Chief Justice, held, that this publication there, and the 
 allegation that it was adtunc et ibidem ready to be deliv- 
 ered at the said shop in the Exchange, was sufficient." 
 
 "Coke," says Maitland,^^ "could look back to Edward 
 Ill's day as to a golden age of good pleading." In Coke's 
 day "Times of inventive liberality alternated with times 
 of cautious and captious conservatism. ' ' "^ 
 
 "This is contrary to the earlier decision in 8 Ed. IV, 10 (1469), 
 see post, pp. 115-116. 
 
 " Eneyclopsedia Britannica, 11th ed., Vol. 9, p. 603, art. "English 
 Law. ' ' 
 
 "Ibid. 
 
CHAPTER IX 
 
 THE EAEUEE PEECEDENTS CONTEA TO COKE'S DICTUM 
 
 But according to the earlier precedents, was a sub- 
 mission or agreement to arbitrate revocable at the pleas- 
 ure of either of the parties? Bracton in his Note Booh 
 cites ^ three cases involving arbitration — one in 1224, one 
 in 1231 and one in 1233 — all decided during the reign 
 of Henry III (1216-1272), where the awards made by- 
 arbitrators were enforced by the courts at law upon proof 
 of the "conventions," or whatever document was given, 
 under which the parties "put themselves upon an arbitra- 
 ment." In a footnote to her translation of Statham's 
 Abridgment of the Law, Klingelsmith says :^ ' ' That there 
 was an early custom for litigants, or prospective litigants, 
 to agree to arbitrate the matters in dispute between them, 
 is shown by some very early cases. Bracton (Note 
 Book, f. 649) has a case of a very early date (1231), 
 another in 1233 (732), and another in 1224 (983) ; all 
 rather uninteresting cases, which in no way indicate that 
 there was anything novel about the proceeding. These 
 cases show us nothing in regard to the procedure at that 
 time. It was probably entirely informal, and yet it was 
 necessary to prove the ' conventione' or whatever it was 
 by which they 'put themselves upon an arbitrement. ' In 
 the second case in Bracton (N. B. 732) (1233) one 'profert 
 quoddam scriptum quod hoc testatur,' and his opponent 
 also offered another writing which showed a later agree- 
 ment, changing the conditions, and the latter writing was 
 
 ' Bracton 's "Note Book," Maitland. Eolios 98S, 649 and 732. 
 "P. 123. 
 
 103 
 
104. COMMERCIAL ARBITRATION 
 
 apparently accepted. The first case in Bracton (N. B. 
 649) (1231) shows both parties producing their secta, 
 which proves sufficient, but the defendant produces also 
 'Uteras petentes'; they do not seem to have a^y effect 
 upon his cause, however. The third case is an entirely 
 different proceeding (N. B. 984) in which the final agree- 
 ment seems to be put into the hands of arbitrators, two 
 of whom were justices sitting on the ease." By refer- 
 ence to Bracton^ we find that the first of the three cases 
 mentioned by Klingelsmith, the one decided in 1231, is 
 unusually instructive.* Willelmus de la Mare, or, per- 
 haps, William of the Sea, brings a suit in which he prays 
 that Simoni de Chelefeuldia shall pay him damages in the 
 amount of thirty marks for a rick of hay which had, he 
 claimed, deteriorated. Simon pleaded that the case was 
 one for "placitum in curia cristianitatis de catallis" (lit- 
 erally, a peaceful Christian court), by virtue of an agree- 
 ment entered into by both the parties to submit the con- 
 troversy to arbitration (compromiserunt se in arhitfos). 
 The plaintiff contended that the agreement of arbitration 
 was not adequate to compel him to submit his differences 
 {sectam . . . non est su-fficiens) and that he was entitled 
 to his day in the King's Court. But Simon produced a 
 second instrument, which he said had been drawn up 
 later, and claimed that in troth, by mutual consent, Simon, 
 as much as William, was bound to abide by the award of 
 arbitrators and both had renounced the privilege of the 
 forum {set reuera de communi consensu tarn, ipsius Sir 
 monis quam Willelmi compromiserunt se in arhitros). Si- 
 mon contended that, though the first instrument might 
 not be valid, the secta subsequently executed, which he 
 produced and exhibited to the court, required the deter- 
 mination of the controversy in a "peaceful Christian tri- 
 
 "Maitland's Edition of Bracton 's "Note Book" was issued only 
 in 1887. 
 ♦Fol. 649. Vol. II of Maitland's Edition, p. 499. 
 
CONTRA TO COKE'S DICTUM 106 
 
 buna!" and that, if the King's Court decided the matter, 
 both parties would be deprived of this method of deter- 
 mination. The concluding sentence in Bracton's "Note 
 Book" is: "Et prohibitum est etc." Or, as we under- 
 stand it, "William was enjoiaed and prohibited from prose- 
 cuting his suit before the King's Court. 
 
 Klingelsmith also refers (Footnote 11, p. 123) to a 
 quotation from West's Symbolography, title "Compromise 
 and Arbitration," Pt. 2, p. 164, §21 — evidently a very 
 early authority, of which we have not been able to find 
 a copy — for this proposition: "Arbitration is an extraor- 
 dinary judge, which is chosen, and hath power to judge 
 given to him by the only mutual consent ... to the end 
 they may decide their controversies." She concludes, on 
 the basis of the case in 49 Edw. Ill, which is her Note 
 2 to the title "Arbitrament" in Statham, that "the sub- 
 mission to an arbitrator could be without deed ..." and 
 though "the early cases in the Note Book show us 
 nothing of the process, except that it seemed to be a 
 well established method of settling disputes between two 
 persons," Kyd, says she, "after crediting the principles 
 of the English law to the influence of Eoman law, says 
 that it is not 'easy to say at what precise period they 
 were adopted here, or whether they were admitted at once, 
 or by degrees, as a component part of our practical sys- 
 tem. In the most ancient repositories of the decisions 
 of our courts [the Tear Books], the greater part of them 
 are mentioned as known and uncontroverted vested 
 law.' " ' Upon which Klingelsmith quotes something very 
 modem in its tone and yet quite old in its substance: 
 "Here (arbitration) is a tool of the law," says she "a 
 convenient and much used tool; one which in various 
 altered forms has come down to, and become a part of, 
 our modem law, but we have no history of its rise, its 
 growth, its permutations and reincarnations. It is in 
 
 "Kyd on Awards, pp. 3, 4. 
 
106 COMMERCIAL ARBITRATION 
 
 the 'most ancient repositories of our law' full-grown and 
 attired in correct costume."* Fitzherbert 's Abridgment 
 (1577) confirms the citations made in the footnotes of 
 Klingelsmith's English translation of Statham (1475). 
 
 If arbitration was so early and so much a part of the 
 "known and uncontroverted law" to be found "in the 
 most ancient repositories of the decisions of our courts," 
 how came it to be so arrested in its development as part 
 of the English Common Law? The answer is clear. An 
 analysis of the authorities discloses that the original au- 
 thority for the more modern statements of the revoca- 
 bility of agreements to submit to arbitration is Coke in 
 Vynior's Case. March states as an apparently incon- 
 trovertible legal proposition the countermandability of 
 arbitrators, and says that "The last and best authority 
 is Vinyors Case, where it is resolved. That though a man 
 be bound to stand to the Arbitrament, &c. yet he may 
 countermand the Arbitrators." The reason March gives 
 is because "a man cannot by his own act make such an 
 authority, power or warrant; not countermandable, which 
 by the Law and its own proper nature is countermandable 
 . . . " — reasoning almost verbatim reproduced from 
 Vynior's Case. We have already seen that this reasoning is 
 no part of the decision of Vynior's Case and, as we now re- 
 gard legal decision, is mere obiter dicta. The other au- 
 thority upon which March relies is Brooke. It will be seen 
 from the translation of Brooke, and, indeed, from March's 
 own text, that Brooke's reliance is on 5 B. 4. "where it 
 is said. That if a man be bound to stand to the Arbitre- 
 ment of J. N. he cannot discharge the Arbitrator; con- 
 trary if he were not bound to stand to his Arbitrement: 
 yet," says March, "Brook upon this Case saith, That it is 
 clear that he may discharge the Arbitrator in both cases; 
 but in the one case he shall forfeit his Bond ; in the other 
 he shall lose nothing, because ex nuda submissione non 
 
 •Klingelsmith's Statham 's "Abridgment of the Law," p, 134, 
 
CONTRA TO COKE'S DICTUM 107 
 
 oritur actio. ..." But, when we come to examine 
 Brooke, we find that all he actually says upon 5 E. 4 
 — the case to which March refers-^-is: "Note. "Where a 
 man is bound to abide by the arbitrament of J. N., he 
 cannot discharge the arbitrator. Contrary, if he was 
 not bound to abide by his arbitrament tamen videt clearly 
 that he can discharge the arbitrator in the one case and 
 in the other (italics ours) but he shall forfeit his bond." 
 There is nothing from which a deduction may be made 
 such as is made by March: i. e., "he shall lose nothing, 
 because ex nvda suhmissione non oritur actio," and all 
 that there is to the report in the Year Book itself (5 Edw. 
 4.3.) is the following: "If I am bound to abide by the 
 award which J. S. shall render, I cannot discharge the 
 arbitrament because I am bound to abide by his award, 
 but if it is without bond it is otherwise."'' The entire 
 case consists of about a line and a half and we have 
 quoted and translated all there is to it. There is no 
 means of determining the nature of the suit, or of the 
 defense, or whether or not there had been an arbitrament; 
 though it may be inferred that at this time, unless a bond 
 was given, no action would lie, because, as we have al- 
 ready seen, there was no such thing as an action for 
 breach of an executory contract resting upon parol prom- 
 ise.* We get the key to the contemporary reasoning in the 
 expression in March: "because ex nuda suhmissione non 
 oritur actio." Obviously, if you gave a bond conditioned 
 upon the happening of an event, the bond being under seal, 
 there was a valid obligation; and if the event did not 
 transpire your rights matured upon the bond. But if there 
 was no bond, there was no obligation. 
 
 March . does not refer to Pitzherbert's Abridgment, 
 which, it will be recalled, was published in 1577, nor to 
 Statham's, published about 1470. But Statham had dis- 
 
 '' See ante, pp. 53-54. 
 
 'See Kyd on "The Law of Awards," p. .31. 
 
108 COMMERCIAL ARBITRATION 
 
 cussed arbitration: "2. If the parties put themselves into 
 an arbitration without a deed, they can discharge the 
 arbitrators without a deed before the day, etc., or they 
 can put off the day by the assent of both, without a deed. 
 But if the submission be by deed it is otherwise: by 
 Fynchendon, in Debt, etc., for he should be discharged 
 by both parties by deed. Reported in Y. B. Hilary, 49 
 Ed. Ill, p. 8, pi. 14. See also Fitzh. Arbitrement 22.'" 
 In other words, Statham claimed that if an arbitrament 
 were made by deed, the parties could only discharge the 
 arbitrators by another deed, although they could put off 
 the day of the arbitration by mutual consent without a 
 deed. 
 
 Here is a vivid illustration of the effect of formality 
 upon the legal mind. If you reduced your submission 
 to the form of a deed of submission, or if you accom- 
 panied your agreement (to arbitrate) with a bond, you 
 were safe and sound. Tour obligor could not cancel the 
 bond even with your assent save by another instrument 
 of equal solemnity. You could not cancel a deed except by 
 deed. But if you merely had a contract — a contract to 
 submit to arbitration, and no formal, binding obligation 
 under seal to abide by the result, you had something 
 "ex nuda." "The contracts enforced by the civil courts," 
 says Holmes, "even as late as Henry II were few and 
 simple."^" 
 
 Holmes has outlined three stages in the development 
 of the doctrine of consideration.^^ "So far as parol con- 
 tracts were concerned," the action of debt "could only 
 be used where the consideration was a benefit actually 
 received by the promisor." ^^ Ordinarily, an agreement to 
 arbitrate conferred neither benefit upon the obligee nor 
 
 • KUngelsmith 's "Statham," p. 117. 
 "Holmes: "The Common Law," p. 259. 
 '^Ibid., p. 267 et seq. 
 "Ibid., p. 271. Italics ours. 
 
CONTRA TO COKE'S DICTUM 109 
 
 detriment upon the obligor. It was not until much later 
 that a promise was considered sufficient benefit or detri- 
 ment to support the contract. Holmes also, as does ^' Page, 
 refers to the curious case in Henry IV 's time where it 
 was said that if a man undertook to make repairs on 
 another's house and by his unskillfulness spoiled his em- 
 ployer's timbers, an action of trespass on the case would 
 lie. Yet the "action could not have been maintained for 
 a simple refusal to build according to agreement; but it 
 was suggested by the court that, if the writ had men- 
 tioned 'that the thing had been commenced and then 
 by negligence not done, it would have been otherwise. ' " ^* 
 Again,^^ says Holmes : ' ' But it cannot be denied that the 
 allegation of an undertaking conveyed the idea of a prom- 
 ise, as well as that of an entering upon the business in 
 hand. Indeed, the latter element is sufficiently conveyed, 
 perhaps, without it. It may be asked, therefore, whether 
 the promise did not count for something in raising a duty 
 to act. So far as this involves the consequence that the 
 action was in fact for the breach of a contract, the an- 
 swer has been given already, and is sustained by too great 
 a weight of authority to be doubted. To hind the defend- 
 ant hy a contract, an instrument under seal was essential." 
 
 Holmes gives it as the result of his study that "At the 
 beginning of the reign of Henry VI it was probably still 
 the law that the action would not lie for a simple failure 
 to keep a promise. ' ' ^' 
 
 Keeping in mind these intricacies in the evolution of 
 the law, we shall now turn to the Year Book cited by 
 Statham, where we find a case decided 235 years before 
 Vynior's Case, not discussed by Brooke, nor by March, 
 nor distinguished by Coke in Vynior's Case, although it 
 
 "Ante, p. 63. ^ 
 
 " Holmes, p. 277, citing Y. B. 2 Hen. IV, 3, pi. 9 : 11 Hen. IV, 33, 
 pi. 60; Cf. 3 Hen. VI, 36, pi. 33. 
 "lUd., p. 280. Italics ours. 
 "Ihid., p. 282. 
 
110 COMMERCIAL ARBITRATION 
 
 is cited, a ease which is a clear and unmistakable au- 
 thority contrary to the doctrine stated by Coke. 
 
 In 1375 (Hilary Term, 49 Edw. Ill) Erode brings an 
 action of debt against de Ripple " for one hundred marks 
 on a bond, accompanied by a deed, which provided that 
 the plaintiff and defendant should submit to the arbi- 
 tration of Roger Digge and three others on a certain day 
 at Cambridge, and in case these arbitrators could not 
 
 "Brode v. de Bipple, Y. B. 49 Ed. Ill, 8 and 9 (1375). Delt. 
 
 John, son of John Erode, brings a writ of debt against Staee 
 de Bipple and asks for lOOM on a bond. Hasty: He should not 
 have an action, for we tell you that this same John who is plain- 
 tiff, by this deed indented which is here, we are bound to the accord 
 and arbitrament of Eoger Digge, and three others, on a certain day 
 at Cambridge, provided they can agree, and if not, the arbitrament 
 of Martin Petit, who should be elected umpire in the manner afore- 
 said, to arbitrate certain lands and tenements which the said J. 
 Erode claimed against the said J. Stace in the Court of our Lord 
 the King; that the said bond of lOOM shall lose its forc^, but if 
 they cannot agree, as is said above, that the said John may prosecute 
 his action in the Court of our Lord the King, as he did before; 
 and we say that we came to Cambridge on that very day and the 
 arbitrators came and could not agree; nor did anything, nor the 
 umpire either. Therefore, there is no default in us, for which we 
 ask judgment, if by force of the deed he can have action against 
 us or ask nothing. 
 
 Persay: Sir, you see clearly how the bond is simple in itself, and 
 the deed which is put forward in defeasance of the bond holds that 
 if he abides by the arbitrament of certain people that the deed 
 would lose its force and he has not alleged that he was ready and 
 that he is still ready to abide by their arbitrament. That, therefore, 
 we conclude that even if they did not arbitrate on a certain date, 
 they could arbitrate on another day, and you have never excused 
 yourself for all time. Therefore, the bond is effectual in toto. 
 Wherefore we ask judgment. And pray for debt and our damages. 
 
 Hasty: Eut since the deed states in it a certain day on which 
 they should arbitrate and we have said that they did not agree nor 
 arbitrate, therefore, there was no default in us and this matter 
 (procedure) we do not ask. We ask judgment and pray that it will 
 be (a) bar he does not deny. 
 
 Belknap (Judge) : If a man is bound by a deed to pay a certain 
 sum of money on a certain day in defeasance of a bond to a great 
 sum, if the obligee brings a writ of debt for the sum stated in the 
 bond, I say that even if the defendant alleged that he proffered on 
 that day a lesser sum than stated in the deed on the day stated in 
 the deed, if he does not allege that he was ready thereafter and 
 is still proffering the moneys at the bar (i. e. keeps up the tender 
 by tendering in court) he will not be excused of (from paying) 
 
CONTRA TO COKE'S DICTUM 111 
 
 agree, then to the arbitrament of Martin Petit, who was 
 designated as umpire — a certain controversy which had 
 arisen concerning lands and tenements to which each 
 claimed title. The proviso of the deed was that, if the 
 arbitrators failed to agree, or if the umpire failed to de- 
 cide, then the plaintiff was to have his action at law on 
 the bond; but if they did agree, they were both to abide 
 by the decision of the arbitrator or umpire, that is to 
 say, if they did abide by the award the bond would be 
 
 the sum stated in the bond, for even if he did not pay on the 
 certain date, he is held to pay after. Therefore, &c., when he is 
 bound to abide to the arbitrament on a certain day, even if they did 
 not arbitrate on that same day, it is reasonable that he is bound 
 to their arbitrament made later: For, &c. (sic). 
 
 Kirton (probably Roger de Kirketon, Judge of C. P., appointed 
 48 Edw. Ill) : It is true in your first case of payment of moneys 
 by the Penal Sum; but in this case the indenture wishes (sic — i. e. 
 provides) that the party may go ahead with his action in this court 
 on a certain day after. Therefore, if he awaits till they wish to 
 arbitrate, he would lose his action, or the other party would lose 
 his land. For that reason, therefore, the cases are not similar. 
 
 Persay (for the plaintiff) : Therefore we tell you that Martin 
 Petit, who was elected umpire, came to the Chancery on that very 
 day that the four arbitrators should arbitrate and since the arbitra- 
 tors could not agree, he gave a day eight days after at Bipple 
 (i. e. adjourned the case) where the land was, by your own assent 
 (the defendant), on which day you came there and the said Martin 
 awarded that you should return the twelve acres of land to the 
 said J., upon which you delivered to us seven acres as parcel. And 
 the remainder you declined to deliver. Therefore, the award waa 
 not performed on your part. For which we ask judgment on this 
 bond, which is (now) in force and pray for our debt and damages. 
 
 Hasty (for the defendant) : But since the deed is limited that 
 wo should be bound by their arbitrament on a certain day, on which 
 day, as we have said, they did not arbitrate, nor did anything, nor 
 did the umpire either, therefore, we have complied with that which 
 ia stated in the indenture (deed) and also the indenture provides 
 that if they cannot agree that he (the plaintiff) should go ahead 
 with his action for the land on a certain day after. For that reason, 
 as it is alleged, the umpire gave us another day besides by assent 
 (adjourned by consent) and that we came to the land as above. 
 No law puts us to our answer and we pray that it be barred. 
 
 Et sic ad judicium et super hoc dies datus est usque in XV 
 Paschal, ad a/udiendum judicium smtm. And so to judgment and 
 besides a day is given in 15 Easter term for hearing their judgment 
 (meaning the judges). 
 
 [I am indebted to Mr. F. de E. Storey and to Professor Joseph 
 Warren oi the Harvard Law School for the foregoing trajislation.] 
 
112 COMMERCIAL ARBITRATION 
 
 void. It appears from the report of the case that the 
 original set of arbitrators was unable to agree, and there- 
 fore the matter went to the umpire, Petit. Petit, on the 
 day fixed in the deed, was unable to arrive at a decision. 
 In consequence, he declared an adjournment of the ar- 
 bitration. Upon this footing, it is pleaded that, by reason 
 of the failure to make the determination upon the spe- 
 cific day mentioned in the deed, the plaintiff was entitled 
 to enforce the bond. It was argued, that since the um- 
 pire had not rendered any decision, therefore the arbi- 
 tration had failed and the plaintiff should be permitted 
 to recover. But Hasty, arguing for the defendant, said 
 that since the arbitrators had been unable to arrive at a 
 decision and had referred the matter to the umpire, and 
 the umpire had been unable to arrive at a decision and 
 had adjourned the arbitration, and that his client, the 
 defendant, had appeared before the arbitrators and was 
 ready and willing to proceed with the arbitration before 
 the umpire on the adjourned day, it was no fault of his 
 .that the arbitration had not yet been determined, and 
 that, in consequence, he should not be required to answer 
 the plaintiff's suit. With this plea the Court agreed and 
 the plaintiff was non-suited. In other words, the pendency 
 of the arbitration and the fact that the adjourned day 
 had not yet arrived vms regarded as a go<fd plea in har 
 to an action upon the bond or upon the deed. The con- 
 cluding words of the decision are: "Et sic ad judicium. 
 Et super hoc, dies datus est usque in XV Paschae, ad 
 audiendum judicium swum,." The words "Et sic ad 
 judicium" mean "And so to judgment." (Ames Foun- 
 dation : ' ' Year Books 12 Richard II, " pp. 22, 23 ) . And the 
 words "Et super hoc, dies datus est usque in XV Paschae, 
 ad audiendum judicium swum" undoubtedly mean that, 
 in addition to the judgment, a day certain was fixed for 
 hearing and determination by the judges. 
 
 Here, then, in the reign of Edward III, is a recognition 
 
CONTRA TO COKE'S DICTUM 113 
 
 of the validity of the arbitration agreement, provided the 
 parties reduce the obligation to the solemn form then 
 recognized in the law as the necessary basis for all obli- 
 gations. The instruments, a deed and a bond, were sealed ; 
 therefore the Court could give them effect. Accordingly, 
 the pendency of the arbitration thereunder was treated as 
 a bar to an action by the plaintiff, although the adjourn- 
 ment, as Statham observes, was not by deed. 
 
 Furthermore, Statham and Fitzherbert are authorities 
 for the proposition : "It is a good plea that they have put 
 themselves upon am arbitration which is not yet made; 
 and this in Trespass" ^* and cite a case in 1389, Hilary 
 Term, 13 Ric. II. Klingelsmith says: "There is no printed 
 Year Book for 13 Ric. II. Fitzh. Arbitrement, 26, has 
 nearly the same abridgment of the case."" 
 
 With Bracton's notes discovered only in 1885, the Eng- 
 lish and American judges who have passed upon this sub- 
 ject have heretofore relied upon Vynior's Case as the 
 final word upon the subject. Today we know that at least 
 235 years prior to Vynior's Case there was ample legal 
 authority for the proposition that the pendency of an ar- 
 bitration was a bar even to an action in trespass. 
 
 Returning once more to Vynior's Case, we find, in ad- 
 dition to the citation of Brooke and 5 Bdw. 4., reference 
 to 21 H.6.30a, 28, 29 H.6 6b, 49 E.3.9 a, 18 E.4.9, 8 Ed. 
 4.10. "We shall examine each of these in turn. 
 
 Examination of the Year Book report in 21 H. VI. 30a, 
 will not disclose whether there was any bond accompany- 
 ing the submission, nor whether the submission was in 
 writing. We find there only a plea to an action in debt 
 that the parties had agreed to arbitrate. The action is 
 an action upon an award, and the . defendant pleads that 
 the authority of the arbitrator had been revoked. He 
 subsequently withdraws his plea and interposes the plea 
 
 '"Statham, Klingelsmith 's translation, p. 123. 
 "Ihid. 
 
114 COMMERCIAL ARBITRATION 
 
 that he is not indebted. The ease does not disclose its 
 outcome. All that we find at the end is: "And he 
 made his law." The citation in Vynior's Case must be 
 based upon Brooke's digest of the case, for Brooke says 
 that in an action of debt, where arbitrament is pleaded, 
 it is a good plea that, after the submission and before 
 an award was rendered, the plaintiff discharged the ar- 
 bitrator on such a day, year and place, etc., for that can 
 be countermanded. But the case itself, as it is reported 
 in the Year Book, does not support Brooke's abridgment. 
 Fitzherbert does not refer to the ease at all. 
 
 As bearing upon the looseness of reports in the Year 
 Books, Kyd ^° states that ' ' a case is reported in two books, 
 in one of which a doubt is expressed, whether all being 
 by parol, the plaintiff could maintain that action (on an 
 award) or have any other remedy; but that," says Kyd, 
 "is evidently nothing more than a loose note of the re- 
 porter, and the pleadings are there very inaccurately 
 stated. In the other book, the case is reported at length, 
 and the manner of the pleadings distinctly given; the 
 breach being assigned in a discharge by the defendant of 
 the arbitrators from making any award ; and the judgment 
 of the court, without much hesitation, in favor of the 
 plaintiff.""'- 
 
 There remain to consider but two more references in 
 Yynior's Case— 18 E. 4, 9 and 8 Ed. 4, 10. Upon ex- 
 amination of 18 Edw. IV, 9 (1479), we discover that the 
 action was an action on covenant brought upon an in- 
 denture, by which the defendant agreed to pay the plain- 
 tiff £10 upon condition that the plaintiff build a house 
 for the defendant. "And the plaintiff shows how he came 
 to make the house and was ready to do it when the de- 
 fendant came to him and commanded that he should not 
 
 ""Law of Awards," p. 32. i 
 
 *■ Newgate v. Degelder, 18 Car. II, 1 Sid. 281, 2 Keble 's Eeports, 
 10, 20, 24. 
 
CONTRA TO COKE'S DICTUM 115 
 
 build the house, on the strength of which he departed." 
 Upon demurrer, both Littleton and Choke held that the 
 plea was a good plea, for, as Littleton says: "If one is 
 retained by me by a deed to be my servant for a year 
 and then I command him that he must not come to my 
 house, etc., and he comes thereafter to my house, I have 
 an action of trespass against him. Therefore here, if the 
 carpenter comes upon my land, after my command that 
 he should not, I may have an action of trespass against 
 him. Ergo, by preventing the carpenter from building 
 the house, the latter was discharged from his covenant 
 and after such a discharge the carpenter has his action 
 in debt for the ten pounds, if he wishes, for there is no 
 defense." It is only by way of argument, at the close 
 of the case, that Vamisour says that "A man can dis- 
 charge his arbitrator or his auditfM: after the submission 
 and after they have sat" — an argument which had no 
 bearing upon the case and which in no wise expresses or 
 affects the determination of the judges. The case may 
 be regarded as authority for the main principle decided 
 in Vynior's Case, namely, that the defendant having made 
 it impossible to perform the condition of the bond, the 
 plaintiff could sue upon the bond; but it is in no respect 
 an authority for the right of either party to revoke an 
 agreement to arbitrate. 
 
 The last case cited in Vynior's Case is 8 Bdw. IV, 9 
 and 10 (1468). This was an action upon an award made 
 by arbitrators, and the entire discussion, covering four 
 pages of the Tear Book, relates to the question whether 
 it is essential to the holding of the defendant upon an 
 award, that he shall have had actual notice of the awwrd 
 by the arbitrator. The judges gravely discuss whether or 
 not the plaintiff should have his suit; though it appeared 
 from the pleadings that he had not alleged, that, before 
 the suit, the defendant had notice of the award. They 
 ultimately hold that it was the business of the defendant 
 
116 COMMERCIAL ARBITRATION 
 
 to know of the award, and that it was not necessary to 
 allege and prove actual notice of the award to the de- 
 fendant before the suit was brought.''^ 
 
 This ease is, in reality, an authority for the validity 
 and sanctity of arbitrations, because it appears from the 
 long discussions and debates by the judges who were 
 participating (they included Yelverton, Billing, Markham 
 and Laken) that they regarded the decision as of im- 
 portance on account of its ultimate effect upon the "Com- 
 mon Weale." Laken says that "Every arbitrament is for 
 the purpose of settling (appease) the controversies and 
 differences (disputes and variances) which are between 
 the parties"; and for this reason he holds that when 
 the parties "submit themselves to arbitration they have 
 notice of the difference which exists between them and 
 have elected one person to he their judge, etc."^' Ac- 
 cordingly, he says, "It behooves them to attend before 
 him to know his determination, and they are charged 
 at their peril to take notice of the arbitrament so as to 
 perform it." And he uses as an illustration in his ar- 
 gument the duty of a defendant who has given a recog- 
 nizance to appear on a certain day before the court. "If 
 perchance the banc is another place, it behooves him to 
 be there at his peril." It will not be a plea for him to 
 say that he did not know of the change. Accordingly, 
 says Laken: "If a man is bound by the arbitrament of 
 one and that one awards something ... it behooves me 
 to perform the arbitrament, to take notice at my peril." 
 Yelverton, who takes a contrary view, nevertheless em- 
 phasizes the importance to the "Common-Weale" of the 
 precedent about to be made. In a previous case, 8 E. 
 
 "See also March, p. 261. "And when the arbitrators have made 
 their award according to the aubmission, though they are not bound 
 to give notice, but the parties are to take notice thereof at their 
 own peril, to save the forfeiture of their Bonds, etc." 
 
 = Italics ours. 
 
CONTRA TO COKE'S DICTUM 117 
 
 IV 12 b.,"* Yelverton had said: "An Arbitrement ... is 
 used for the Common-weale, for to decide debates and 
 wrongs amongst the people, as fines are" and March ex- 
 plains '"' that "A fine is so called, because that it doth finem 
 Utibus imponere" and accordingly "The proper work or 
 ofSce of an arbitrement is to put an end to controversy." 
 "For," says Yelverton in this case, "arbitrament is used 
 for the Common-Weale, that is to say, to settle disputes 
 and grievances between people and therefore, like fines, 
 and if the arbitrators can charge a party without giving 
 him a notice, then the people will hesitate (fear and doubt) 
 to submit themselves to arbitration." And, accordingly, 
 finding no precedent to the contrary and doing, as he says, 
 "The savants and the civilians do when a new case on which 
 they have no law to go upon comes before them ; they resort 
 to the law of nature, which is the basis of all law and what 
 they deem as being most beneficial to the Common-Weale" 
 — he comes to the conclusion that the award should not be 
 binding without notice to the party against whom the 
 award is made.^° It is difficult to understand how anyone 
 can conclude that in these times the courts were opposed to 
 arbitration as a method of settling disputes. Indeed, as 
 March says: " "the Law seems more favorable to Arbitre- 
 ments, then other Judgments, insomuch as by Arbitrators 
 the strict course and tedious ceremonies of Law Suits which 
 are wont most commonly to weary Suiters (and to dive 
 somewhat too deep into their Purses) are cut off, and 
 shorter decisions by them made, with little or no cost at 
 all. ' ' Nor is there any fear in the minds of the judges that 
 their courts are being "ousted of jurisdiction." On the 
 contrary they encourage, in the interests of the "Common- 
 Weale," the final settlement and disposition of contro- 
 
 " March, p. 219. 
 
 » Ibid. 
 
 » Brooke, p. 37. 
 
 "March: "Slander and Arbitraments," p. 262. 
 
118 COMMERCIAL ARBITRATION 
 
 versies outside of the courts. However, in those days prece- 
 dents were easily lost or misunderstood. March and Brooke 
 make no clear distinction between oiiter dicta, and decision. 
 
 It will be impossible to do justice either to the writers 
 of the days of March and Brooke unless we understand 
 something of their difficulties. Only within the past two 
 decades has there been any scientific study of the sources 
 of the Year Books themselves.^^ Not until Mr. Horwood 
 and Mr. Pike had done their work in the Rolls Series 
 upon the unpublished Year Books had the original man- 
 uscript of the Year Books received any study at all. 
 Up to that time the entire legal profession, indeed, the 
 legal historians themselves, accepted as authoritative the 
 printed Year Books or the abridgments published in the 
 sixteenth century. 
 
 Describing a large MS. in the Cambridge University 
 library, from which he took the text of the Year Book 
 20 and 21 Edward I, Horwood "tells us that, besides 
 the reports of those years, 'there is a large body of cases 
 illustrative of pleadings in various writs, and nearly forty 
 consecutive folios (370-409) of cases which, from the names 
 of the judges, must have occurred in or before 18 Edward 
 I' (1290)."' Pitzherbert also used for his Abridgements 
 not only Bracton's Note Book, but also reports which 
 came from 12 & 13 Edward I (1284-5), as well as a num- 
 ber of undated cases of the time of Edward 1."'° For 
 a long time it was believed that the Year Books from Ed- 
 ward Ill's reign down to Henry VII 's reign were ac- 
 tually arranged by official reporters paid by the Crown 
 itself. This belief was shared by Coke, Bacon and Black- 
 stone. Now, however, such students as Sir Frederick Pol- 
 
 "See Holdsworth: "The Tear Books," Vol. II, "Essays in Anglo- 
 American Legal History," p. 96 et spq. 
 
 "Y. B. 20, 21 Ed. I (E. S.), xv. 
 
 » Y. B. 2, 3 Ed. II (S. S.) ix, x. Holdsworth: "The Year Books," 
 Vol. II, "Essays in Anglo-American Legal History," p. 98. 
 
CONTRA TO COKE'S DICTUM 119 
 
 lock find this to be without foundation.'^ "We learn that 
 these Year Books owe their origin mainly to the enter- , 
 prise of private members of the legal profession,''' and 
 there is substantial evidence for believing, as Professor 
 Maitland believes, that these are'' "students' notebooks." 
 ""We see a most remarkable contempt for the non-scien- 
 tific detail of litigation : especially for proper names. These 
 very often are so violently perverted that we seem to have 
 before us much rather the work of a man who jotted down 
 mere initials in court, and afterwards tried to expand 
 them, than the work of an official who had the faithful 
 plea rolls under his eye. ' ' '* And again, the fact that 
 there are divergent reports of the same case indicates 
 that the authors "were men writing for themselves, who 
 not only simplified facts, but also expanded arguments, 
 and even invented both facts and arguments.'"" Again, 
 as Professor Maitland tells us : " The spirit of the earli- 
 est Year Books will hardly be caught unless we perceive 
 that instruction for pleaders rather than the authorita- 
 tive fixation of points of substantive law was the primary 
 object of the reporters."" 
 
 In the fourteenth and fifteenth centuries, Maitland 
 says: '' "Year by year, term by term, lawyers were report- 
 ing cases in order that they and their fellows might know 
 how cases had been decided. The allegation of specific pre- 
 cedents was indeed much rarer than it afterwards became, 
 and no calculus of authority so definite as that which now 
 obtains had been established in Coke's day, far less in Lit- 
 
 "Holdsworth: "The Year Books," Vol. II, "Essays in Anglo- 
 American Legal History," pp. 104, 105. 
 
 "Ibid., p. 106. 
 
 "■Y. B. 3 Ed. II (S. S.), xii. 
 
 "Y. B. 1, 2 Ed. II (S. S.), xiii. 
 
 ■"Holdsworth: "The Year Books," Vol. II, "Select Essays in 
 Anglo-American Legal History," p. 107. See also reference in foot- 
 note 2. 
 
 "■Y. B. 1, 2 Ed. II (S. S.), xiv. 
 
 " EneyclopEedia Britannica, 11th Ed., Vol. 9, p. 603, Art. "Eng- 
 lish Law," by F. W. M. [i. e. Frederick W. Maitland.] 
 
120 COMMERCIAL ARBITRATION 
 
 tleton's?^ Still it was by a perusal of reported cases 
 that a man would learn the law of England." So in 
 the introduction to Brownlow and Goldesborough's Re- 
 ports (3rd Ed. 1675), the publisher explains to the reader 
 that he thinks it "would prove too obvious a neglect of 
 Common good" to keep these cases "in the dark" and 
 therefore he presents them "to the World," and that as 
 "some few only have hitherto enjoyed by private Copies" 
 he hopes now "that all men may take that benefit by them 
 now being in Print." (Brownlow and Goldesborough were 
 "most Judicious Prothonotaries " of the Court of Com- 
 mon Pleas.) These reports of Brownlow and Goldesbor- 
 ough, as we have seen, contain Vynior's Case reported in 
 two places, placing an emphasis different from Coke 's upon 
 the phases of the case in which we are here interested. 
 
 Although the records of decisions were valuable things, 
 the practicing lawyer could get access to but a few of 
 them and then only by a lucky chance. Neither the ap- 
 prentice nor the sergeant could be certain of securing 
 anything like the access to precedents that we find neces- 
 sary either for purposes of instruction or the prepara- 
 tion of briefs.^® There were three abridgers of the Year 
 Books — Statham, Pitzherbert and Brooke. Statham was a 
 reader of Lincoln's Inn in the Lent term of 1471.*° His 
 abridgment was printed somewhere about the year 1495, 
 later editions being published in 1585 and 1679.*^ Fitz- 
 herbert's was the more complete work, first printed in 
 1514 under the title "Le Graunde Abridgment"*'' and 
 his work contains extracts from many still imprinted 
 Tear Books, as well as from Bracton's Notebook.** Brooke, 
 
 " Italics ours. 
 
 "Holdsworth: "The Year Books," Vol. II, "Select Essays in 
 Anglo-American Legal History," pp. 108, 109. 
 "Ihid., p. 112. 
 "J6id, pp. 112, 113. 
 "Ibid., p. 113. 
 "Ibid. 
 
CONTRA TO COKE'S DICTUM 121 
 
 upon whom Coke relies in his citations in Vynior's Case, 
 based his work largely on Pitzherbert's. Even the printed 
 reports of Richard Tottell of the Tear Books are not de- 
 pendable, for Tottell himself has attempted to make "cor- 
 rections"** and the carelessness with which these cor- 
 rections have been printed has been only recently demon- 
 strated by Professor Maitland.*° "Of mere, sheer non- 
 sense those old black letter books are but too full."*" 
 
 So much for an understanding of the sources of error 
 in the Year Books. Equally instructive is modern re- 
 search into the origin and sources of the English reports.*' 
 It is indeed startling to the modern lawyer to learn 
 that, from the last Year Book in 1537 to the year 1865, 
 there were no official reports and that for more than 
 three centuries the work of keeping records of the de- 
 cisions of the judges was wholly dependent upon private 
 enterprise. Says Veeder: "The most superficial ex- 
 amination of the contents of these volumes reveals the 
 defects which justify" the arraignment made, among oth- 
 ers, by Chief Justice Holt. "They will make us to appear 
 to posterity for a parcel of blockheads. ' '** The manner of 
 making these reports is interesting. "A lawyer," says 
 Veeder, "would preserve in his common-place book notes 
 of the cases cited by him in an argument, and this would 
 be followed by a memorandum of the case in which they 
 were used. He would also add, from time to time, other 
 eases which he happened to hear, or notes of which were 
 shown to him by his professional brethren. If he sub- 
 sequently attained a judicial station he would of course 
 take notes of the cases argued before him, and, very 
 likely, of cases cited in argument with which he was not 
 
 **Ihia., p. 102. 
 
 «Y. B. 1, 2 Ed. il (S. S.), xxi. 
 
 « Veeder: "The English Eeports, 1537-1865," Vol. II, "Select 
 Essays in Anglo-American Legal History," p. 123 et seq. 
 "Ibid., p. 125. 
 " Slater v. May, 2 Ld. Raymond 1072. 
 
122 COMMERCIAL ARBITRATION 
 
 already familiar. Such notes were prepared for personal 
 use and without any thought of puhlication. Their sub- 
 sequent publication was almost always posthumous. ' ' *' 
 Yet "The note-book of a reputable judge, containing a 
 report of litigation over which he presided, would possess 
 all the elements of authenticity."^" "We thus understand, 
 for example, the unreliability of citations such as are 
 used by March for his statement that a submission to ar- 
 bitration is always revocable. Take, for example, his cita- 
 tion of the case in 28 H. VI, 6. He cites it as authority 
 for the proposition that, if two plaintiffs and one de- 
 fendant, or two defendants and one plaintiff, submit to 
 arbitration, neither the one plaintiff without the other, 
 nor the one defendant without the other, may discharge 
 the arbitrator. His reason is "because that they were 
 chosen by the joynt authority of both and therefore can- 
 not be countermanded by one alone. "°^ But reference 
 to the case itself shows that it is a stronger authority for 
 the revocability of the submission than Vynior's Case. The 
 facts disclosed in the Year Book are that one B. sued C. 
 for trespass. C. set up an agreement to arbitrate — whether 
 it was by bond or deed or parol agreement does not ap- 
 pear from the ease. B., the plaintiff, sets up that he re- 
 voked the appointment of J. B., the arbitrator, and the 
 Court decides for the plaintiff. In arguing against the 
 Court, Pole, for the defendant, says: "You should not go 
 to judgment, for this discharge is void, for one party alone 
 cannot discharge without the other, for he was not elect- 
 ed by one alone, but by the two jointly and therefore it 
 is for them both to discharge. If I a/nd two others sub- 
 mit ourselves to the arbitration of one wan indifferently 
 chosen for a trespass committed by those two upon me, 
 
 "Veeder: "The English Eepoits, 1537-1865," Vol. II, "Select 
 Essays in Anglo-American Legal History," p. 125. 
 =° md., p. 126. 
 "Pp. 164-5. 
 
CONTRA TO COKE'S DICTUM 123 
 
 in that case none of them can discharge, and if he does 
 discharge it is void. Therefore here, etc. To which Ash- 
 ton, Justice, replies: It seems to me to be the contrary, 
 for when one man is elected by two as arbitrator for both, 
 he is elected or appointed by one and also by the other. 
 It is in effect as if one has appointed one and the other 
 another, in which case each can discharge the one he has 
 appointed, but in the case where there is one plaintiff and 
 two defendants who have submitted themselves to arbi- 
 tration and one is indifferently elected by those three, in 
 that case one defendant cannot discharge him, but the 
 both defendants can discharge him; and therefore here, 
 as if two men appoint one man their agent, one cannot 
 discharge him, but both can without assent of the third." 
 Accordingly, the justice, having demolished Pole's argu- 
 ment, gave judgment for the plaintiff. 
 
 The inaccuracy of the reasoning on the part of the 
 Court is very apparent to modern eyes, for if two, against 
 whom a claim of trespass is made, cannot release each other 
 from the arbitration because of the mutuality of their 
 agreement, it would seem to be equally true, as Pole ar- 
 gued, that neither of any two parties who bind them- 
 selves to arbitration can revoke the agreement without the 
 consent of the other. Pole understood the principle of 
 mutual and reciprocal obligations in a contract."" 
 
 Ashton reasoned that the arbitrator had received power 
 from two principals, and that the legal effect was the same 
 as if each had named separate and distinct attorneys. 
 Therefore, each could revoke. But this is a false analogy. 
 For if two principals on the same side of a controversy 
 appoint an agent to act for both, neither principal may 
 revoke without the assent of the other. The fact that the 
 principals are on opposing sides of a controversy cannot 
 
 »^Two years later, 30 Henry VI (1452) Pole himself became a 
 Jurlge of King's Bench. See Foas: "Judges of England," Vol. 
 IV, p. 353. 
 
124. COMMERCIAL ARBITRATION 
 
 alter the joint oharacter of the appointment. Hence neither 
 party can revoke without the other's assent. Yet, if the 
 principals were on the same side of the controversy and a 
 third man were introduced upon the other side, neither 
 principal could revoke without the assent of the other! 
 One can see how immersed in false analogy Ashton was, 
 for even upon the theory of agency, there is no distinc- 
 tion between a submission by two parties to a controversy 
 and a submission by two people on the same side of the 
 controversy. The fallacy lies in treating the arbitration, 
 as March does, as a joint agency. Of course, if it were 
 a joint agency, it could be revoked only by the united 
 action of the two principals; but again, if naming an 
 arbitrator creates an agency, then, where two people ap- 
 point the same agent, why have they not acted as joint 
 principals and rendered the power irrevocable save by 
 the consent of both? 
 
 It has been said recently : ^^ " The existence of an 
 erroneous doctrine in the law means that some lawyer has 
 been inadequate to his duty. Such a doctrine cannot 
 come into being except through a misunderstanding of 
 principles and an acceptance of insufficient reasons. At 
 some point in our legal history, therefore, attorneys have 
 not been competent to protect their clients, or judges 
 have rendered judgment upon insufficient knowledge. We, 
 who inherit a detailed body of jurisprudence, are not ade- 
 quate to our duty, either as practicing attorneys or as 
 members of the judiciary, if we fail to correct these er- 
 rors. As attorneys we are not resourceful in protecting 
 our clients' rights, and as judges we are not diligent in 
 studying the principles which we assume to enforce. ' ' 
 
 "When Pole argued in 1450, as we have seen, there was 
 no published edition of Bracton's notes. We can hardly 
 blame him, therefore, for not referring to the early au- 
 thorities. Nor had he access to 49 Edw. Ill {Erode v. de 
 i ""Abbotj Everett V.: "Justice and the Modern Law," 1913, p. 79, 
 
CONTRA TO COKE'S DICTUM 125 
 
 Ripple — 1375). Even in these days two judges at Special 
 Term may render opposite decisions in cases involving the 
 same questions of fact and law, neither judge knowing 
 his colleague's opinion."* And frequently, for want of 
 citation of an authority, the Court may fall into error. "We 
 should not be too rigorous, therefore, in our criticism 6f the 
 bench and bar of the fifteenth century, considering the lim- 
 ited number of books available and the limited education 
 of the lawyers, for relying upon reasoning, unsupported 
 by precedent, or for falling victim to inaccurate citation 
 of authorities."" 
 
 Coke's reports contain no eases decided earlier than 
 the reigns of Elizabeth and James I, and we find in the 
 compendious index at the end of the Thomas and Fraser 
 edition (1826) not a single reference for the statements 
 concerning "Revocation and Submission," except Vynior's 
 Case, though "Arbitration and Award" cover over a page 
 and a half of notes. The high regard and respect for 
 Coke's learning and general accuracy which the Bar of 
 his times universally accorded him, doubtless gave to the 
 oiiter in Vynior's Case a standing which, as a matter 
 of accurate legal reasoning, it did not deserve, and which, 
 as we discover upon the basis of earlier precedents, it 
 should not have been accorded. Yet it is doubtful wheth- 
 er, before the publication of Klingelsmith's English trans- 
 lation of Statham (1915) and the publication of Braeton's 
 "Notes" (1887) any English lawyer would have had the 
 temerity to go back to Edward III, re-examine the cita- 
 
 "See New York Law Jownal, June 11, 1917. Decisions by Judges 
 Greenbaum and Bijur, upon substantially the same kind of case, 
 each reaching a conclusion directly opposite to the other's. Uni- 
 versal Film Manufacturing Co. v. Bell, 100 Misc. 281, 167 N, T. 
 Supp. 124; Message Photoplay Co. v. Bell, 100 Misc. 267, 167 N. T. 
 Supp. 129. 
 
 " We know that Bracton 's Note Book was not available for him, and 
 there is considerable doubt as to whether the Year Book containing 
 the decision of 49 Edw. Ill had yet been printed. See Soule: 
 "Year Book Bibliography," Harvard Lam Beview, Vol. XIV, No. 8, 
 pp. 557-387. 
 
126 COMMERCIAL ARBITRATION 
 
 tions in Vynior's Case, especially Erode v. de Bipple, and 
 distinguish between an obiter dictum and a decision by 
 my Lord Coke. Nevertheless, the references in Vynior's 
 Case to the five or six meager earlier authorities are a 
 compendious caution to later lawyers, warning them to 
 examine the earlier cases for a proper evaluation of the 
 dicta. In Vynior's Case, Brooke's "Abridgment" is the pri- 
 mary authority, and he, as we now see, was in error. Yet 
 March accepts this dictum and the reference to Brooke, 
 and cites both as authorities for the doctrine of the revo- 
 cability of a submission; and so, thanks to Coke and 
 March, Vynior's Case becomes the respected and control- 
 ling authority for a proposition which was not involved 
 in the ease. Thus, in 1806, before Chief Justice Ellen- 
 borough in Milne v. Gratrix, Vynior's Case is the only 
 case upon this point discussed by the lawyers and they 
 go so far as to concede, upon the basis of its authority, 
 that "At common law the bond (of arbitration) was 
 revocable" (a proposition for which Vynior is no au- 
 thority at all, for it will be recalled that the plaintiff was 
 permitted to recover upon the bond) ; and Lord Ellen- 
 borough goes even farther and holds not only that the 
 rule as stated was the rule at Common Law, but that even 
 under the statute of "William (9 and 10 "W. 3. e. 15 — ^by 
 which a submission was made a rule of court) "There is 
 nothing ... to make it irrevocable while it continues 
 executory." Thus is created Milne v. Gratrix — another 
 leading ease. 
 
 The judges were conscious of the unsoundness of the 
 rule, but they applied it, because it had become hoary with 
 antiquity. In Aston v. George,^^ Abbot, C. J., observes 
 that "there is a material distinction between a reference 
 under a Judge's order and a reference by deed," and 
 that "when the submission is revoked, there remains noth- 
 ing which can be made a rule of Court" while "a Judge's 
 
 ™2 Barnewall and Alderson 395. 
 
CONTRA TO COKE'S DICTUM 127 
 
 order, on the other hand, may be made a rule of court 
 without reference to any statute." Park, J., says in 
 Clapham v. Higham.:^'' "If there were any ground for 
 assisting the Plaintiff,, the Court would be disposed to 
 do so here." Nevertheless the Court declines to set aside 
 the revocation of a submission made under a judge's or- 
 der for no other reason than, as Burroughs says: "For 
 thirty years it has always been considered in Westminster- 
 hall that a submission may be revoked at any time before 
 the award is made. ' ' We may say with Coke himself : °* 
 "Here out (for want of a true and certain report) have 
 sprung many absurd and strange opinions, which being 
 carried about in a common charm, and fathered on grave 
 and reverend judges, many times with the multitude, and 
 sometimes with the learned, receive such allowance, as 
 either beguile or bedazzle their conceits and judgments." 
 Can anyone now believe that, if the early cases in Brac- 
 ton and those cited in Statham had been as accessible to 
 the Bar and to the Bench of those times as our early 
 New York decisions are to us, this error in legal rea- 
 soning would have so long thrived and bred its fertile 
 and hardy brood of dwarfs? Surely the "common charm" 
 of Yynior's Case is due to its having been "fathered" 
 on a "grave and reverend" judge, thus "beguiling and 
 bedazzling" even "the learned." 
 
 ■" 1 Bingham 87, at p. 90. 
 "Introduction to Part I, p. xxviL 
 
CHAPTER X 
 
 THE EFFECT OF COKE'S DICTUM 
 
 The first compendious abridgments of English Common 
 Law, comparable in any way with our modern digests, are 
 RoUe's reports in French, published in 1668, and Viner's 
 reports in English, published in 1747. Yet one searches 
 in vain under the title "Arbitrament" through either of 
 them for any reference to Vynior's Case, or for the doe- 
 trine of the revocability of the submission. Under the 
 title of "Authoritie" in RoUe, we find the following:^ 
 
 "D. Who can Revoke. 
 
 "1. If 2 submit themselves to the award of I. S., one 
 alone can revoke the submission, 28 H. 6.6.b adjudged, 21 
 H. 6. 30. Brooke on Abridgment, 5 B. 4, where he is bound 
 by bond to the award, but he will forfeit his bond by re- 
 voking, 8 E. 4, 10. b. 21 H. 6. 30. Co. 8. Vinior 82. Contra 
 5 B. 4. 3, where bound by bond. 
 
 "E. Who can revoke at law. 
 
 "2. If 2 on one side and one on the other submit them- 
 selves to the award of I. S., one of the said two can revoke 
 the submission vnthout the other. Contra 28 H. 6. 6.b." 
 
 Yet, as we have seen, careful examination of 28 H. 6. 6 b. 
 discloses that the case holds quite the reverse.'' 
 
 "3. If A and B submit themselves to the award of I. S. 
 and then before any award is rendered, revoke the au- 
 thority of the arbitrator, that is no revocation at law un- 
 
 »Eolle's "Abridgment," Vol. I, p. 331. 
 'Ante, pp. 122-124. 
 
 128 
 
EFFECT OF COKE'S DICTUM 129 
 
 less notice of this revocation is given the arbitrator. Co. 8. 
 Vinior 82. per Curiam 8 E. 4.10.b.21.b. " 
 
 Viner, tinder "Authority — What shall be said a good, 
 and what a bad, or void Authority," says this: * 
 
 "4. A man cannot make an authority, power or war- 
 rant vrr&vocdble, which by law, and in its own nature, 
 is revocable. 8 Eep. 82. a. Trin. 7 Jac. resolved in Vinyor's 
 Case." 
 
 The reporters of these days thus treated Vynior's Case 
 as an authority on "Authority," rather than on "Ar- 
 bitration." The primary difficulty in these times was in 
 the application of the doctrines of authority to other fields. 
 We must recall that neither Viner, Eolle, Brooke, Fitz- 
 herbert or Statham knew anything of the subject of Agen- 
 cy or Contract ; they understand letters of attorney to make 
 livery of seizin, and the like. 
 
 Lord Mansfield naturally had a surer grip. In 1757 
 he says:* "Awards are now considered with greater lati- 
 tude and less strictness, than they were formerly. And it 
 is right that they should be liberally construed; because 
 they are made by judges of the parties oivn choosing. 
 And this is often (as it is here), in cases of small conse- 
 quence, where the play is not worth the candle." And 
 in another case: "On a dispute about a church-rate, one 
 party offered a submission: But it was contended, that 
 the matter being originally of ecclesiastical cognizance, 
 they should go for a definitive sentence into that court. 
 Lord Mansfield — Is not a submission stronger than any 
 sentence ? If they will not take a submission offered, with 
 payment of full costs, I will consider of it this time 
 twelve-month."^ 
 
 The difficulty of the early attempts to reason by an- 
 alogy from the subject of "powers of attorneys" is no- 
 
 • Viner 's "Abridgment," Vol. 3, p. 417. 
 *EawMns v. Colclough, 1 Burrow 275, at p. 277. 
 = 1 Lofft's Eep. 426. 
 
130 COMMERCIAL ARBITRATION 
 
 where better illustrated than in a case reported by Ven- 
 tris° (Trippet v. Eyre) 1689, in Trinity Term (4 Jae. 
 II). Two arbitrators named in a deed of submission hav- 
 ing failed to agree, they named an umpire, and when he 
 failed to serve, they named another. Upon a suit upon 
 the bond accompanying the submission for the penalty 
 of £300, the court allowed a recovery. The defendant 
 pleaded that the arbitrators having appointed one Jessup 
 as umpire, and said Jessup having refused to serve, they 
 had appointed one Clark; in consequence, having once 
 exercised their power, the arbitrators could not exercise 
 it again. Here is a clue to the reasoning of the Bar and 
 judges of this day. Powell, Rokeby and Ventris were in 
 favor of the plaintiff. PoUexfen, Chief Justice, was for 
 the defendant. 
 
 "But it is objected," reads the report, "that the Arbi- 
 trators here have executed their Authority, and 'tis done 
 as fully as can be on their Parts, and therefore they 
 have no Power to name any other: the Condition empow- 
 ered them to name one, but not to name a second." To 
 which it was answered: " 'Tis true, when an Authority 
 is once fully executed, the Power is determined ; but here, 
 admitting it to be an Authority (which Ventris said it 
 was not properly to be called so, there "being no express 
 Authority given to the Arbitrators, but 'tis rather a De- 
 scription or Qualification of the Person which is to make 
 the Award ut supra) ' yet there is no compleat Execu- 
 tion." Thereupon the learned judges discuss what tran- 
 spires in law in the ease of a "Letter of Attorney be to de- 
 liver Seizin, and the Attorney deliver Seizin within the 
 View, which is no good Execution of his Authority" and 
 they say: "Yet sure that does not hinder him from de- 
 livering Seizin upon the Land," etc. And accordingly, "it 
 was surely the Parties Meaning, if the Arbitrators named 
 
 »2 Ventris 113. 
 ' Italics ours. 
 
EFFECT OF COKE'S DICTUM 131 
 
 a Man that rejected the Umpirage, that this should not 
 conclude them from naming another;" and so gravely 
 they conclude that the nomination of Jessup was not a 
 nomination at all, but a mere proposal. Yet for two pages 
 or more the judges labor with each other to determine 
 whether there might not be two awards. Finally the 
 Chief Justice concludes the discussion with this: "No 
 Case could be put that where a Man that was vested with 
 a bare Authority, his Denial or Refusal to execute it could 
 conclude him; but that notwithstanding he might execute 
 his Authority; but if he makes a void or insufficient Exe- 
 cution, he may do it over again. ' ' In the days when prop- 
 erty rights were chiefly in land, the making delivery of 
 seizin by "letter of attorney" was serious business. Ob- 
 viously, the exercise of a power was something of grave 
 concern. Accordingly, once treat the appointment of an 
 arbitrator as the appointment of "an attorney" and all 
 the safe and prudent rules applicable to the creation or 
 exercise of powers of attorney came into the foreground 
 of legal thinking. So we find the judges in this case 
 (Trippei V. Eyre) in 1689 saying: "This is properly an 
 Authority in the Arbitrators; 'tis so taken in Vinyor's 
 Case in 8 Co. and is revocable as other. Authorities are." 
 
 That Coke's dictum in Vynior's Case is based upon the 
 theory of revocability of grants or powers not coupled 
 with an interest is further developed in the reading of 
 the discussion in Freeman's Reports 85, at p. 88, where 
 in Thomas v. Sorrell (1673) the Court considers whether 
 or not Letters Patent from the King to sell wine without 
 license is not destroyed by a subsequent general statute 
 of Parliament. Ellis argued that "all bare licences or 
 authorities were determined by the death of the party that 
 grants them: . . . But where an interest passes, or where 
 an authority is coupled with an interest, or where a licence 
 is executed, these do not determine by the death of the 
 party" and it is in this connection he says: "A bare 
 
132 COMMERCIAL ARBITRATION 
 
 authority, though it be made irrevocable, may be revoked" 
 and for this he cites Coke again: "8 Co. Viriior's Case." 
 "It is too often forgotten," says Maitland* "that, until 
 Elizabeth's reign, England was a thoroughly rustic king- 
 dom, and that trade with England was mainly in the 
 hands of foreigners. Also in medieval fairs, the assembled 
 merchants declared their own 'law merchant,' which was 
 considered to have a supernational validity." Thus, says 
 he, "In the reports of the Common Law courts it is late 
 in the day before we read of some mercantile usages which 
 can be traced far back in the statutes of Italian Cities." 
 The absurd extent to which the English law courts car- 
 ried this so-called "doctrine of revocability of a power 
 in its nature irrevocable" appears still further in Hide v. 
 Petit,' wherein a reference by consent of both parties 
 in an action in equity, confirmed by order of the Court, 
 is nevertheless held to be revocable. There we learn that 
 in a cause for "many years depending in court" (and 
 even in Parliament) "an order was made by consent of 
 both parties, to stand to the award of A. and B. JoUeis, 
 two eminent merchants;" the parties attending upon the 
 reference. "Petit perceiving that the JoUeis would con- 
 demn him by their award . . . under hand and seal re- 
 vokes the authority given to the arbitrators, and retracts 
 the submission;" nevertheless the arbitrators go on and 
 make their award. Though the case goes upon two grounds 
 — one "because some matters referred were not deter- 
 mined by the award," the Lord Chancellor (Bridgman), 
 assisted by Rainsford and Wild, J. J., was of opinion, in 
 the main, that "though it were a/n abuse of the court 
 in the defendant to retract his consent, after he had at- 
 tended the reference, having first subscribed the consent 
 under his hand ; yet such a consent, giving a bare authority 
 
 'Encyclopaedia Britannica, 11th Ed., Vol. 9, p. 605, art. "English 
 Law. ' ' 
 •Freeman's Ch. Eep. 133; 1 Ch. Cas. 185; 1670. Italics ours. 
 
EFFECT OF COKE'S DICTUM 133 
 
 only, vMs revocahle." (A consent in court to a reference 
 is revocable, because, forsooth, it is a "bare authority."^" 
 Here we find the Court declaring solemnly "That an 
 
 "The best CTiticism of this theory is to be found in Bell "Law 
 of Arbitration in Scotland," p. 267. He says "In its most im- 
 portant legal attributes, the contract of judicial reference is the 
 same, substantially, with the ordinary contract of submission." "I 
 am perfectly sensible that there is a difference between a judicial 
 reference and an ordinary private arbitration. But is it not still 
 a contract. And what is the contract? Instead of taking the chance 
 of the ordinary procedure of the Court, the parties agree that 
 the whole cause shall be determined by the judgment of a referee ap- 
 proved of by the Court. Is it not a bargain — a transaction — a binding 
 contract to that effect? What is it but a submission, taking effect by 
 contract in that particular form? The depending summons, and the 
 minute of judicial consent or request, with the sanction of the Court 
 interposed, constitute the written submission to which the statute of 
 Eegulations refers. The particular form, perhaps then unknown, sig- 
 nifies nothing. The substance of the thing, with suflScient form, is^ 
 quite clearly a submission, within the contemplation of the statute; 
 and that of the most authoritative nature, according to its principle; 
 the contract being entered into, solemnly, m the face of the Cowt, and 
 ratified by the express order of the Cowrt. The submission being 
 of the depending process, and emanating from the Court, the award 
 must come back there, for the formal judgment on the summons, 
 and warrant for execution. But still, the contract of submission is 
 complete, and the Court can have no power to infringe the con- 
 tract. The powers of the Court, as to any matter of judgment on 
 the merits of the cause, have been entirely transferred by the par- 
 ties, with the sanction of the Court, to another tribunal of their 
 own selection; and all that the Court have to do, is to see that due 
 execution of that contract shall be given. It is impossible that, 
 consistently with this principle, the Court can inquire iito the 
 grounds of the referee's judgment, either in law or in fact, when 
 there is a general reference of the cause. That would just be to 
 break up the contract, and take the arbiter's duty, who had been 
 chosen by the parties for their judge, upon ourselves. And, there- 
 fore, I cannot give any weight to the general reasoning here em- 
 ployed, as to the supposed distinction, g:enerally, between a judicial 
 reference and an extra-judicial arbitration. Both are submissions, 
 making contract for judgment; and surely the judicial contract ia 
 the more sacred of the two." Per L. Moncreifl, in Brakenrig (Dec. 
 17, 1841, 4 D. 274). ItaUcs ours. 
 
 "When parties have by contract agreed to a judicial reference, 
 that is a contract like any other contract, and the Court has no 
 more authority to put an end to that contract than they would have 
 to put an end to a contract for the sale of an estate or the lease of 
 a house: it is irrevocably binding upon the parties, unless they have 
 stipulated some mode by which they may get out of that binding 
 contract." Per L. Cranworth, C, in W^er & Co. August 14, 
 1855, 2 Macq. 424, at p. 829. 
 
134 COMMERCIAL ARBITRATION 
 
 authority in its nature is revocable by law, though referred 
 by order of court." So indignant, however, is the Court 
 at the conduct of the defendant "for his abuse of the 
 court in retracting his consent" that it promptly issues 
 an attachment against him to show cause why he should 
 not be punished for contempt — or, as it is reported in 
 Ch. Cases (p. 185) — "it was an abuse to the court, as 
 it was conceived, to revoke it, for which the court might 
 justly lay the party by the heels." The doctrine of estop- 
 pel seems not to have been discussed or considered in 
 the case. Yet in Bishop v. Bishop, ^^ where an award was 
 made by Mr. Justice Crook on a reference of both par- 
 ties, it was held (Sir Edward Littleton, Lord Keeper) 
 that if one of the parties to the award performed his 
 part, the Court of Chancery would compel the other to 
 perform his, even though the arbitrament was not made 
 by direction of the Court. 
 
 Two years after Hide v. Petit, a Bill is filed in Chan- 
 cery ^^ and, an account being directed, the matter is re- 
 ferred to one Phillips "by Consent of all Parties, and his 
 Award to be conclusive." Phillips makes his award and 
 the defeated party takes exceptions ; but the Court ^' held : 
 "That the Parties having bound themselves by Consent, 
 they would not look back into the Award, and thereupon 
 it was confirmed by the Lord Chancellor."^* And in 
 1685 ^^ we discover Norton v. Mascall concealed in the 
 comparatively unknown "Reports of Cases in Chancery," 
 Vol. II, at p. 304 — a case begun in the reign of Charles II 
 and running over into the reign of King James II — ^in 
 which the following appears: 
 
 A bill is filed in chancery to secure and enforce the 
 performance of an award made by arbitrators upon "a 
 
 "15 Car. I, f. 59, 1641. 
 
 "Nelson's Ch. Eep. 83, 1673. 
 
 " See Foss, Vol. VII, p. 6. 
 
 "But this case did not appear in print until 1717. 
 
 "36 Car. 2. 
 
EFFECT OF COKE'S DICTUM 135 
 
 voluntary submission." (Nothing is said about a deed 
 of submission or a bond with penalty — apparently it is 
 a mere submission by contract — though probably in writ- 
 ing.) The defendant "insisted, It being a voluntary Sub- 
 mission of the parties, and the Reference not directed 
 by this Court, the Award was void, and ought not to be 
 performed." And, accordingly, he demurred to the Bill. 
 The Master of the Eolls, Lord Guilford, "ordered Presi- 
 dents, and upon reading of the Award, declared, he saw 
 no Cause to relieve the PlaintifE, but dismissed the Bill." 
 But the case was "Re-heard by the Lord Chancellor Jef- 
 feries, who declared, he saw no cause why the said Award 
 should he impeached; but it was fit that the same should 
 he performed, heing in part executed and assented unto, 
 and decreed the same to stand confirmed, and the Defend- 
 ant to perform the sam^." 
 
 The Chancellor Jefferies here referred to is none other 
 than the notorious Baron Jeffreys, whom a contemporary 
 English judge, Mr. Justice Foster, described as the "very 
 worst judge that ever disgraced Westminster Hall;" ^° and 
 the decision is rendered almost contemporaneously with 
 Jeffreys' holding of the "bloody assizes," the conduct of 
 which branded his name with "indelible infamy."^' 
 Though the decision in the case, as we now perceive, is a 
 clear and unmistakably sound application to the subject 
 of arbitrament of the equitable remedy of specific per- 
 formance, it reposes quietly in this little used and com- 
 paratively unknown volume of ' ' English Chancery Cases ' ' 
 and goes down the centuries unheralded and unsung of 
 reporters or digest-makers, while a mere dictum of my 
 Lord Coke is elevated to the sanctity of settled and con- 
 trolling doctrine. But my Lord Coke was "the greatest 
 lawyer of his day" — his success in Shelly 's Case brought 
 
 "See Foss, Vol. VII, p. 226. 
 
 " See EncyclopsBdia Britannica, 11th ed., Vol. 15, p. 309. 
 
136 X)MMERCIAL ARBITRATION 
 
 him a practice "never before equalled." ^® The reputation 
 of Coke's Reports was so great, Soule tells us, "that for 
 a long time they were cited simply as 'The Reports' 
 ('Rep')."^° Yet with all due respect — even homage — 
 for Coke's learning, he, too, had his faults. He was 
 intensely arbitrary, exceedingly brutal in speech, and if 
 we are to believe Bacon, his intense rival, wandered from 
 the points of a case and often talked too much. Bacon 
 once wrote Coke: "In discourse you delight to speak 
 too much, not to hear other men. This, some say, be- 
 comes a pleader, not a judge ; for by this sometimes your 
 affections are entangled with a love of your own argu- 
 ments, though they be the weaker, and rejecting of those 
 which, when your affections were settled, your own judg- 
 ment would allow for strongest. Thus while you speak 
 in your own element, the law, no man ordinarily equals 
 you; but when you wander, as you often delight to do, 
 you wander indeed, and give never such satisfaction as the 
 curious time requires."^" Coke, it will be recalled, re- 
 sisted the power of Chancery to touch any cause in the 
 Courts of Common Law and even encouraged indictments 
 of those who applied to the equity courts for relief. In 
 one ease pending in the Common Law courts he indicted 
 the counsel and solicitor to the parties and even the Mas- 
 ter in Chancery to whom it had been referred."^ It re- 
 quired an appeal to the King to reverse him and to con- 
 firm the Court of Chancery in all the powers which it 
 claimed, which decision is acted upon, as Foss says, "to 
 this day."^^ "The independence of his conduct as a 
 judge" was "not unmixed with the baser elements of 
 prejudice and vulgar love of authority." "Full of an 
 extreme reverence for the Common Law which he knew 
 so well, he defended it alike against the court of chan- 
 
 " Encyclopfedia Britannica, 11th Ed., Vol. 6, p. 654. 
 "• Soule 'b Lawyers' Eeference Manual, p. 92. 
 »Foss: "Judges of England," Vol. VI, pp. 118-119. 
 "Ibid., p. 117. 
 
EFFECT OF COKE'S DICTUM 13T 
 
 eery, the ecclesiastical courts, and the royal prerogative" 
 and the verdict of history upon this score is that "he 
 sought to prevent the interference of the court of chan- 
 cery with even the unjust decisions af the other courts." ^^ 
 The common bond between equity and the lex mercatoria 
 has already been indicated by Carter in his "History of 
 English Law."^* 
 
 We have but to contrast the liberating influence of 
 Lord Mansfield with the conservative tendencies of Coke 
 to realize why, in Coke's time, the strict adherence to 
 the forms of the Common Law retarded the development 
 of such simple principles as estoppel, mutual assent, and 
 the specific performance of contracts. 
 
 Jeffreys, whose understanding of equity principles and 
 procedure is shown in Norton v. Mascail to be keener than 
 Coke's, secures for his decisions no such respect or authority 
 as is freely accorded to Coke — ^thus contemporary history 
 punishes the unscrupulous intellect by burying its good and 
 exposing its worst. "The evil that men do lives after 
 them, the good is oft interred with their bones." 
 
 Nor was Coke always accurate. Says Veeder: "Some- 
 times, as in Gage 's case,^* he gives a wrong account of the 
 actual decision. Moreover the authorities which he cites 
 do not always sustain his conclusions.^^ This fault, in- 
 deed, runs through all his writings and has carried in its 
 train some unfortunate consequences."^* The similarity 
 between the error of Coke's dictum in the field of com- 
 mercial arbitration with his error in Pinnell's case"' is 
 most striking. Here, says Veeder,"' "iy giving a mere 
 
 " Encyolopsedia Britannica, 11th Ed., Vol. 6, p. 654. Italics ours. 
 
 " See ante, pp. 79-80. 
 
 «5 Eep. 45b; see 1 Salk. 53, and Will. 569. 
 
 *See Jones on Bailments 41, as to Southcote's case, 4 Eep. 83b, 
 and 1 Inst. 89a; Stephen's "History of Criminal Law," ii, 205. 
 
 "Veeder: "The English Reports, 1537-1865," Vol. II, "Select 
 Essays in Anglo-American Legal History," p. 132. 
 
 "5 Eep. 117a; Co. Litt. 212b; see Foakes v. Beer, 9 App. Cas. 605. 
 
 "Veeder: "The English Eeports, 1537-1865," Vol. II, "Select 
 
138 COMMERCIAL ARBITRATION 
 
 dictum the form and effect of cm actual decision upon a 
 point in issue he fixed upon English law the nde that 
 a creditor who, on the day his debt falls due, accepts a 
 smaller sum in satisfaction of the whole, but executes no 
 deed of acquittance, is not bound by his agreement." 
 With the consequence, as Sir George Jessel said in Coul- 
 dery v. Bartrum,'^ that, according to English law, "a 
 creditor might accept anything in satisfaction of his debt 
 except a less amount of money. He might take a horse, 
 or a canary, or a tomtit if he chose, and that was accord 
 and satisfaction; but, by a most extraordinary peculiarity 
 of the English Common Law, he could not take 19s 6d in the 
 pound. " " Yet, ' ' says Veeder, ' ' the House of Lords in 1884 
 held that the error was so firmly established that it did not 
 come within their province to correct it."^° And in the 
 limitations of the rule and some of the distinctions en- 
 grafted upon it by judges who tried to limit the operation 
 of what they believed to be an erroneous principle, we 
 shall find again a striking analogy with the experiences 
 resulting from Coke's erroneous dictum in Vynior's Case. 
 "I am afraid," said Chief Justice Best, "we should get 
 rid of a good deal of what is considered law in West- 
 minster Hall if what Lord Coke says without authority 
 is not law. ' ' ^^ This is not the only incident in the evolu- 
 tion of mercantile law that has been difficult of under- 
 standing to business men. In Gierke v. Martin, the great 
 Lord Holt made what Cranch''' calls "a hasty, intem- 
 perate decision . . . which was acquiesced in by the other 
 judges, in consequence of his overbearing authority, 
 
 Essays in Anglo-American Legal History," pp. 132-133. Italics 
 ours. 
 
 " 19 Ch. Div. 399. 
 
 "Veeder: "The EngUsh Eeports, 1S37-1865," Vol. H, "Select 
 Essays in Anglo-American Legal History," p. 133. 
 
 "Italics ours. 
 
 "Crancli: "Promissory Notes before and after Lord Holt," 
 Vol. Ill, "Select Essays in Anglo-American Legal History," p. 92. 
 
EFFECT OF COKE'S DICTUM 139 
 
 'which made others yield to him;' and that he so 'per- 
 tinaciously' adhered to his opinion, as to render it neces- 
 sary to apply to parliament to overrule him."*^ In 
 this connection, it is interesting to discover that the old 
 judges were not free from human infirmity. In Gierke 
 V. Martin the report indicates that for some reason or 
 other Lord Holt was exceedingly irritated "with the gold- 
 smiths of Lombard Street, and that his mind was not in 
 a proper state for calm deliberation and sound judg- 
 ment."" 
 
 Eeference has already been made to the fact that Coke's 
 reports were held in so high an estimation by his con- 
 temporaries that they were cited simply as "The Re- 
 ports."^'* In fact, during the period when they were 
 being issued no others appeared, "as it became all the 
 rest of the lawyers to be silent whilst their oracle was 
 speaking."^" Coke's ultimate suspension from judicial 
 office by James I, it will be recalled, was accompanied by 
 a regal command to "consider and revise his reports."" 
 Notwithstanding this, he reported only five trivial errors. 
 His reports, in the opinion of Veeder, "are not reports 
 
 " Lord Holt held, overruling all previous cases and totally chang- 
 ing the law as to promissory notes, admitting inland bills of ex- 
 change to be within the custom of merchants, but denying that 
 privilege to promissory notes. It took the statute of Anne to re- 
 verse Lord Holt and confirm the older authorities shaken by his 
 decision that notes in writing were negotiable instruments governed 
 by the Law Merchant. Says Cranch: "By comparing this act with 
 the cases decided prior to Gierke v. Martin, it will be found to con- 
 tain no principles but such as had been fully recognised by the 
 courts of law. It follows, therefore, that it was passed simply to 
 restore the old order of things, which had been disturbed by Lord 
 Holt." 
 
 "Cranch: "Promissory Notes before and after Lord Holt," 
 Vol. Ill, "Select Essays in Anglo-American Legal History," p. 91. 
 
 =' Veeder: "The English Reports, 1537-1865," Vol. II, "Select 
 Essays in Anglo-American Legal History," p. 130. 
 
 "5 Mod. viii. 
 
 "Veeder: "The English Reports, 1537-1865," Vol. II, "Select 
 Essays in Anglo-American Legal History," p. 131. 
 
140 COMMERCIAL ARBITRATION 
 
 at all in the strict sense of the term." Veeder calls our 
 attention to the fact that Coke himself says in his preface, 
 "that he prepared his reports not merely for citation in 
 court but also for educational purposes; and to a large 
 extent, though just how far it is impossible to say, they 
 contain his own statement of the law. . . . Since, to Coke's 
 mind, the art of pleading was the necessary foundation 
 of ail accurate knowledge of the Common Law, the plead- 
 ings are fully set out, not only for a proper understanding 
 of the case but for the instruction of students as weW.'"* 
 He himself describes his own method:'* "And now that 
 I have taken upon me to make a report of their argu- 
 ments, I ought to do the same as truly, fully, and sincerely 
 as possibly I can. Howbeit, seeing that almost every Judge 
 had in the course of his argument a peculiar method, 
 and I must only hold myself to one, I shall give no just 
 offense to any, if I challenge that which of right is due 
 to every reporter, that is, to reduce the sum and effect 
 of all to such a method, as, upon consideration had of all 
 the arguments, the reporter himself thinketh to be fittest 
 and clearest for the right understanding of the true rea- 
 son and causes of the judgment and resolution of the 
 case in question." Yet, says Veeder, "His method of pre- 
 senting what was decided is, however, disorderly in the 
 extreme. Throughout all parts of the report, but par- 
 ticularly in giving the resolutions of the judges, his in- 
 exhaustible learning breaks forth; 'one case is followed 
 by another, quotation leads to quotation, illustration opens 
 to further illustration, and successive inference is made 
 the basis for new conclusion ; every part, moreover, being 
 laden with conclusions and exceptions, or protected in a 
 labyrinth of parentheses, until order, precision, and often 
 clearness itself is lost in the perplexing though imposing 
 
 "Veeder: "The English Eeports, 1537-1865," Vol. II, "Select 
 Essays in Anglo- American Legal History," p. 131. Italics ours. 
 " Calvin's Case, 7 Kep. 4a. 
 
EFFECT OF COKE'S DICTUM 141 
 
 array.' ".*" Yet he assures the reader that "although he 
 may not, at any one time, reach the meaning of his author, 
 yet at some other time and in some other place his doubts 
 will be cleared." 
 
 "Veeder: "The EngUsh Eeports, 1537-1865," VoL U, "Select 
 Kssaya in Anglo-American Legal History," p. 132. 
 
CHAPTER XI 
 WHEREIN LORD COKE'S DICTUM IS NOT FOLLOWED 
 
 Another great intellect succeeded Coke as Chief Jus- 
 tice of King's Bench. Vynior's Case was decided before 
 Coke, as Chief Justice of the Court of Common Pleas. 
 Afterwards he became Chief Justice of King's Bench. 
 He was succeeded when Sir Henry Montague took the of- 
 fice in 1616. Four years later, in Trinity Term (18 Jac), 
 there came before King's Bench an action on the case 
 in assumpsit to abide by the award of J. S. Sir Montague, 
 before his elevation to the bench, had for many years 
 been Eecorder of the City of London, and upon his resig- 
 nation from that position, the Corporation of London 
 presented him with two hundred double sovereigns "as 
 a thankful remembrance for his many careful endeavors 
 for the city."^ While passing through this experience 
 he must have seen something of the merchants' boards and 
 tribunals of arbitration then and for a long time previous 
 in operation in London. It is no surprise, therefore, to 
 find him recording as law what is even for our times a 
 very clear statement of the principles of contract ap- 
 plicable to submissions — especially the principle of "mu- 
 tual assent" — principles so much a matter of common 
 acceptation in our day that it is a constant source of sur- 
 prise to find them so little applied — or even suggested — 
 in Coke's day. 
 
 "It was Resolved," runs the report in old French, by 
 the whole court, "that mutual 'promises to abide hy the 
 award of certam men are good enough to hind them to 
 
 'Fobs: "Judges of England," Vol. VI, p. 168. 
 
 142 
 
WHEREIN DICTUM IS NOT FOLLOWED 143 
 
 abide by the agreement and that though no money vms 
 due at the time of the promise." Yet Dodridge, J., said, 
 in dissent, "That, in this case, if the award be that one 
 of the parties shall pay money and the other shall do 
 something this is not a good award." 
 
 And so is Ashton, the judge, overruled and Pole, the 
 lawyer, vindicated.'' Yet this case is nowhere abridged, 
 nor is it heralded as a leading case. Quite by accident 
 in our search we found it in the quaint original French 
 in 2 Rolle's Reports, at p. 194, under the title of "Browne 
 V. Dovming." March does not refer to it; neither Viner 
 nor RoUe abridges it, nor is it to be found in any of the 
 text writers upon the subject. But in point of legal value 
 — Vynior was at Common Pleas and was earlier in date 
 — it is superior as a binding precedent to Vynior's Case. 
 
 Earlier still (1617), in King's Bench, Montague re- 
 fuses a writ of prohibition to a plaintiff who seeks to 
 set aside an award made by arbitrators upon the ground 
 that he has newly discovered documents "which had come 
 into his hands," justifying the setting aside of the award. 
 Per Curia (Sir Henry Montague, C. J., John Croke, John 
 Doderidge and Robert Houghton') decides: 
 
 "An arbitrament is res judicata" and "it is the set- 
 tlement of all controversies and if prohibition were al- 
 lowed (in this case) then every award could be put to 
 question." {Pur ceo que un Arbitrem^ent est res judicata, 
 d; est fine de controversies, & si ceo serra suffer chescun 
 agard poet estre trahe en question.) This case, also, we 
 found by accident, in 1 RoUe 380, decided 14 Jae. Banco 
 Rex. Easter Term, under the title "Jones vs. ." 
 
 In 1761 we come to a decision rendered in King's Bench 
 while Lord Mansfield presided in that court. In Bex v. 
 Wheeler * it appeared that Wheeler had bought two pipes 
 
 ^Ante, pp. 122-124. 
 
 • See Fobs, Vol. VI, p. 14. 
 
 *3 Burr. 1257. 
 
144. COMMERCIAL ARBITRATION 
 
 of wine from one Tulk, and Wheeler asserted that this 
 wine was adulterated and bad, and therefore refused to 
 pay for it. Whereupon Tulk sued him. At the trial, 
 as the report says, "the matter was, hy consent of both 
 parties, (probably, to conceal the secrets of the trade, and 
 the nature and degree of mixing), referred to the arbi- 
 tration of one Mr. Charles Corderoy; Wheeler consented 
 to abide by his award, and Not to hring any hill in Equity." 
 (The italics are as they appear in the original report.) 
 This agreement was made a rule of court. Corderoy, the 
 arbitrator, decided that Wheeler should pay Tulk about 
 £20 for the wine. Wheeler refused to abide by this award. 
 Instead, he moved to set aside the award. The Court heard 
 him and refused to set aside the award, and then he paid 
 the money. But he proceeded to the Court of Chancery, 
 and, as the decision tells us, "was so ill advised as to 
 bring a long bill" to restrain the enforcement of the 
 award. Now reads the report: Thereupon, this Court 
 brought him for contempt. On the brink of being sent 
 to jail, he came to terms, paid all the costs and all the out- 
 of-pocket expenses of Tulk amounting to £87 4 shillings or 
 over four times the amount of the award. The Court 
 thought this was punishment enough; that "he had smart- 
 ed severely: and yet, as his contempt was so obstinate, 
 they did not care that a slight sentence should stand upon 
 their records."" Moreover, they thought "that the attor- 
 ney and counsel were equally guilty of the contempt, and 
 more criminal ; and if it ever happened again, they would 
 proceed against them."^ The reporter's admonition in 
 the note has high moral value: "This case is a strong 
 proof how far a contentious spirit, with bad advice, may 
 go." And: "No man would accept of being an arbi- 
 trator, if he was liable to be harassed with a Chancery-suit 
 for his pains." And this case laier on is referred to as 
 ''Italics the Court's. 
 
WHEREIN DICTUM IS NOT FOLLOWED 145 
 
 authority in DavUa v. Almanza,' where a matter having 
 been referred by the Court at nisi prius to the three fore- 
 men of the jury, and, before the award was made, one of 
 the parties having served the arbitrators with a subpoena 
 out of Chancery, "which hindered the proceeding to make 
 the award," the Court held this a breach of the rule, and 
 granted an attachment against the offender. 
 
 But even in Coke's days, though some of the judges 
 were highly technical, it will be observed that not one 
 of them finds anything contrary to public policy or of the 
 nature of "ousting the courts of jurisdiction" in these ar- 
 bitraments or agreements to arbitrate. With all his jeal- 
 ous preservation of the Common Law court's jurisdiction 
 ■ — fighting even the King for the maintenance of its power 
 — Coke permits the plaintiff to recover upon an arbitration 
 bond where the defendant revokes the submission. The 
 attitude toward arbitration of all the judges is throughout 
 most friendly. Their difiSculties are difficulties of legal rea- 
 soning and of procedural machinery, not of equitable pur- 
 pose. All things considered, they produced fair results. 
 You could plead in bar to trespass that there was an ar- 
 bitration pending. If the award was made, it was res 
 judicata. If the defendant broke his obligation to submit 
 to arbitration, whether by revocation or otherwise, you 
 had your bond — ^which was a very valuable remedy. You 
 could in those days fix the penalty and the bond in any 
 sum adequate to protect your client's rights in case the 
 other party breached, and if he revoked the submission or 
 interfered with the submission, he thereby made your bond 
 enforceable. Thus in Noble and Harris (reported in III 
 Keble's Reports 745—29 Car. II B. R. 1688), the plaintiff 
 sued on a bond, given "on condition to perform an 
 Award." The defendant pleaded no award. The plain- 
 tiff then set out the award and assigned the breach. The 
 defendant rejoined that before the award was made, the 
 
 • 1 Salt. 73. 
 
146 COMMERCIAL ARBITRATION 
 
 defendant revoked and the plaintiff had consented to the 
 revocation. Upon the plaintiff's demurrer, it was held 
 per Curiam — "the Revocation heing a breach, its not aided 
 hy consent or agreement after, hut if it had heen said to 
 he revoked hy consent of the Plaintiff, the penalty had heen 
 saved." Thus, Judgment for the Plaihtiff on the Bond. 
 Not even subsequent acquiescence in the revocation by the 
 plaintiff could save the defendant from the penalty on 
 his bond; only revocation by mutual consent could pro- 
 duce such a result. 
 
 In those days, fines and penalties were enforceable and 
 quite the m^e for obtaining satisfaction for breaches of 
 obligations. "When fines and penalties were abolished — 
 "but that's another story." 
 
 We may now recapitulate the elements which furnish 
 explanation for this case of "arrested development" in 
 our Common Law. 
 
 1. A mere ohiter dictum, by process of repetition, be- 
 comes a doctrine of the law. 
 
 2. It becomes doctrine by virtue of the circumstance 
 that (a) March, the first text-writer on the subject and 
 almost every subsequent text-writer states the dictum as 
 though it were final and settled doctrine; and (b) the case 
 in which the dictum is uttered is dignified out of all 
 proportion by the fact that Coke decided it and reported 
 it as a leading case. 
 
 3. No comparative study is made of the earlier au- 
 thorities. 
 
 4. Though there are earlier eases of clear and convincing 
 reasoning and equal authority (especially Erode v. de Bip- 
 ple, 49 Edw. Ill) they are either wholly ignored by March 
 or merely cited without consideration by Coke in 7 Jac. 1 
 {Vynior's Case). 
 
 5. Though there were three abridgments of the Year 
 Books — Statham, Brooke, and Fitzherbert — March and 
 Coke refer only to Brooke. 
 
iWHEREIN DICTUM IS NOT FOLLOWED 147 
 
 6. Brooke does not disclose the case in 49 Edw. Ill 
 {Erode v. de Bipple) but Statham and Fitzherbert do. 
 
 7. Of all the eases cited for the obiter dictum in Vynior's 
 Case, only one (28 Henry 6) supports it and at least two 
 are against. 
 
 8. The original error in reasoning occurs in 28 Henry 
 6, where Pole, the advocate, as we now see, is right, and 
 Ashton, the judge, is wrong; but neither refers to the 
 earlier cases. 
 
 9. Bracton's Notes, which would have disclosed still 
 earlier precedents contra to the dictum in Vynior and the 
 statement in March, had not yet appeared in print. 
 
 10. At the time of 7 Jac. the Courts were concerned 
 with such matters as seisin, feoffment, seal and the like, 
 and while deeds and bonds and indentures had value, ex- 
 ecutory contracts resting upon mutual consent were treat- 
 ed as ex nuda pacta. 
 
 11. The administration of law was enmeshed in a tan- 
 gle of formal pleading, and an action for damages for 
 breach of simple contract was as yet unknown. 
 
 12. The English judges had not yet come in contact with 
 the customs and experiences of merchants (Lord Mans- 
 field came more than a century later) and so that which 
 was of daily occurrence in the merchants' courts or fairs 
 was as yet no part of the English common law. 
 
 13. The respect for precedent and form precluded the 
 scientific re-study or re-examination of the law under new 
 conditions. 
 
 14. The art of reporting was in its infancy, and judges, 
 as well as lawyers, suffered for want of accessible and 
 accurate reports or digests. 
 
 15. Later precedents of greater binding authority were 
 ignored by abridgers and buried in forgotten reports. 
 
CHAPTER XII 
 THE PASSING OF PINES AND PENALTIES 
 
 To establish damages for the breach of a contract re- 
 quires detailed proof of actual injury, and under the strict 
 rules of evidence the injured party ofttimes fails to re- 
 cover all that he is entitled to for want of 'technical proof. 
 This practical difiSculty led very early in the making of 
 contracts to the fixing of a penal sum or fine which the 
 parties obligated themselves to pay each to the other, in 
 the event of a breach ; that is to say, if A agreed to build 
 a house for B and to have it finished by Michaelmas, A 
 would agree that in case the building was not completed 
 by that day he would pay a penalty of £5 per day. Be- 
 fore the statute of 8 and 9 William III, recovery was al- 
 lowed for whatever penalty was fixed in such an agree- 
 ment.* As the practice grew, penalties became the com- 
 mon form of fixing damages, and, regardless of the actual 
 harm that resulted from a breach, the penalty was en- 
 forceable. Thus though A's failure to finish the house by 
 Michaelmas might have caused no real damage to B at 
 all, nevertheless the penalty would be recoverable. 
 
 Gradually public opinion began to discountenance this 
 method of fixing damages by way of punishment. The 
 idea of recompense, rather than penalty, was more native 
 to English justice. Accordingly, courts of equity began 
 to accord relief; that is to say, in cases of fraud or ex- 
 tremity or accident, they would limit the strictly legal 
 remedy for the penalty so as to cover the actual damages 
 
 *See Whitfieia v. Levy, 35 N. J. Law Eeports 149. 
 
 148 
 
THE PASSING OF FINES AND PENALTIES 149 
 
 sustained by the injured pa^ty.^ This was permitting 
 compensation on what was called an issue of qiumtum 
 damnificaius? The statute of 8 and 9 William III was 
 intended to limit the injured party to recovery of actual 
 damages arising out of default in the performance of an 
 agreement regardless of the penal sum fixed in the con- 
 tract, so that in a suit at law after the enactraent of this 
 statute the injured party would secure substantially the 
 same measure of relief in a suit at law upon the contract 
 as might have been obtained by the intervention of a 
 court of equity. In short, the purpose of the statute was to 
 harmonize the law as it existed in the Courts of Chancery 
 with that of the Common Law Courts and to limit the 
 plaintiff to his actual damages, in an action of debt for 
 the penalty, the measure of recovery being neither advanced 
 to nor limited by the sum named as a penalty. What was 
 recovered by the plaintiff was his actual damages, whether 
 they were greater or less than the penalty.* Later on the 
 courts held that penalties fixed in an agreement or bond 
 were against public policy, and even where the parties did 
 not use the term "penalty" but used the words "liqui- 
 dated damages," the courts would not enforce the clause. 
 If the court could see from the whole instrument taken 
 together that there was no intention that the entire sum 
 should be paid absolutely on the non-performance of any 
 of the stipulations of the debt, they would reject the 
 words and consider it as being in the nature of a penalty 
 only.^ And conversely, even if the parties used the term 
 "penalty," but it was clear that it was intended to be 
 
 'Gary's E. 1; Harvard Law Tracts 431. 
 
 "2 Story's Eq. Jur., §1314. The earlier cases are collected in 
 an elaborate note by Mr. Evans in his edition of the English stat- 
 utes; "Evans' Statutes," Vol. 3, p. 324. 
 
 * Winter v. Trimmer, 1 Wm. Black, 395; Harrison v. Wright, 13 
 East 343; Zowe v. Peers, 4 Burr. 2225; 1 Saund. 58 c. 
 
 " Parke, B., in Qreen v. Price, 13 M. & W. 695, at p. 701 ; Kemble v. 
 Farren, 6 Bing. 141; Horner v. FUntoff, 9 M. & W. 678; Shiell v. 
 M'Nitt, 9 Paige 101. 
 
150 COMMERCIAL ARBITRATION 
 
 liquidated damages, they would permit the recovery. Thus 
 in Sainter v. Ferguson,^ a doctor agreed not to practice 
 at M. or within a radius of seven miles of M., "under a 
 penalty of £500." The Court held that the £500 was not 
 to be treated as a penalty, but as liquidated damages, Colt- 
 man, J., saying " Although the word 'penalty,' which would 
 prima facie exclude the notion of stipulated damages, is 
 used here, yet we must look at the nature of the agree- 
 ment, and the surrounding circumstances, to see whether 
 the parties intended the sum mentioned to be a penalty 
 or stipulated damages. Considering the nature of this 
 agreement, and the difficulty the plaintiff would be under 
 in showing what specific damage he had sustained from 
 the defendant's breach of it, I think we can only reasonably 
 construe it to be a contract for stipulated and ascertained 
 damages. ' ' 
 
 Now there was nothing more difficult for the old 
 draughtsmen of contracts in safeguarding their clients' 
 interests than to draw an agreement of arbitration which 
 would be effective in case of a breach. If A and B agreed 
 to submit to arbitration a difference between them, in case 
 B revoked the arbitration what were A's damages? The 
 very subject matter of the controversy was in dispute. If 
 A claimed that B owed him a thousand pounds and B 
 claimed that he did not, of course, if B revoked the ar- 
 bitration A 's damages could hardly be treated as one thou- 
 sand pounds. Whether or not he was entitled to the thou- 
 sand pounds was dependent upon the decision of the ar- 
 bitrator, and if the arbitrator made no decision, as, of 
 course, he could not, after the agreement was revoked, 
 how were you to fix A's damages except by trial? So 
 long as it was permissible to fix a penalty, you could easily 
 say that, in case either party revoked, in such a case as 
 the one suggested, he should pay to the other, say, five 
 hundred pounds. But obviously, this is a penalty, and 
 
 • 7 M., Q. & S. 716, at p. 727. 
 
THE PASSING OF FINES AND PENALTIES 151 
 
 under the rule gradually established in courts of equity 
 and finally made iato statute law by the enactment of 8 
 and 9 William III, it was v<nd. In consequence, the relief 
 which Vynior secured upon the bond when Wilde broke 
 the agreement to arbitrate was no longer to be obtained. 
 All that you could recover was the damages that you sus- 
 tained by reason of the defendant's refusal to go on with 
 the arbitration, and, as Fletcher Moulton says in Dole- 
 man & Sons V. Ossett Corporation,'' "It will be evident, 
 however, that the remedy in damages must be an inef- 
 fective remedy in cases where the arbitration had not been 
 actually entered into, for it would seem difficult to prove 
 any damages other than nominal." So that the result 
 of Coke's dictum in Vynior' s Case, plus the enactment 
 of the statute forbidding fines and penalties, was to leave 
 the injured person practically without remedy. He could 
 sue for his damages, and the damages would be limited to 
 the nominal expense that he had been put to in preparing 
 for the arbitration. What he really wanted was either 
 a fixed penal sum upon which he could rely at the mo- 
 ment he entered into the agreement to arbitrate, or else 
 some judicial machinery by which the recalcitrant de- 
 fendant could be forced to go on with the arbitration. In 
 other words, what should have been granted to him was 
 specific performance; that is to say, the defendant should 
 be required to submit to arbitration. If he failed to nom- 
 inate his arbitrator, then the court should have been per- 
 mitted to nominate someone for him, and the arbitration 
 should be proceeded with. The abolition of fines and pen- 
 alties, therefore, brought about the present incongruous 
 state of the law where the party injured by breach of an 
 agreement to arbitrate is practically without remedy. First, 
 the courts limited the party to his action upon the bond ; 
 then they took away the penalty on the bond; then they 
 said they would not enforce the agreement by specific per- 
 
 'L. E. [1912] 3 K. B. D. 257, at p. 268. 
 
152 COMMERCIAL ARBITRATION 
 
 formanee, and thus they left the situation in such shape 
 that the clever but dishonest merchant can speculate on the 
 outcome of an arbitration, and, when he sees how the 
 arbitrator's mind is going, withdraw from the arbitration 
 without danger of any substantial liability. 
 
CHAPTER XIII 
 "OUSTING THE COURTS OF JUEISDICTION" 
 
 To discover the genesis of this phrase as applied to 
 covenants of arbitration, we have gone to the reports of 
 the cases of the days in which it originated and examined 
 them volume by volume, disregarding for the purposes 
 of the search all of the digests and reviews. We think it 
 may be safely said that the roots of this curious doc- 
 trine of the law are to be found in the following group 
 of cases: 
 
 Kill V. HolUster, in King's Bench (18 Geo. II 1746) 
 (1 Wils. 129). The report of this case requires but eleven 
 lines. The action is upon a policy of insurance. The 
 policy contains a clause that, in case of any loss or dis- 
 pute, the matter shall be referred to arbitration. The 
 plaintiff sets up that there had been no reference. Upon 
 the trial at Guildhall the point is reserved for the con- 
 sideration of the Court, whether this action is well laid 
 before there has been a reference. And by the whole court 
 it was decided that, if there had been a reference pending, 
 "or made and determined, it might have been at (sic) 
 bar, but the agreement of the parties cwnnot oust this 
 court ;"^ and as there has been no reference nor is any 
 pending, "the action is well brought. ..." There is no 
 discussion and no citation of authority. Observe that the 
 Court would regard the defense as good if the arbitration 
 were pending. 
 
 Kill V. HolUster is cited and discussed in Mitchell v. 
 Harris (1793), 2 Vesey Jr.'s Reports 129, at p. 131, 
 
 * Italics ours. 
 
 153 
 
164 COMMERCIAL ARBITRATION 
 
 The latter case is a bill for a discovery in aid of a suit 
 over partnership articles. It was pleaded in bar that 
 the articles contained a covenant to refer all differences 
 to arbitration. The Attorney General, Sir John Scott, 
 afterwards Lord Eldon,^ and Mr. Mansfield for the Plea 
 say: 
 
 "There is no sense, in what is said in Kill v. Eollister, 
 1 Wils. 129, that such covenants cannot be permitted, as 
 the agreement of the parties cannot oust the jurisdiction 
 of the Court. It is not ousted more thrni hy a release 
 of ail right ofaction." Was he right? 
 
 ■The Solicitor General for the other side admits in the 
 course of his argument "that an action might be brought 
 against them for not bringing it to arbitration," to which 
 Lord Chancellor Loughborough said: "Do you know any 
 case, in which an action has been brought on such a cov- 
 enant? In that case iu Wilson (meaning Kill v. Eollister) 
 it came out in evidence upon the assumpsit. Suppose an 
 action brought upon the covenant for not referring it, but 
 proceeding at law; what would be the damages?" 
 
 To which counsel reply :^ "If there were only nom- 
 inal damages, it would make the point good . . . Lord 
 Hardwicke says, this Court must give relief upon a bill 
 for discovery, in order to go to arbitrators, for this extraor- 
 dinary reason, that it is not suitable to the dignity of 
 this Court to give a discovery for the purpose of an ar- 
 bitration." He refers to Wellington v. Mackintosh, 2 Atk. 
 569(1743). To which the Lord Chancellor said : "There 
 is no doubt, that the reporter has mistaken Lord Ha/rd- 
 wicke's reasons in that ease. He has only taken down 
 part of what was said, and has misapplied that; but still 
 the case stands as a clear authority, that the plea was 
 
 ' Encyclopsedia Britanjiica, 11th Ed., Vol. 9, pp. 166, 168. 
 
 " There is cited a footnote reference to Bowley v. Young, 3 Day 
 118, where, after revocation, the plaintiff is permitted to recover the 
 costs of the suit at law, as weU as those arising under the sub- 
 mission. Italics ours. 
 
"OUSTING THE COURTS OF JURISDICTION" 155 
 
 overruled." The argument of the Court here runs : * "It 
 struck me, that no such clause eoUld by possibility stop 
 the discovery; but that some time or other a discovery of 
 the matters supposed to be concealed must be had. This 
 is not inconsistent with a subsequent submission to arbi- 
 tration. The discovery will leave the party to decide 
 whether to bring an action or not." What was here con- 
 sidered was how to give the plaintiff discovery, if he 
 needed it, either before or after the arbitration; there is 
 nothing in the Court's opinion indicating that it regards 
 the clause itself as void or against public policy. 
 
 Then comes this suggestion: "There is another clause 
 in these articles, that the award shall be final. That is 
 more than the law allows to any judgment. If a judgment 
 at law was obtained, a bill showing that it was obtained 
 against conscience by concealment, would open it to relief 
 in this Court. If matter of Equity arose out of the award, 
 I take it, the Court would open it." But the learned 
 Chancellor misunderstood the meaning of "final." It was 
 no more final than a release. Equity could relieve upon 
 the same familiar grounds as it could relieve from a re- 
 lease obtained against conscience or where matter of equity 
 could be shown. And so counsel for the plaintiffs said to 
 the Court : "In Burton v. Ellington, in the Common Pleas, 
 your Lordship determined, that where evidence is fraud- 
 ulently withheld before arbitrators, you would not pre- 
 vent the party from going to a Court of Equity for a 
 discovery." Whereupon the Lord Chancellor says: "Cer- 
 tainly not" and then puts this question: "Have you found 
 any case, in which an agreement to refer has been set 
 up as a bar to an action?" 
 
 The very early authorities which we have reviewed are 
 not brought to the Court's attention; there is no con- 
 sideration given to the law of arbitration generally, no 
 consideration of its history or use; no text-writers on the 
 
 '2 Ves. Jr. 129^ at p. 135. Italics ours. 
 
156 COMMERCIAL ARBITRATION 
 
 subject are consulted. The Court accepts the unreasoned 
 expressions in Wilson (Kill v. Hollister) as the only ex- 
 isting authority at Common Law upon the subject, the 
 Chancellor saying: "I have looked into many cases at 
 law, where the subject of reference became afterwards the 
 subject of action; and it is not said in any, that a mere 
 agreement to refer can take away the jurisdiction of any 
 Court in Westminster Hall." His search was not com- 
 plete, as we have seen. "As no such attempt has ever 
 been made, it would be a great novelty to allow this plea ; 
 and therefore it must be overruled." Thus, the Court 
 finding no precedents, and counsel citing none, the plea 
 is treated as too novel to support itself, and, accordingly, 
 held to be of no value. And so a precedent is made, and 
 the subject is no longer novel. 
 
 But Halfhide v. Fenning,^ decided but five years earlier, 
 was in fact a precedent contra. There a bill is brought 
 for an accounting between partners. The defendant pleads 
 that by the articles of co-partnership all differences which 
 might arise were to be referred to arbitration, and that 
 the matter in dispute had not been so referred. The plea 
 is held good. This case was later than Lord Hardwicke's 
 decision in Wellington v. Mackintosh, 2 Atk. 569, and ex- 
 pressly overrules it. It is later, also, than Kill v. Hollis- 
 ter, and, therefore, overrules KUl v. Hollister. Lord Ken- 
 yon here says: "There can be no doubt, but that parties 
 entering into an agreement that all disputes shall be re- 
 ferred to arbitration, are bound by such agreement. The 
 legislature has countenanced such agreements by the act of 
 William 3, for facilitating the execution of them. . . . Such 
 references are very advantageous to the parties; as arhi- 
 trators are more competent to the settling of complicated, 
 accounts than the officers of courts of law or equity."* 
 Was he right? 
 
 'Edlfhide v. Fennvng, 2 Brown's Chancery Cases 336 (1788). 
 'ItaUcs ours. 
 
"OUSTING THE COURTS OF JURISDICTION" 167 
 
 The reporter says in a footnote to this case: "This case 
 is universally held to be against the law and practice of 
 our Courts. It has always been held 'a singular case, 
 and in direct opposition to Lord Hardwicke's decision in 
 '^tlUngton v. Mackintosh, 2 Atk. 569 ; besides that it has 
 since been repeatedly over-ruled.' " But in 1844, as we 
 shall see later, Lord Chancellor Sugden says •.'"'I think that 
 Half hide v. Fenning is still laiw." 
 
 Furthermore, the reporter in Mitchell v. Harris says it 
 is now well settled " as an undoubted general rule, that a 
 mere agreement to a reference does not estop a party 
 from applying to a Court of Equity to determine his 
 rights; but, where the submission to reference has been 
 made a rule of a Court of Law (or either party has a 
 right to make it such, Davis v. Getty,'' Sim. & Stu. 414), 
 it is, to say no more, extremely doubtful, whether even 
 fraud will authorize Equity to interfere ; Auriol v. Smith, 
 Turn. 127; Dawson v. Sadler, 1 Sim. & Stu. 541, ..." 
 Now, though Vynior's Case is nowhere directly cited in 
 these cases, the decision of these days is directly traceable 
 to its influence. We have seen how it affected the Court 
 in Hide v. Petit, in Milne v. Gratrix (7 East. 608), and in 
 Kir^g v. Joseph (5 Taunt. 452). Studying the footnote 
 (Note 3) to Mitchell v. Harris, the reporter gives us the 
 clew: 
 
 "Not only a parol submission to arbitration, but even 
 a submission by deed, may be revoked, at any time before 
 the award is made, jilthough the submission should, after 
 such revocation, be made a rule of Court ; in such case, no 
 contempt of Court is committed, which can be punishable 
 by attachment ; and, even if the submission had been made 
 a rule of Coiirt previously to its revocation, notwithstand- 
 ing this revocation would be a contempt for which the 
 
 * Dimsdale v. Bohertson, 2 Jones & La Touche'a Reports 58, Italica 
 ours. 
 
168 COMMERCIAL ARBITRATION 
 
 party might be' attached; still, it seems, no award could 
 be made, the specific execution of which could be en- 
 forced. The arbitrators, however, would do right in after- 
 wards proceeding to make their award ; because the party, 
 continuing in submission, will be entitled to his action 
 for damages, on non-performance of the covenant by the 
 other party to abide the award: or, if the bond contain 
 an obligation to pay a certain penalty, in the nature of 
 liquidated damages, although the obligee may still revoke 
 his submission, he, of course, by so doing, forfeits the 
 penalty of the bond. Milne v. Gratrix, 7 East, 611 ; King 
 V. Joseph, 5 Taunt. 453." 
 
 Though the reporter states that it follows as a necessary 
 corollary that "a bill for specific performance of an agree- 
 ment to refer to arbitration, would not hold" (citing Gour- 
 ley V. Duke af Somerset, 19 Ves. 431 and Agar v. Macklew, 
 2 Sim. & Stu. 423) nevertheless "a Court of Equity will 
 not be disposed to listen to any interlocutory motion on 
 behalf of a party who, without just grounds, reftises to 
 abide hy such agreement" * (citing Waters v. Taylor, 15 
 Ves. 16*) ; "and it would be quite impossible," says he, 
 "that a party, who, by revoking a submission which has 
 been made a rule of Court, has been guilty of a contempt, 
 should obtain special relief, in the same cause, from the 
 Court whose order he has violated, contrary to his en- 
 gagement. Supposing his revocation to be legally valid, 
 it is not a ease in which he has any reason to hope for 
 the aid of Equity" (citing Earcourt v. Bamshottom, 1 Jac. 
 & Walk. 511). 
 
 In short, according to the reporter, you may punish, 
 as for contempt of court, the man who revokes; you may 
 deny him relief in a court of equity because he does not 
 "come in with clean hands"; but if he brings suit in 
 violation of his agreement, it is no plea in bar that by 
 
 "Italics oura. 
 'See post, p. 161. 
 
"OUSTING THE COURTS OF JURISDICTION" 159 
 
 so doing the Court will aid and abet him in his iniquity. 
 Yet "The ethical impropriety of the . . , revocation at 
 such a stage in the proceedings is obvious ..." {Toledo 
 8. 8. Co. V. Zenith Transp. Co., 184 Fed. Rep. 391, at p. 
 396 [1911] per HoUister, J.).^" 
 
 Now, it is to be observed that none of the Chancellors 
 was wholly opposed to arbitration. What concerned them 
 was giving the aid of Chancery to either party, in spite 
 of the arbitration, where "matter of equity" arose. This 
 is made clear in the later case (1807-8) of Waters v. Tay- 
 lor, ^^ where Lord Eldon (in spite of his animadversions 
 upon arbitration in Street v. Rigiy ") says that where the 
 parties have provided a forum for themselves it "shows 
 their intention against the interference of any other juris- 
 diction, until they have tried the effect of the special means, 
 provided by themselves; and that course," says Lord El- 
 don, "which is familiar in the common case of partner- 
 ship, is more especially to be adopted, where the parties 
 have themselves expressed that intention." Here there were 
 partnership articles for the management of the Italian 
 Opera House. The articles contained provisions for ar- 
 bitration. The plaintiff, one of the parties, brought suit 
 in equity for injunction, receivership, etc. The headnote 
 of the case is: "Although an agreement to refer disputes 
 to arbitration is, generally, no objection to a suit in a Court 
 of Equity, yet upon the nature of the subject, the man- 
 agement of the Opera House, and the amxious provision 
 of the parties for arbitration, the Court refused upon mo- 
 tion to interfere before they had taken that course." ^^ 
 
 "Here, at p. 396, the source of the revocaMUty theory is given 
 as Morse on Arbitration, p. 437, Vynior's Case. The Court says "the 
 strictness of the rule grew out of the jealousy of the common-law 
 judges in early times of their jurisdiction, and of their fear lest 
 encroachments might be made upon it (Morse on Arbitration, 436), 
 while in the modern view and practice the settlement of disputes 
 by arbitration are encouraged by the courts. ..." 
 
 " 15 Vesey Jr. 10. 
 
 "See post, p. 162. 
 
 "Italics ours. 
 
160 COMMERCIAL ARBITRATION 
 
 And in the report itself we read that the Lord Chancellor 
 (Bldon) "suggested the absolute necessity, that these par- 
 ties should go to arbitration;" ^* and gives as his reason 
 that "it is much more wholesome, where the parties have 
 contracted for this mode of settling their differences, and 
 the point of dispute is one, which is expressly provided 
 for, to let them try, whether they cannot so settle it; than 
 that this Court should interpose upon this sort of summary 
 application."'^^ And so "The parties afterwards went to 
 arbitration; and an award was made . . ."" 
 
 Lord Eldon expressly qualifies the decision of Lord Hard- 
 wicke in Wellington v. Mackintosh. He says: "Taking the 
 general doctrine now to be according to Lord Hardwicke's 
 opinion, which goes upon the principle, that this Court 
 has powers of inquiry beyond those of an arbitrator, do 
 any of those cases go the length of such a special, anxious, 
 provision for arbitration as this ; " applying to every case, 
 in which a difference could arise ; and stipulating express- 
 ly, not only that the arbitrators shall determine upon 
 evidence, but that they shall be at liberty to use all other 
 ways and means to enable them to decide, that they shall 
 think fit : the parties evidently anxious to exclude this juris- 
 diction upon a subject, to which certainly it is very inade- 
 quate?"" 
 
 In short, Lord Eldon did not find anything offensive to 
 equity in. parties agreeing to exclude the court of juris- 
 diction. He himself had said as counsel in Mitchell v. 
 Harris that there was "no sense" in the holding in Kill 
 V. HolUster that agreements of the parties "cannot oust 
 the jurisdiction of the Court." And his aa-gument is as 
 sound today as it was then. The Court is not "ousted 
 more than by a release of all right of action." And in 
 
 " 15 Vesey Jr. 10, at p. 12. Italics oura. 
 " nid., p. 19. Italics oura. 
 ^'liid., p. 20. 
 "Italics ours. 
 
"OUSTING THE COURTS OP JURISDICTION" 161 
 
 Waters v. Taylor, he refers to the litigation of the parties 
 as "calling down upon them an interposition, perhaps 
 not the most ruinous, hut that cannot take place without 
 infinite mischief to all, who may have any interest in the 
 subject," and so "I shall give them an opportunity to 
 pause; and consider, whether they will press for my de- 
 termination, or have their disputes determined by" — note 
 the language here — "that more wholesome mode, which 
 they have themselves provided." " 
 
 In Waters v. Taylor an application was made for a re- 
 ceivership and the Lord Chancellor permitted the arbi- 
 trators to determine the very question of whether there 
 should be a receiver, even permitting them to name a man- 
 ager for the opera house, for he says: "Whatever may 
 be the law of this Court as to the capacity of parties by 
 stipulation to deprive themselves of the right to resort to 
 a Court of Justice in the first instance, and taking the 
 law to be, that a man cannot bind himself to forbear to 
 come here, xuitil an arbitration has been had, in almost 
 every line of this deed of 1803, upon which the suit is 
 instituted, the parties have expressed the greatest anxiety 
 to keep out of Court; if they could in any manner arrange 
 their disputes by arMtration." ^^ And so he steadfastly 
 refuses, even upon a third application and after the ar- 
 bitrators had decided, to interpose the aid of Chancery, 
 saying, "if they will not settle their own interests, it is 
 immaterial, whether the consequences shall be produced by 
 their own acts or by mine. ' ' '* 
 
 Thus it was clearly Lord Bldon's opinion that these 
 agreements were wholesome and should be enforced, un- 
 less there were strong equitable grounds for intervention 
 by a Court of Chancery, as where a discovery was re- 
 quired in aid of an accounting by arbitrators. As Sir 
 
 17 Tta.lics ours 
 
 " 15 Vesey Jr. 10, at p. 22. Italics ours. 
 
 "Ibid., p. 28. 
 
162 COMMERCIAL ARBITRATION! 
 
 John Seott, in Half hide v. Ferming (supra), he had tried 
 to convince Lord Kenyon that the plea of an agreement 
 to arbitrate differences did not preclude a bill for a dis- 
 covery, though it might be a good plea to the relief. And 
 Lord Kenyon in that case, as we have seen, would not go 
 with him. 
 
 But Lord Eldon had had a bitter experience with ar- 
 bitration while at the Bar, as he tells us in his opinion in 
 Street v. Bighy^ (1802). He had been counsel in Price 
 V. Williams,^^ where, as he reports in Street v. Bighy, a bill 
 for specific performance of an arbitration agreement was 
 filed. Lord Thurlow refused specific performance, but 
 referred the matter to a master whose report was very 
 favorable to Lord Eldon 's client, "the result being, that 
 a very small sum was due from him." Thereupon, "A 
 vast number of exceptions were taken; and the Court fel', 
 that sort of difficulty of dealing with the exceptions," and 
 this "led to an arbitration; though at first the Court 
 would not hear of it." And so, reports Eldon, "the party, 
 who had not been able to establish any thing before the 
 Master, in that mode gained several thousand pounds." 
 "Then," says he, "the difficulty occurred about the power 
 of this Court to review the decision of arbitrators; and 
 in the end my client fared much worse than he woul'' 
 have done before the Master." This experience raised 
 in his mind ^^ "considerable doubts, whether the eulogia 
 upon the domestic forum of arbitrators are well founded" 
 and that case and others led him "to adopt a rule never 
 to advise an arbitration afterwards. ' ' ^' Yet, as we have 
 seen, five years later, in Waters v. Taylor, he had already 
 overcome the sting of disappointment in Price v. Williams 
 and was broad-minded enough to apply rigorously to the 
 
 » 6 Vesey Jr. 814, at p. 817. 
 
 " 3 Bro. C. C. 163 ; 1 Vesey Jr. 365. This report does not give the 
 earlier history of the case. 
 
 "6 Vesey Jr. 814, at p. 818. 
 '^lUd., p. 819. 
 
"OUSTING THE COURTS OF JURISDICTION" 169 
 
 parties the agreement to arbitrate which they had made, 
 though it meant, in effect, an actual determination of the 
 court's jurisdiction. 
 
 If we make a reasonable allowance for the disappoint- 
 ment with some arbitrations which Lord Eldon shared with 
 others at the Bar, we shall find in the decisions of the 
 chancellors of his day no evidence of real hostility to 
 arbitration agreements as such, and no determination to 
 hold them void as against public policy. These judges 
 were concerned only with preserving that jurisdiction of 
 the equity courts which would relieve the parties of any 
 situation that, in spite of the written word, was "against 
 conscience." Lord Eldon concedes in Street v. Bighy that 
 his own argument in Halfhide v. Fenning was unsound for 
 the reason that when the parties agree to arbitrate they 
 mean "this, if any thing;" that they "will not harass 
 themselves by going to Courts of Justice; but will state 
 to each other what is in dispute, and refer that to arbi- 
 trators; and entering into such a covenant they must be 
 taken to mean, that they will be content with a decision 
 upon such discovery as arbitrators can compel, without 
 subjecting each other to the necessity for either to be 
 examined upon oath, before arbitrators, who cannot ex- 
 amine them upon oath."^* Accordingly, he says, "they 
 choose therefore that forum exclusive of the jurisdiction 
 of the country to all intents and purposes; meaning, that 
 arbitrators shall from beginning to end do that, which 
 they are enabled to do, viz., to decide "between them as well 
 as they can." ^^ And if they break their agreement, a suit 
 is justified, in which, it is true, they would recover only 
 nominal damages, just as much if they file a bill for dis- 
 covery as if they file a bill for discovery and relief. Ac- 
 cordingly, having demolished his whole argument in Half- 
 hide V. Fenning, he then says that it is not surprising "that 
 
 «Vesey Jr. 814, at p. 819. 
 '' Italics ours. 
 
164. COMMERCIAI. ARBITRATION 
 
 Lord Kenyon should take it, that the Counsel (Lord El- 
 don) thought, if not upon that, it (the plea) could not 
 be supported." "But," says he, "if the distinction can- 
 not be maintained between a bill for discovery only and 
 for both discovery and relief, it must be said, they are 
 bound to go first before the arbitrators; and the party 
 must be brought there; and must refer: the parties to 
 be examined upon honour; for they cannot upon oath."^° 
 It is true this situation does not quite appeal to the Lord 
 Chancellor's sense of equity, for if the parties are always 
 to wait until after an award before applying to equity 
 for relief, he observes that they may lose all opportunity 
 for relief, and if they apply for relief ancillary to the 
 arbitration, he recalls "passages, in which Courts of Jus- 
 tice, however full of eulogia upon these domestic forums, 
 have recollected their own dignity suflSciently to say, they 
 would not be ancillary to those forums." And so he says: 
 "I do not enter into the question of the effect at law of 
 a covenant to forbear to sue." Of course not; a release 
 is such a covenant. At law it was a full bar. But equity, 
 upon familiar grounds, could relieve the parties. "But, 
 supposing it good, in strict law it cannot be maintained, 
 that having covenanted to refer the party has covenanted 
 to forbear to sue ; and if not, he has only left himself open 
 to an action for damages, if he does not refer; which the 
 suit does not prevent, if thought advisable."^* And now 
 comes the clear explanation for the point of view of a 
 great Equity Judge: "It would be very strong to say, 
 that, where the legal remedy they have provided for them- 
 selves is utterly incompetent to justice, this Court is pre- 
 cluded from granting its ordinary remedy, by a covenant, 
 which does not in terms express an undertaking not to 
 resort to this Court: and must hold that doctrine upon 
 a plea; in that shape permitting the Defendant to have 
 in substance a specific performance, which would hwve 
 " 6 Vesey Jr. 814, at p. 820. 
 
"OUSTING THE COURTS OF JURISDICTION" 165 
 
 been refused to Mm as a Plaintiff."" In other words, it 
 is the chief business of equity to relieve parties from situa- 
 tions in which they find themselves helpless at law. Where 
 a deed, a release, or a contract has been secured by fraud, 
 by mistake, by taking undue advantage of one of the par- 
 ties, equity is swift to the rescue ; why not in the case of 
 such covenants as these? The initial error axiaes from the 
 failure to follow the decision of JefEreys, to which no one 
 calls attention in the days of Loughborough, Hardwicke, 
 Kenyon and Eldon; and the refusal to aid in the enforce- 
 ment of agreements to arbitrate. It was not, as at first 
 the judges feared, impracticable. Five years later Lord 
 Eldon did this very thing.^* Then he was restrained by 
 no fear that sustaining the plea gave the defendant relief 
 which he could not secure in an action for specific per- 
 formance.^' 
 
 In Street v. Bighy, as in Mitchell v. Harris, Lord Eldon 
 insists upon the jurisdiction of equity to protect the par- 
 ties even against their own covenant, just as in Waters v. 
 Taylor, he enforces their covenant for them. He says in 
 Street v. Bighy "that no instance is to be found of a 
 decree for specific performance of an agreement to name 
 arbitrators ; or that any discussion upon it has taken place 
 in experience for the last twenty-five years. "^'' But we 
 submit that the search for precedents was not complete, 
 and that in any event, five years later, in Waters v. Taylor, 
 the Chancellor himself made such a precedent. In equity, 
 he compelled the parties to carry out their agreement to 
 arbitrate. 
 
 From all of which we may now conclude that the Chan- 
 cellors of these days had no intention of avoiding the legal 
 
 "Ibid., p. 821. Italics oura 
 
 "Waters v. Taylor, 15 Ves. Jr. 10. 
 
 "And under the spur of Parliament, the courts in 1892 do find 
 a way to enforce specific performance of such agreements. See 
 post, pp. 212-213. 
 
 "e Ves. Jr. 814, at p. 817. 
 
166 COMMERCIAL ARBITRATION 
 
 effect of agreements to arbitrate — they were concerned only 
 with the problems of equitable relief in such cases. '^ 
 
 Lord Kenyon in Thompson v. Charnock,^' in 1799, does 
 himself a grave injustice by saying: "It is not necessary 
 now to say how this point ought to be determined if it 
 were res integra, it having been decided again and again 
 that an agreement to refer all matters in difference to 
 arbitration is not sufScient to oust the Courts of Law or 
 Equity of their jurisdiction." But a still greater injustice 
 was done to Lord Kenyon in assuming in Thompson v. 
 Charnock he had reversed his decision in Ealfhide v. Fen- 
 ning?^ 
 
 Later than Thompson v. Charnock (1799), Mitchell v. 
 Harris (1793), Street v. Righy (1802) and Waters v. Tay- 
 
 "The English judges and the Scotch judges were not in accord 
 upon this subject. See discussion by Bell, Law of Arbitration (2nd 
 Ed.), pp. 24, 267, 268, and discussion by Lord Monereiff in Brdkinrig 
 V. Menzies, 4 Sess. Cases, 2nd Series, 274, at p. 282 ert seq., 
 also remarks by Lord Campbell in Mackenzie v. Gvrvan, 2 Bell's 
 App. 43, at p. 55, wherein his Lordship said that to him it seemed 
 "the practice of Scotland is much more convenient than the prac- 
 tice here" and that the English practice "has produced very great 
 inconvenience." The Scotch rule was, as stated by Monereiff in 
 Srdkinrig v. Mensies (p. 283) : 
 
 "All the authorities agree that a submission to arbiters is a 
 contract by which the parties commit to the entire and exclusive 
 cognizance of the arbiter or arbiters named the whole matter sub- 
 mitted, and bind themselves to abide by his or their decision in all 
 things." And this comprehended "the decision in law as well as 
 in fact." 
 
 This rule Lord Campbell regarded as a "much more reasonable" 
 rule than the practice in England, whereby if it appears upon the 
 face of the award, or in the papers referred to in the award, that 
 the arbitrator has mistaken the law, the Court had jurisdiction over 
 the award and will set it aside. 
 
 "That has produced so much inconvenience in this country," 
 said Lord Campbell, "that for a number of years past in West- 
 minster Hall, they have said that they would not at all review what 
 the arbitrator had done, if it was referred to a barrister-at-law — a 
 gentleman in the law; Ijut that whatever he decided, whether right 
 or wrong, should be final between the parties." (Mackenzie v. 
 Gvrvan, sv/pra, at p. 55.) 
 
 " 8 T. R. 139, at p. 140. 
 
 "See Lord Chancellor Sugden's remark in Dimsdale v. Sobertson 
 (1844) 2 Jones & La Touche's Reports 58, post. 
 
"OUSTING THE COURTS OF JURISDICTION" 167 
 
 lor (1807-8) appears Harcourt v. Eamsbottom?* This ease 
 comes before Lord Bldon in 1820. It will bear careful 
 study. 
 
 Here were articles of arbitration between bankers. A 
 suit had been brought and a receiver appointed. Both 
 parties then agreed to arbitrate and the agreement pro- 
 vided for the manner of appointing the arbitrators. The 
 appointment of the arbitrators was confirmed by order of 
 the court. Thereafter the plaintiff revoked the submission, 
 but the arbitrator went on and made the award. Then 
 the plaintiff brought a bill in equity to set aside the 
 award. And his counsel contended that "The authority 
 of an arbitrator is always revocable till the award is made ; 
 and if one party revokes it, the only remedy of the other 
 is by an action on the bond or covenant."'" He, too, 
 relies upon Kiny v. Joseph,^' and Milne v. Grairix," which, 
 it will be recalled, are direct descendants of Coke's dictum 
 in Vynior's Gase.^^ To all of which Lord Eldon replies: 
 "It is said, the award is not good because the authority 
 was revoked: my answer is, that if it is revoked at law, I 
 could not have considered it as revoked in equity, whether 
 it was made a rule of Gourt or not."^^ He says to the 
 plaintiff: "If the award was not enforced, this Court 
 would leave the parties to deal with the matter at law; 
 and if at law you can restrain them from selling these 
 estates, do it; but you have no equity to come here."^' 
 
 And even as to the rule at law he is not quite certain, 
 for he says: "I am not saying it (the revocation) is good 
 at law, but I agree entirely that it is had in equity, under 
 
 " 1 Jacob & Walker 's Chancery Beports 505 (First American, from 
 the first London edition). 
 
 ''Ibid., p. 507. Italics ours. 
 
 '"5 Taunt. 452. 
 
 "7 East 608. 
 
 "See supra, p. 157. 
 
 ™ 1 Jacob & Walker 's Chancery Beports 505, at p. 511. Italics 
 ours. 
 
168 COMMERCIAL ARBITRATION 
 
 these circumstances." *" So, whatever its effect at law, this 
 great judge treats the revocation of a suhmission, except 
 where equitable grounds for it are proved, as bad in equity. 
 And he will not permit the parties to argue that the 
 award is ineffective. "Because one party says it is re- 
 voked, then, although it is matter of justice to the other 
 party, yet the arbitrator is not to hear him on the other 
 parts of his case; but is to say at once, this party will 
 not let me go on. . . . It is impossible to maintam that." *^ 
 
 Thus Milne v. Gratrix (1806), King v. Joseph (1814), 
 Aston V. George (1819) and Hide v. Petit (1670) are set 
 aside. Yet this later case (1820) is treated by the re- 
 porters of the day as hardly deserving of more than pass- 
 ing notice and, as we shall see, is rarely, if ever, referred 
 to in later argument. 
 
 In Chancery, in Lord Eldon's day (1823), where it is 
 one of the terms of an agreement to refer disputes to ar- 
 bitration that the submission shall be made a Rule of 
 Court of Common Pleas if either party require it, the Court 
 refuses to relieve a party from an award even though the 
 submission has not been made a rule of the Court of Com- 
 mon Pleas within the statutory period. The Vice-Chancellor 
 (Sir John Leach) says: "I cannot consider that it was the 
 intention of the Legislature to leave it to a party who meant 
 to complain of the award to escape, at his pleasure, from 
 the provisions of the statute." 
 
 In 1838, the Vice-Chancellor (Lord Shadwell) in Pope 
 V. Lord Duncannon *^ refused to restrain the defendants 
 from acting upon an award where the plaintiff had revoked 
 the submission before the arbitrators had made an award. 
 The Vice-Chancellor expressly adopts Lord Eldon's reason- 
 ing in Earcourt v. Bamsbottom. "I say," said he, "that a 
 
 '"l Jacob & Walker's Chancery Beports 505, at p. 612. Italics 
 ours. 
 "76td. Italics ours. 
 " 9 Sim. 177, at p. 179, 180. ItaUcs ours. 
 
"OUSTING THE COURTS OF JURISDICTION" 169 
 
 Plaintiff is not at liberty to ask the aid of a Court of 
 Equity in respect of an act done by him against good 
 faith" and as there was nothing to show that the revoca- 
 tion was based upon "any just or reasonable grounds," in 
 other words, "matter of equity," "I am bound to con- 
 clude that the revocation was a wanton and capricious ex- 
 ercise of authority. ..." 
 
 We now come, in 1844, to Dimsdale v. Boiertson*' where 
 Lord Chancellor Sugden follows and adopts Lord Eldon's 
 statements in Waters v. Taylor, wherein he says, by their 
 agreement "the parties . . . anxiously provided for the 
 reference to arbitration ..." and "Lord Eldon there, 
 upon an interlocutory application, drove the parties to a 
 reference."*^* After reviewing all the cases — including 
 Mitchell V. Harris, Wellington v. Mackintosh, Thompson v. 
 Charnock and Street v. Eigiy, the Lord Chancellor says : 
 
 "Upon the whole, therefore, I think that Half hide v. 
 Penning is still law."*^ 
 
 He says that Lord Kenyon in Thompson v. Charnock was 
 misunderstood. "I am not aware," says he, "of any case 
 in which Lord Kenyon doubted his own decision [Halfhide 
 V. Fenning]." "There is no report of any decision of 
 Lord Thurlow's impeaching Lord Kenyon 's."*' Accord- 
 ingly, the Chancellor refuses to aid the plaintiff in with- 
 drawing a case from arbitration. 
 
 *■ 2 Jones & La Touche 's Eeporta 58, 
 "Hid., p. 93. Italics ours. 
 "Hid., p. 92. Italics ouis. 
 "Ibid., p. 92. 
 
CHAPTER XIV 
 
 THE EEBOE IS COEEECTED: SCOTT V. AVEEY (1853) 
 
 We may now proceed directly to the consideration of 
 Scott V. Avery,^ decided in 1855 in the House of Lords, 
 where, after much debate, the rule of Vynior's Case and 
 Kill V. Hollister is reversed. Here it is held that parties 
 may covenant "that no right of action shall accrue till a 
 third person "has decided on any difference that may arise 
 between himself and the other party to the covenant." 
 Atherton and Pollock argue that this agreement "is in it- 
 self illegal, as ousting the jurisdiction of the courts of law" 
 and cite Kill v. Hollister, Wellington v. Mackintosh, Thomp- 
 son V. Charnock, Street v. Bigby and Waters v. Taylor. 
 
 The judges consider all these authorities, as well as 
 Halfhide v. Penning and Dimsdale v. Boiertson. Baron 
 Martin and Lord Coleridge are for the rule stated in 
 Thompson v. Charnock and Kill v. Hollister. Lord Chan- 
 cellor Cranworth and Lord Campbell are for the broader 
 rule in Halfhide v. Penning and Waters v. Taylor. Baron 
 Martin says: 
 
 "The true ground I believe to be, that a prospective 
 agreement not to have recourse to the courts of law or 
 equity of the country in respect of future causes of action 
 to arise, is against the liberty of the law, which secures to 
 every one the right of submitting to the courts any matters 
 in respect of which he claims redress."'' 
 
 But it is not the liberty of the individual to resort to 
 the courts in spite of his agreement to the contrary, for 
 
 •5 H. L. C. 811; 25 L. J. (Exch.) 308. 
 UUd., p. 830. 
 
 170 
 
SCOTT V. AVERY 171 
 
 the courts will decline to lend him their aid if he has 
 waived his rights or in good faith released the other party 
 from all claims against him. Mr. Justice Crompton says 
 very logically, it seems to us, that "the proceeding to be 
 gone through under the agreement in question was an 
 arbitration of a strictly judicial nature, in which the 
 arbitrators were to proceed judicially. ' ' ^ Accordingly, 
 he finds that this covenant does, in fact "oust the court 
 of jurisdiction." But he says that "It is a legal incident 
 to every contract that the parties should have a right to 
 resort to a court of law for the settlement of their dis- 
 putes; and a stipulation to the contrary is void, as be- 
 ing repugnant to the rest of the contract. ' ' * 
 
 Contrary to the decisions of Lord Bldon, Lord Sugden 
 and Lord Kenyon, the rule is now re-dressed and put 
 forth by Baron Martin and Lord Coleridge as a rule of 
 public policy. Now it is no longer a matter merely of 
 appropriate relief, but such provisions are absolutely void. 
 Of course, if they are void, they are revocable — thus once 
 more Lord Coke's dictum comes to reign over England. 
 
 But here we are referred to a new source of authority — 
 again from Coke. Baron Parke, in the Court of Ex- 
 chequer, had quoted a passage from Coke Littleton:" "If 
 a man make a lease for life, and by deed grant that if any 
 waste or destruction be done that it shall be redressed by 
 neighbours and not by suit or plea — notwithstanding, an 
 action of waste shall lie, for the place wasted cannot be 
 recovered without a plea. ' ' But ' ' The ease, ' ' says Mr. Jus- 
 tice Cresswell in the House of Lords,' "is not to be found 
 in the Year Book, 3 Edw. 3, referred to, but is in Fitz- 
 herhert's Abridgment, 'Waste,' Placitum 5, and the whole 
 of it is given in Coke Littleton." The learned Baron had 
 
 'Ibid., p. 834. 
 
 *Ihid., p. 835. 
 
 •8 Exeh. Eep. 494. 
 
 •5 H. L. 0. 811, at p. 837. 
 
172 COMMERCIAL ARBITRATION 
 
 not consulted Statham or Bracton, nor found the cases 
 we have cited from Fitzherhert, nor referred to the cases 
 in Bracton 's Note Book. Moreover, as Mr. Justice Cress- 
 well very properly observed in criticism of Baron Parke's 
 reference: — "It seems that this decision proceeded on the 
 ground that the neighbours could not redress the wrong 
 done; that it could only be done by plea; therefore, not- 
 withstanding the deed, an action of waste would lie. 
 There is not a word leading to the supposition that cm 
 action would have been maintainable, if neighlxmrs 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."'' Yet without further examination or considera- 
 tion of other and older precedents, this quotation from 
 Coke was "considered to have established that parties 
 cannot by agreement oust the jurisdiction of the Courts of 
 the realm." 
 
 Upon this basis, the plaintiff had been permitted to 
 recover in the Court of Exchequer, which at that time 
 consisted of Barons Parke, Alderson, Piatt, and Martin.' 
 On appeal, however, the Court of Exchequer Chamber re- 
 versed the judgment, though Coleridge, J., conceded * ' ' that 
 any agreement which is to prevent the suffering party from 
 coming into a Court of law, or, in other words, which ousts 
 the Courts of their jurisdiction, cannot be supported." 
 Upon appeal to the House of Lords, the defendant's plea 
 is sustained, the agreement to arbitrate is held to bar the 
 suit in equity, the plaintiff is not permitted to revoke. — In 
 short, the doctrine of Halfhide v. Penning, Waters v. Tay- 
 lor and Harcourt v. Bamsbottont prevails. 
 
 Mr. Justice Coleridge says, however: "The principle of 
 
 ' 5 H. L. 0. 811, at p. 837. Italics ours. 
 •8 Exch. Eep. 487. 
 'Ibid., p. 500. 
 
SCOTT V. AVERY 173 
 
 law whicli is relied on by the Plaintiff in Error is agreed 
 on. The difference between the parties is upon the ques- 
 tion whether it governs the present case. ... If two par- 
 ties enter into a contract, for the breach of which in any- 
 particular an action lies, they cannot make it a binding 
 term, that in such event no action shall be maintainable, 
 but that the only remedy shall be by reference to arbitra- 
 tion. Whether this rests on a satisfactory principle or 
 not may well he questioned; hut it has heen so long settled, 
 that it cannot he disturhed." ^^ A more thorough examina- 
 tion of the earlier cases would have convinced the learned 
 judge that no such proposition had been settled and that, 
 indeed, there was good reason why it should have been 
 questioned. 
 
 Again, Lord Coleridge says: "The courts will not en- 
 force or sanction an agreement which deprives the sub- 
 ject of that recourse to their jurisdiction, which has been 
 considered a right inalienable even by the concurrent will 
 of the parties." But agreements to submit differences 
 to arbitration are not intended to deprive the subject of 
 recourse to the jurisdiction of the courts. Indeed, the rem- 
 edy for enforcement of an award is to sue in the courts 
 upon the award, or, if a bond is given, to sue on the bond. 
 All the arbitrators do is to determine what is owing from 
 one party to the other. This does not make the arbitration 
 imenforeible in courts of law or equity — save as the 
 courts themselves have made it so; nor where matter of 
 equity is involved, does it preclude recourse to equity. 
 What the party seeks in the arbitration is a determination 
 of what is due, by the cheapest and most expeditious proc- 
 ess. This surely is not against public policy. And an 
 agreement determining the process or selecting the ma- 
 chinery is like any other kind of agreement, one that the 
 courts should enforce, unless it be against public policy — 
 
 " 5 H. L. C. 811, at p. 841. Italics ours. 
 
174 COMMERCIAL ARBITRATION 
 
 just as Lord Eldon did enforce it in Waters v. Taylor and 
 in Harcourt v. Bamslottom. 
 
 Mr. Justice Coleridge practically concedes this when he 
 says: 
 
 "But nothing prevents parties from ascertaining and 
 constituting as they please the cause of action which is to 
 become the subject-matter of decision hy the courts. Cove- 
 nanting parties may agree that in case of an alleged breach 
 the damages to be recovered shall be a sum fixed, or a sum 
 to be ascertained by A. B., or by arbitrators to be chosen 
 in such or such a manner; and until this be done, or the 
 non-feasance be satisfactorily accounted for, that no action 
 shall be maintainable for the breach. "^^ And "This po- 
 sition," he says, "has not been questioned in the argu- 
 ment before the House; nor was it, I think, in the Court 
 below. "^^ In this, he was in error; for the plaintiff's 
 counsel argued and argued logically — so we believe — and 
 Baron Parke and his colleagues agreed with him, that to 
 leave arbitrators to determine what is due from A to B 
 is to permit them to determine the entire controversy, and 
 this, in a very practical sense, ousts the court of jurisdic- 
 tion. My Lord Coleridge was not satisfied that arbitra- 
 tion agreements should not be upheld, but he felt con- 
 strained, for want, shall we say, of better guidance, to 
 treat the law as so settled. But he whittled it to the vanish- 
 ing point; for every covenant to submit to arbitration is 
 in truth and in fact a covenant not to resort to the courts 
 to enforce one's rights until arbitrators have determined 
 those rights. 
 
 And so Mr. Justice Coleridge is forced to conclude: "It 
 is true that in arriving at the sum to be sued for, the com- 
 mittee, or the arbitrators, may have to consider the na- 
 ture of the claim, and the proofs of it; but, so in settling 
 
 "5 H. L. C. 811, at p. 841. Italics ours. 
 
 " But see his obeervations thirty-six years later (1892) in Trainor 
 V. Phoenix Fire Assurance Co., 65 L. T. 825 (post, pp. 210-211). 
 
SCOTT V. AVERY 176 
 
 the amount to be recovered by a builder or a railway con- 
 tractor, the architect or engineer, or whoever may be the 
 preliminary referee agreed on for the purpose, must ex- 
 amine and decide that which may really he the very point 
 in dispute between the parties, namely, the quantity or the 
 goodness of the work, or the quality of materials used; yet 
 no one objects that on this account the stipulation for 
 submission to this previous inquiry is void as ousting the 
 jurisdiction of the courts." ^^ And why is the learned 
 Justice so keen to draw this nice distinction ? He tells us : 
 "I certainly am not disposed to extend the operation of 
 a rule which appears to me to have been founded on very 
 narrow grounds, directly contrary to the spirit of later 
 times, which leaves parties at full liberty to refer their dis- 
 putes at pleasure to public or private tribunals." ^^ The 
 spirit of 1856 was disposed to leave "parties at full liberty 
 to refer their disputes at pleasure to public or private tri- 
 bunals." But what becomes of the doctrine of revocability 
 of a submission or agreement to arbitrate, or of its being 
 void as against public policy? True it is, that after Scott 
 V. Avery, and down to 1892, English courts attempted to 
 apply the subtle distinction of Mr. Justice Coleridge be- 
 tween "access to the courts of law" and "a condition pre- 
 cedent to appeal to them" — but all that was ever neces- 
 sary in order to apply the true doctrine was to follow Lord 
 Bldon, in Waters v. Taylor, and Lord Kenyon in Half- 
 hide V. Penning, and Lord Sugden in Dimsdale v. Robert- 
 son, — and, with reverence for their antiquity, the judges 
 of Bracton's time — ^to treat the covenant to arbitrate as a 
 plea in bar, but to leave the parties free to seek relief from 
 the award in accordance with principles of Equity. 
 
 In truth, an agreement to arbitrate is a release, con- 
 ditioned upon the determination of an event subsequent. 
 
 Lord Chancellor Cranworth in the prevailing opinion, 
 in the House of Lords, asserts that the general policy of 
 
 " 5 H. L, C. 811, at p. 843. Italics ours. 
 
176 COMMERCIAL ARBITRATION 
 
 the law is "that parties cannot enter into a contract which 
 gives rise to a right of action for the breach of it, and 
 then withdraw such a case from the jurisdiction of the 
 ordinary tribunals. But surek/," he continues, "there 
 can be no principle or policy of the law which prevents 
 parties from entering into such a contract as that no "breach 
 shall occur until after a reference has been made to ar- 
 bitration." ^* He finds that "the meaning of the parties" 
 in the case at bar was "that the sum to be recovered should 
 be only such a sum as, if not agreed upon in the first in- 
 stance between the committee and the suffering member, 
 should be decided by arbitration, and that the sum so 
 ascertained by arbitration, and no other, should be the 
 sum to be recovered. " ^'* " And, ' ' remarks he, ' ' if that was 
 their meaning, the circumstance that they have not stated 
 that meaning in the clearest terms, or in the most artistic 
 form, is a matter utterly unimportant."^^ 
 
 Now we contend that this is the intendment of the par- 
 ties in every arbitration clause. There is to be no "oust- 
 ing the courts of jurisdiction" to grant relief, equitable or 
 otherwise, but there is to be a determination of what is 
 due from one to the other. 
 
 My Lord Campbell found the contract in Scott v. Avery 
 "as clear as the English language could make it, that no 
 action should be brought against the insurers until the 
 arbitrators had disposed of any dispute that might arise 
 between them."^* "That being the intention of the par- 
 ties," he asks, "is the contract illegal?" He finds "an 
 express undertaking that no action shall be brought until 
 the arbitrators have decided, and there is abundant con- 
 sideration for that in the mutual contract into which the 
 parties have entered; therefore," says he, "unless there 
 is some illegality in the contract, the Courts are bound to 
 
 " 5 H. L. C. 811, at p. 847. Italics ours. 
 "76t<?., p. 849. 
 "Ibid., p. 851. 
 
SCOTT V. AVERY 177 
 
 give it effect." " He finds "no statute against such a con- 
 tract" — "then, on what ground is it to be declared il- 
 legal?" he asks. "It is contended," he says, "that it is 
 contrary to public policy" but "that is rather a dangerous 
 ground to go upon" and upon this point he refers the 
 Lords to a very important case then but lately decided ; " 
 "but what pretence can there be for saying that there is 
 anything contrary to public policy in allowing parties to 
 contract, that they shall not be liable to any action until 
 their liability has been ascertained by a domestic and pri- 
 vate tribunal, upon which they themselves agree ?"^^ 
 
 Now, it will be recalled that the other judges had said 
 that such a covenant deprived the individual of his liberty 
 at all times to resort to the courts. But Lord Campbell 
 says, we think with truth: "It seems to me that it would 
 he a most inexpedient encroachment upon the liberty of 
 the subject if he were not allowed to enter into such a con- 
 tract. ... Is there anything contrary to public policy in 
 saying that the (Insurance) Company shall not be harassed 
 by actions, the costs of which might be ruinous, but that 
 any dispute that arises shall be referred to a domestic 
 tribunal, which may speedily and economically determine 
 the dispute ?"^^ So it seems to us. Like Lord Campbell, 
 we do not see "the slightest ill consequences that can flow 
 from such an agreement;" on the contrary, we see "great 
 advantage that may arise from it," and say with him: 
 "Public policy, therefore, seems . . . to require that ef- 
 fect should be given to the contract."^" 
 
 He distinguishes Thompson v. Charnock, it is true, be- 
 cause in that case there was simply a "clause or covenant 
 to refer to arbitration," which went no further; but he 
 finds a more recent precedent in point in the case of 
 
 " Ihid., p. 852. Italics ours. 
 
 "Egerton v. Broivnlow, 4 H. L. C. 1. 
 
 " 5 H. L. C. 811, at p. 852, 853. Italics ours. 
 
 "Ibid., p. 853. Italics ours. 
 
178 COMMERCIAL ARBITRATION 
 
 Brown v. Overbury,^^ where, as a condition of holding a 
 race, any dispute was to be referred to the stewards. In 
 the latter ease, the trial judge decided and was upheld 
 unanimously by the Court of Exchequer, that "even if the 
 horse could clearly be shown to have won, the action had 
 not accrued till the arbitrators, the stewards, had deter- 
 mined;" '^ and so there the plaintiff was non-suited. It is 
 noteworthy that my Lord Campbell could not distinguish 
 these two cases in principle. ' ' Substitute stewards for arbi- 
 trators," he says, "and it is the same question, whether 
 it is a contract of insurance, or a contract upon a horse- 
 race, which by Act of Parliament is legal. "^^ And so 
 Lord Chancellor Cranworth, Lord Campbell, and Lord 
 Brougham all concur in Judgment for the Defendant.^* 
 
 Lord Campbell's views were most favorable to arbitra- 
 tion. In Mackenzie v. Girvan '^ in 1843 he had lamented 
 the "inconvenient" and "expensive" results of the ad- 
 ministration of the rule in England as compared with that 
 of Scotland. He thought then that it was highly desirable 
 that parties should be left free to ' ' select a judge on whom 
 they place confidence as to his legal qualifications, and as 
 to his capacity to decide facts," and that in so doing 
 "they think that he will dispose of the matter more satis- 
 factorily than the regular tribunals of the country, more 
 economically perhaps, and more expeditiously, — ^and that 
 there may be no appeal to the Inner House, or to the 
 House of Lords, they therefore," says he, "select him as 
 their judge, and his judgment is to be final." As we have 
 seen, the Scotch judges always were clear "that a sub- 
 mission to arbiters is a contract by which the parties 
 commit to the entire and exclusive cognizance of the arbiter 
 
 »• 11 Exch. Eep. 715. 
 
 " 5 H. L. C. 811, at p. 855. Italics ours. 
 
 "Ibid., p. 855. 
 
 "Scott V. Avery, 5 H. L. C. 811, 25 L. J. (Exch.) 308. 
 
 "2 Bell's App. Cases 43, at p. 55. 
 
SCOTT V. AVERY 179 
 
 or arbiters named the whole matter submitted, and bind 
 themselves to abide by his or their decision in all things" 
 — and this comprehended, to their mind, "the decision in 
 law as well as in fact."'* 
 
 '^Fer Moncreiff, Lord, in Brakmrig v. Meneies (H. L.) 4 Sess. 
 Cases, 2nd Series, 274, at p. 283. Italics ours. 
 
CHAPTER XV 
 
 THE TEUE INTEEPEETATION OF SCOTT V. AVEEY (1855 
 
 TO 1894) 
 
 LoED Chancellor Cranworth, who presided at the trial qf 
 Scott V. Avery in the House of Lords, and who, as Lord 
 Coleridge later said, "was no mean authority,"^ presided 
 the same year ia the House of Lords in Drew v. Drew,^ de- 
 cided shortly prior to Scott v. Avery. He then stated his 
 understanding of the law of England clearly and forcibly. 
 His Lordship observed that, prior to 3 and 4 William IV. 
 c. 42, "if parties submitted a matter for arbitration to a 
 private tribunal to be decided by a selected person, either 
 of them might at any time, without assigning any ground, 
 revoke that Submission. That was an inconvenient, and, 
 I think I may be allowed to say, an irrational state of the 
 law," said he. . . . "/ say that was an absurd state of the 
 loM, which has since been rectified, and now the law may 
 be represented as being that neither party to a submission 
 can stop an arbitration pending its proceedings withcnit 
 first obtaining the sanction of some Court of Westminster 
 Hall, or of one of the Judges, for so doing." * 
 
 In the same year (1855) in Northampton Gas-Light 
 Company v. Parnell,^ (Common Pleas) Hilary Term, 
 Maule, J., says : ' ' The old rule upon which it was held that 
 the power of an arbitrator was revocable, was, that a power 
 not coupled with an interest, was revocable, — revocable by 
 the authority which created it. From that rule it was in- 
 
 ^ See post, p. 211. 
 
 'Drew V. Drew, 2 Macq. Eeports (H. of L.) 1, March, 1855. 
 
 ' Ihid., pp. 3, 4. Italics ours. 
 
 * 15 Common Bench Eeports 630. 
 
 180 
 
INTERPRETATION OF SCOTT V. AVERY 181 
 
 ferred — erroneously, as I think — ^that one of the parties 
 to a submission might revoke without the other. It seems 
 to me that that was allowing one man to affect the interest 
 of another. But it was an inveterate error."" This rea- 
 soning was followed not only in the House of Lords and 
 at Common Pleas, but in Queen's Bench, in the Court of 
 Exchequer, and in other courts in England. 
 
 In 1856, in Queen's Bench, in Bussell v. Pellegrini,^ it 
 appeared that a charter party for a ship provided that 
 "Should any difference of opinion arise between the par- 
 ties to this contract, either in principle or detail, the same" 
 should be referred to arbitration. The charterer claimed 
 from the ship owner damages for an alleged breach of an 
 implied warrant of seaworthiness and sought to secure a 
 reference. The ship owner refused. Then the charterer 
 commenced an action. The monthly hire coming due in 
 the meantime, the ship owner sued. The Court stays the 
 ship owner's suit, being satisfied that the charterer "had 
 always been desirous to refer all matters." 
 
 The clause itself is important. "Should any difference 
 of opinion a/rise between the parties to this contract, either 
 in principle or detail, the same shall te referred for ar- 
 bitration to two persons, one to be chosen by each con- 
 tracting party, with power to call in a third person as 
 referee, the decision of a majority of whom shall be final 
 amd binding." It will be observed that there are no words 
 as to "condition precedent to suit," etc. The clause is the 
 plain "general arbitration" clause. It is Lord Campbell 
 who speaks: "Somehow the Courts of law had in former 
 times acquired a horror of arbitration; and it was even 
 doubted if a clause for a general reference of prospective 
 disputes was legal. I never could imagine for what rea- 
 son parties should not be permitted to bind themselves to 
 settle their disputes in any manner on which they agreed. 
 
 'Ibid., p. 645. Italics ours. 
 " 6 Ellis & Blackburn 1020. 
 
182 COMMERCIAL ARBITRATION 
 
 The decision in Scott v. Avery, that an agreement thcct 
 there should he a reference before the party should he at 
 liberty to sue might he so made as to he binding, tms a 
 very wholesome decision."'' Again: "I think that both 
 the demand for the monthly hire, and the cross claim for 
 damages, arose out of the contract, and are matters re- 
 f errible within this agreement. ' ' * 
 
 In these several cases we have direct confirmation by 
 both Lord Cranworth and Lord Campbell of the legal effect 
 of Scott V. Avery. In Bussell v. Pellegrini Coleridge and 
 Wightman concur with Campbell. 
 
 Again, Baron Martin, who differed with Lord Cran- 
 worth and Lord Campbell in Scott v. Avery, says himself 
 in 1859:* "Scott v. Avery has overruled all the previous 
 decisions on the subject." "Lord Campbell certainly held 
 that an agreement to refer any dispute to arbitration is 
 binding, and that no action can he maintained until after 
 an adjudication by the arbitrator." And "I think that 
 the decision in Scott v. Avery cannot be upheld unless the 
 judgment of Lord Campbell is right." " 
 
 In 1859 an appeal was taken to the Court of Exchequer, 
 in Wickham v. Harding.^^ A contract by which defendant 
 engaged plaintiff to manage his business contains the fol- 
 lowing arbitration clause: "That in case any dispute or 
 question shall arise between the parties in respect of the 
 carrying on of the business, or otherwise, or any matters 
 connected with or in relation to this deed, the same shall 
 be decided by two persons. ..." The court stays the 
 action, and in so doing, upholds the clause. Pollock, C. B., 
 says: "The parties expressly agreed that should any dis- 
 pute arise relating to the defendant, it should be re- 
 
 ' 6 Ellis & Blackburn 1020, at pp. 1025, 1026. Italics ours. 
 
 'Ibid., p. 1027. 
 
 'Horton v. Sayer, 4 Hurlstone & Norman 643, at p. 650. 
 
 '° Italics ours. .See post, p. 186. 
 
 "28 L. J. (Exch.) 215. 
 
INTERPRETATION OF SCOTT V. AVERY 183 
 
 ferred to arbitration. Sometimes parties vxmld not enter 
 into contracts not containing such a clause." Martin, B., 
 sees strong reason for referring to arbitration, "for there 
 are no cases which juries are more apt to decide against 
 the evidence than cases of this kind, in which it is said 
 the defendant's character is concerned." And Baron 
 Bramwell remarks: "But clearly this action must invblve 
 matters of account, and they are very unfit for a jury. 
 Moreover, a bargain is a bargain, and the parties ought to 
 abide by it, unless a clear reason appears for their not 
 doing so."^^ 
 
 Seligmann v. Le BoutilUer^^ was considered in the 
 Court of Common Pleas in 1866. An arbitration clause 
 in a charter party is reviewed. "Should any dispute 
 arise between the owners and the charterers, the matters 
 in dispute shall be referred to three persons at Liverpool, 
 one to be appointed by each of the parties hereto, and 
 the third by the two so chosen; their decision, or any two 
 of them, shall be final; and, for the purpose of enforcing 
 any award, this agreement may be mxide a rule of court." 
 It should be noted, that the rule of court applied for is 
 "for the purpose of enforcing any award." Obviously, 
 if either party could revoke at will, the failure of one 
 to agree upon an arbititator would enable suit to be brought 
 by either. But the Court follows Bussell v. PelUgrini^* 
 and Wickham v. Harding.^^ 
 
 At this time, none of the judges refers to Tynior's 
 Case, Hide v. Petit, Kill v. Hollister, Milne v. Gratrix, 
 King v. Joseph or Aston v. George, and it would seem 
 as though the original judicial error were judicially cor- 
 rected. However, says Maitland, "It is perhaps the main 
 fault of 'judge-made law' (to use Bentham's phrase) that 
 
 "Italics ours. 
 
 " L. R. 1 C. P. 681. Italics ours. 
 
 " 6 E. & B. 1020, 26 L. J. (Q. B.) 75. 
 
 "28 L. J. (Exch.) 215. 
 
184. COMMERCIAL ARBITRATION 
 
 its destructive work can never be cleanly done. Of all 
 vitality, and therefore of all patent hannfulness, the old 
 rule can be deprived, but the moribund husk must remain' 
 in the system doing latent mischief. ' ' ^° Though my Lord 
 Coke's dictum regarding the revocability of a power given 
 to arbitrators is destroyed by England's highest appellate 
 tribunal, and though, seemingly, it is torn up from the 
 roots by the Lord Chancellor and his colleagues, its "mori- 
 bund husk" remains "in the system doing latent mischief." 
 Two and a half centuries of iadulgence in error have left 
 their firm impress of habit in the thinking processes of able 
 and learned men. "Absurd," "an irrational state of the 
 law," Lord Cranworth thought; "inveterate error," Maule 
 perceived. 
 
 Inveterate indeed. Like the cat, it has nine lives; 
 dropped out of the window, it comes in the back door. For 
 in the next quarter of a century, we shall see Scott v. 
 Avery "followed," "interpreted," "modified," sometimes 
 a revered precedent, sometimes neglected; but in 1894 
 the sturdy spirit of the Common Law leads it again into 
 its rightful estate. 
 
 In 1861, in Braunstein v. Accidental Death Ins. Co." 
 the following provision of a policy was considered: "... 
 in case of difference of opinion as to the amount of com- 
 pensation payable in any case, the question should be 
 referred to the arbitration of a person to be named by 
 the secretary for the time being of the Master of the 
 Rolls, and all expenses and costs should be subject to the 
 decision of such arbitrator, and the award made on such 
 arbitration was to be taken as a final settlement of the 
 question, and might be made a rule of Court. ' ' " Cromp- 
 ton, J., speaking for the Court, Blackburn, J., concurring, 
 
 " Encyclopsedia Britamiica, 11th ed., Vol. 9, p. 606, art. "English 
 Law," by F. W. Maitland. 
 " 1 Best & Smith 782. 
 "Ibid., p. 786. 
 
INTERPRETATION OF SCOTT V. AVERY 186 
 
 held that "this case comes within the principle of Scott 
 V. Avery" and added: "I think we may construe the hav- 
 ing the amount determined by a third party as part of the 
 cause of action; and a great Judge, Mr. Justice Mcmle, 
 was of this opinion." " 
 
 Commenting on this case, Judge Allen of the New York 
 Court of Appeals '"' says : "In Brainstem's case the policy 
 did not, in terms, declare that the award of arbitrators 
 should be a condition precedent to the bringing of an 
 action. The condition was to the efiEect that, in case of 
 difference of opinion as to the amount of compensation, the 
 question should be referred to arbitration, and the award 
 made should be taken as a full settlement of the question, 
 and the legal effect was to prohibit an action until the 
 amount was determined by the award. The court held 
 that the parties had used sufficient words to make the 
 reference to arbitration a condition precedent." ^^ Ac- 
 cordingly, the words "condition precedent" are unneces- 
 sary. The sole question is, Did the parties desire arbi- 
 tration for the purpose of determining their rights? 
 
 Had the Courts of England not yet made this point 
 clear? It seems not. For in 1859, in the Court of Ex- 
 chequer,^^ Pollock, C. B., refuses to sustain a plea based 
 upon an arbitration covenant because "It falls within, the 
 rule which has been acted on for above a century, and 
 according to which the superior Courts of law cannot be 
 ousted of their jurisdiction by the mere agreement of the 
 parties; or, in other words, that an agreement to refer 
 does not prevent the parties from resorting to a Court 
 of law to enforce their rights or redress their wrongs." ^' 
 
 ^ Ibid., p. 798. (I. E. "There is no decision which prevents two 
 persons from agreeing that a sum of money shall be paid upon a 
 contingency; but they cannot legally agree, that, when it is payable, 
 no action shall be maintained for it. " 8 Eich. B. 497, 498, 499.) 
 
 » 50 N. T. 250, at p. 269. 
 
 "Italics ours. 
 
 " Horton v. Sayer, 4 H. & N. 643. 
 
 "Ibid., p. 649. Italics ours. 
 
186 COMMERCIAL ARBITRATION 
 
 Baron Martin (who, it will be recalled, had himself been 
 reversed in Scott v. Avery) says in this case: "I do not 
 dissent; but I cannot distinguish this case from what is 
 laid down hy Lord Campbell in his judgment in Scott 
 V. Avery. It seems to me that, if that judgment is right, 
 this plea is good; and I think that the decision in Scott 
 V. Avery cannot be upheld unless the judgment of Lord 
 Camphell is right; although I may observe that some of 
 the learned Judges found their judgments on a contrary 
 principle. Scott v. Avery was nothing more than the case 
 of a policy of insurance, with a clause that, in the event 
 of any difference between the underwriters and the in- 
 sured, it should be referred to arbitration. Lord Gamp- 
 bell certainly held that an agreement to refer amy dis- 
 pute to arbitration is binding, and that no action can be 
 maintained until after an adjudication by the arbitrator. 
 It seems to me," says the Baron further, "that Scott v. 
 Avery has overruled all the previous decisions on the sub- 
 ject." He is of opinion, theveiore, that " If parties choose 
 to arrange that, before any action is brought on a policy 
 of insurance, an arbitrator shall ascertain the sum to be 
 paid," that seems to him "only a circuitous mode of say- 
 ing that no action shall be brought." ^^ And he is glad 
 to find that under the 11th section of the Common Law 
 Procedure Act of 1854, if action be commenced "after 
 the parties have agreed to refer any differences to arbi- 
 tration, the Court or a Judge may stay the proceed- 
 ings."^" In consequence, "That enactment," he says, 
 "renders our decision in this case of less importance than 
 it otherwise would have been. ' ' ^" 
 
 In 1862 (in Exchequer), in Tredwen v. JSoVmmi," Baron 
 Martin writes the prevailing opinion. He now holds valid 
 
 ^ Eorton v. Sayer, 4 H. & N. 643, at p. 650. Italics ours. 
 
 "Ibid., pp. 650-651. 
 
 "Ibid., p. 651. 
 
 " 1 Hurlstone & Coltman 72. 
 
INTERPRETATION OF SCOTT V. AVERY 187 
 
 a provision in an insurance policy that "all other cases 
 of dispute, of whatever nature, shall he referred in like 
 manner;" i. e., conformably to the practice at Lloyd's or 
 Eoyal Exchange, "to two professional average-staters, 
 or to two other competent persons, with power to such 
 two persons to appoint an umpire, and the award of such 
 two persons shall be final;" "and no action at law shall 
 fee brought until the arbitrators have given their decision." 
 He overrules Horton v. Sayer, in which he concurred, and 
 says: "The third rule, which is incorporated with the pol- 
 icy, after providing for disputes as to average claims 
 and claims of abandonment, expressly declares that aU 
 other cases of dispute, of whatever nature, shall be re- 
 ferred; and no action at law shall be brought until the 
 arbitrators home given their decision. The agreement is 
 clear and unambiguous, and the parties probably meant to 
 act upon Scott v. Avery and exclude the jurisdiction of 
 the Courts of law, except for the purpose of enforcing the 
 award to be made by the arbitrators." ^* Here is the very 
 clearest indication, not seven years after Scott v. Avery 
 had been decided, of what Baron Martin understood Scott 
 V. Avery to mean. He says: "A case of Horton v. Sayers 
 (supra) was cited and relied on by the plaintiff. But we 
 are of opinion that this case is governed by the case of 
 Scoit V. Avery, and not by that of Morton v. Sayers."^' 
 And by way of reinforcement: "The plaintiff is there- 
 fore in the wrong. The defendant proposed to him, to 
 refer the matter in dispute, in accordance with the third 
 rule, to which he refused to accede, and he has failed to 
 perform that which is a condition precedent to his main- 
 taining the present action."^' 
 
 His interpretation of Scott v. Avery is most lucid, and 
 once more it would seem as if Coke's dictum had been 
 
 "Ibid., p. 81. Italics the Court's. 
 
 "Ibid., p. 81. 
 
 "Ibid., p. 81. Italics ours. 
 
188 COMMERCIAL ARBITRATION 
 
 overthrown. But no. One year later, in Mills v. Ba/yley,^^ 
 Baron Martin retracts, permits counsel to cite without 
 disapproval Milne v. Gratrix and King v. Joseph, of one 
 flesh with Vynior's Case, and joins in invalidating a 
 clause, in principle the same as that in Tredwen v. Hol- 
 man. His words are: "If this agreement had been simply 
 that Neville should measure and ascertain the quantity 
 of mud removed by the plaintiff, there would have been 
 no difficulty, because he would not, strictly speaking, have 
 been an arbitrator, and the authority conferred on him 
 would have been irrevocable. But, with respect to the 
 other part (as to settlement of any disputes that might 
 arise out of the contract) I can see no distinction between 
 that and an ordinary reference of matters in dispute, 
 which is revocable. " ^^ "... I regret that the law is so, 
 and that the legislature, when they were dealing with the 
 subject of arbitration, did not in all cases prohibit the 
 revocation of references." ^^ 
 
 Even in Chancery, the Vice-Chancellor is slipping into 
 the old rut. In 1861, but eight years after Scott v. Avery, 
 there comes up Lee v. Page,^^ where articles of copartner- 
 ship provide that the parties submit all disputes to arbi- 
 tration and until such arbitration take place, neither party 
 may sue the other with reference to the affairs of the cor- 
 poration. Kindersley, V. C, holds that although an ar- 
 hitration clause is legal, there may not he a negative da/use 
 super-added to withdraw the decision of the question from 
 the tribunals of the country. 
 
 By 1867 the Court of Exchequer has swung far away 
 from the prevailing opinion in Scott v. Avery. In EUioit 
 
 »2 Hurlstone & Coltman 36. 
 
 "lUd., p. 41. 
 
 "Ibid., p. 41. Italics ours. The case is poorly presented and 
 counsel for the plea apparently made no careful study of the au- 
 thorities. 
 
 "iow Jov/mal, N. S. Vol. 30, Part I, p. 857. 
 
INTERPRETATION OF SCOTT V. AVERY 189 
 
 V. Royal Exchange Assurance Company,"^ a clause in an 
 insurance policy, almost identical with Baron Martin's 
 conception of the clause in Scott v. Avery,^" is treated as 
 void and the plaintiff is permitted to sue on the policy, 
 without a reference to arbitration. Now, Bramwell, who 
 was defendant's counsel in Scott v. Avery, takes the occa- 
 sion to say. '^ "In the argument of that case (the ar- 
 bitration clause in which was framed by Mr. Justice Cress- 
 well), Mr. Manisty and myself were counsel for the de- 
 fendants. We scarcely cited a case, but laid down a 
 proposition which was almost immediately adopted by the 
 judges below, and by the House of Lords. That proposition 
 was that if two persons, whether in the same or in a dif- 
 ferent deed from that which creates the liability, agree 
 to refer the matter upon which the liability arises to 
 arbitration, that agreement does not take away the right 
 of action. But if the original agreement is not simply to 
 pay a sum of money, but that a sum of money shall be 
 paid if something else happens, and that something else 
 is that a third person shall settle the amount, then no 
 cause of action arises until the third person has so as- 
 sessed the sum. For to say the contrary would be to 
 give the party a different measure or rate of compensation 
 from that for which he has bargained. This is plain com- 
 mon sense, and is what I understand the House of Lords 
 to have decided in Scott v. Avery." 
 
 In this opinion, Kelly, Martin and Pigott concur; but, 
 as we have already seen, the Baron was in error in his 
 construction of the decision of Scott v. Avery, just as he 
 was in error in his argument as counsel in that case before 
 the House of Lords. For research and industry he sub- 
 stituted ingenuity and subtlety — a not infrequent recourse 
 of busy and successful practitioners. Like most of the 
 
 «"L. E. 2 Exch. 237. 
 
 "Supra, p. 186. 
 
 "L. K. 2 Exch. 237, at p. 245, 246. 
 
190 COMMERCIAL ARBITRATION 
 
 English lawyers of his day, he accepted Coke's dictum 
 as part of the Common Law and searched no farther. 
 In Scoti V. Avery he permitted his adversary to cite 
 Kill V. Hollister and Thompson v. Charnock, without crit- 
 icism. 
 
 In 1870 we find Thomson v. Anderson,^' in Chancery, 
 Malins, V. C, holds too, that a general covenant in part- 
 nership articles to submit differences to arbitration is re- 
 vocable, notwithstanding the Common Law Procedure Act 
 of 1854. Counsel for the plaintiff relies on Mills v. Bay- 
 ley. Counsel for the defendant quotes Lord Cranworth 
 {Drew V. Drew^^) and Har court v. Bamsiottom. Ap- 
 parently he could find no other authorities — not even Dims- 
 dale V. Robertson. The Vice-Chancellor says: "The next 
 question is, whether this is a revocable instrument. Now, 
 upon that subject I have had much argument, and I have 
 been referred to authorities. It is not questioned that 
 before the statute 3 and 4 Will. 4, c. 42, all references to 
 arbitration were revocable until the award was made"!!^° 
 Yet, he says, "but that a person should, when he had once 
 made a reference to arbitration, be entitled from mere 
 caprice to revoke it is, in my opinion, a numstrous state 
 of thi/ngs, and it has been so regarded by many Judges."*^ 
 Nevertheless, he feels constrained to follow Baron Martin 
 in Mills V. Bayley*^ as "a distinct authority upon the 
 point," with "nothing against it but that dictum of Lord 
 Cranworth 's" in Brew v. Drew*^ — which "did not apply 
 to an English case. ' ' Therefore, he must find obsequiously 
 that the arbitration is revocable and the Common Law 
 Procedure Act had not changed the Common Law in this 
 respect. 
 
 "•L. E. 9 Eq. 523. 
 
 =»See ante, p. 180. (2 Maeq. 1, 4.) 
 
 "L. E. 9 Eq. 523, at p. 529. Italics ours. 
 
 "■Ihid., pp. 529-530. Italics ours. 
 
 "Ante, p. 188. 
 
 "See ante, p. 180. 
 
INTERPRETATION OF SCOTT V. AVERY 191 
 
 Next in order of examination is In Be Bouse and Meier 
 in the Court of Common Pleas ** in 1871, wherein "Willes, 
 J., permits himself to say, concerning the rule in Vynior's 
 Case, "my act or my words cannot alter the judgment 
 of the law to make that irrevocable which is of its own 
 nature revocable." — "That law, as to ariitrations," he 
 is betrayed into saying, "was never questioned." ^^ "In 
 the course of time it was thought desirable that submis- 
 sions to arbitration should be irrevocable," but in his 
 opinion: "The 9 & 10 Wm. 3, c. 15, was the first hut an 
 imperfect step in that direction."*^ It follows for him 
 that, since the contract in the case under review made 
 no provision for making the submission a rule of court, 
 it was revocable at the will of either party, in spite of the 
 enactment by Parliament. The influence even at this 
 late day of the dictum in Vynior's Case is clearly demon- 
 strated in the repeated references thereto by the judges. 
 Montague Smith and Brett concur. 
 
 But one year later Caledoiiiam Badway Company v. 
 Greenock and Wemyss Bay Bailwwy Co.*^ reaches the 
 House of Lords, a case where the arbitration clause reads, 
 "all differences which may arise between the parties here- 
 to respecting the true meaning or effect of this agree- 
 ment, or the mode of carrying the same into operation, 
 shall, from time to time, so often as any such questions 
 or differences shall arise, be referred to arbitration, in 
 terms of the Railway Clauses Consolidation (Scotland) 
 Act, 1845, and the provisions" (for arbitration in such 
 act) are "incorporated with this agreement ... as if 
 they were verhaiim inserted therein." This the Lords 
 sustain, Lord Kinlcch saying, "such arbitration clauses 
 are now extremely common."" 
 
 «L. E. 6 C. P. 212. 
 
 ^'Ibid., p. 217. Italics ours. 
 
 "10 Sess. Cases (3rd Series) (1871-2), 892. 
 
 "Ibid., p. 898. Italics ours. 
 
192 COMMERCIAL ARBITRATION 
 
 However, in 1876, the Queen's Bench Division holds 
 that even the Common Law Procedure Act had not made 
 an agreement to arbitrate irrevocable.*^ Blackburn here 
 cites Mills v. Bayley and Bouse v. Meier. *^ Yet he says: 
 "If the plaintiffs go on with the action there is no rem- 
 edy at all, but if the action is stayed they may get rid 
 of the stay by offering to concur with the defendant in 
 allowing the arbitrator to make his award, which it would 
 be just and proper he should make."°° And he asks: 
 "Why should not this agreement be enforced by a stay 
 of the action, assuming no reason on the merits to be 
 shewn against it?'""" But his colleagues disagree with 
 him. Quain, J., prevailing, goes back to Vynior's Case 
 for his authority (p. 754). 
 
 A year earlier (1875) arose Edwards v. The Aherayron 
 Mutual Ship Insurance Society (Limited), in Exchequer 
 Chamber (Queen's Bench Division) ,°^ a case on all fours 
 with Tredwen v. Holman. Blackiurn votes to sustain the 
 clause. Mellor is of the same opinion. He relies on Tred- 
 wen V. Holman, saying: "I think it is quite competent 
 for the society (the defendant mutual insurance society) 
 to establish a domestic forum that shall decide all disputes 
 which shall arise between the members, and that they 
 shall not resort to a court of law," etc.^^ Lv^h concurs 
 with this view. He finds that the contract means : "'We 
 hold your vessel to be insured subject to the terms ex- 
 pressed in the articles' " and, says he, "those terms are 
 that in case of loss, or a claim for loss, the whole matter 
 is to be investigated by the directors, the amount pay- 
 able, if any, is to be ascertained by them, and their de- 
 cision is to be final," etc. "This being so, the case is 
 clearly within Scott v. Avery." ^^ 
 
 '"Sandell v. Thompson, L. E. 1 Q. B. D. 748. 
 
 "See ante, p. 191. 
 
 "L. E. 1 Q. B. D. 748, at p. 753. 
 
 "L. E. 1 Q. B. D. 563. 
 
 "Ibid., p. 576. Italics ours. "Ibid., pp. 577-578. 
 
INTERPRETATION OF SCOTT V. AVERY 193 
 
 On appeal to the Exchequer Chamber, the Court below 
 is reversed. Amphlett, B., says the question whether this 
 clause is "void as being against the policy of the law" 
 is settled by Sc&tt v. Avery. He refers to Tredwen v. 
 Molmcm, ElKott v. Boyal Exchange Assurance Co. and 
 Dawson v. Fitzgerald and finds the case before him is gov- 
 erned by Tredwen v. Holman, but votes for reversal be- 
 cause the directors came to a decision without hearing the 
 plaintiff, and because they were wrbitrators. "The delicate 
 task of adjudicating between their own society and a 
 member" required them "to act judicially and with per- 
 fect fairness and impartiality between the parties." Con- 
 sequently, to come to a decision without giving the plain- 
 tiff an opportunity to be heard "was contrary to every 
 principle of justice, and ought not ... to be held, by 
 any Court of Law or Equity, to be binding upon him."** 
 
 Pollock, B., says the ease comes within Scott v. Avery, 
 Tredwen v. Holman and Elliott v. Eoyal Exchange Assur- 
 ance Co. and votes for affirmance. Archibald concurs. 
 
 Brett, J., later Lord Esher, writes for reversal. He 
 whittles down Scott v. Avery until there is little left of 
 it. He examines the rules of the defendant company and 
 finds that "The stipulations as to the procedure before 
 the average adjuster shew that those who drew the 
 rules intended that there should in all the inquiries be 
 a judicial investigation before a tribunal; which," says 
 he, "is therefore a judicial tribunal." These rules do 
 not leave "the liability to pay to be established before the 
 ordinary courts," but in fact, as it seems to him, are "in- 
 tended to create a tribunal to hear and determine every 
 question which may arise in respect of a policy made 
 with the society, and to determine everything finally and 
 compulsoril/y, so as to prevent amy g/ppUcaiion to the or- 
 dinary courts." ^^ "We may say that, in his legal inter- 
 
 ^lUd., p. 579. 
 
 "Jfetd., p. 591. Italics ours. 
 
194. COMMERCIAL ARBITRATION 
 
 pretation of the terms of the policy, the learned judge 
 was entirely correct. "Then arises the question," he 
 says, "what is the law?" Preferring to follow Sort on v. 
 Sayer,^^ he quotes the opinions of Pollock and Bramwell, 
 the latter especially upon the meaning of Scott v. Avery. 
 And here, too, he is astute, for both Pollock and Bram- 
 well, as we have already seen, had very much narrowed 
 the meaning of Scott v. Avery. Brett observes that all 
 the judges say "You cannot oust the courts of jurisdic- 
 tion." Here, he finds a clause which in practical effect 
 leaves nothing for the courts to do except enforce an 
 award. Ergo, he argues, this must be void. Kelly, C. B., 
 agrees with him but admits that "undoubtedly there is 
 much in the language of Lord Campbell in his judgment 
 which, taken by itself, might seem to shew, as Baron 
 Martia ^^ (I think, incorrectly), held, that it put an end to 
 the doctrine against the ousting of the jurisdiction of 
 the Courts." ^^ 
 
 This case is frequently cited, especially in American 
 courts, in support of the general doctrine that "You 
 cannot oust the courts of jurisdiction by a general arbi- 
 tration clause," and as indicating that Baron Martin 
 was in error in stating that Scott v. Avery had reversed 
 "all other English cases." But a closer study of the case 
 reveals that Blackburn, Mellor, Lush, Amphlett and Pol- 
 lock follow Tredwen v. EolmoM and the Cranworth-Camp- 
 bell interpretation of Scott v. Avery; while only Brett, 
 later Lord Esher, and Kelly follow Bramwell 's narrower 
 interpretation. 
 
 Seventeen years later (1892) in Trainor v. Phoenix 
 Fire Ass. Co.,^^ Lord Coleridge, then Lord Chancellor, 
 criticises Lord Esher sharply for his endeavor in the 
 
 "See ante, pp. 185-186. 
 
 " In Morton v. Sayer, 4 H. & N. 642, at p. 649. See ante, p. 186. 
 
 "'L. E. 1 Q. B. D. 563, at p. 598. Italics ours. 
 
 "•See post, pp. 211-212. 
 
INTERPRETATION OF SCOTT V, AVERY 195 
 
 Aberayron case to limit the scope and meaning of Scott 
 V. Avery as an authority, and thirty-two years later (1907) 
 in Gaw. v. British Law Fire Ins. Co., Holmes, L. J., makes 
 it clear that Brett's views were not to be treated as pre- 
 vailing in the Aberayron case; indeed, that in the later 
 case of Scott v. Mercantile Accident wnd Guarantee Ins. 
 Co., which we shall review in a moment, "Lord Esher 
 himself gave a judgment absolutely inconsistent with his 
 dicta in the Aberayron case."'"' 
 
 But in 1876, Lord Coleridge himself had not yet over- 
 come his earlier views, which, as expressed by him in 
 Scott V. Avery, differed sharply with those of Lords Cram- 
 worth and Campbell. In Dawson v. Fitzgerald (Excheq. 
 Div.) °^ he adopts Bramwell's statement: "If two per- 
 sons, whether in the same or in a different deed from 
 that which creates the liability, agree to refer the matter 
 upon which the liability arises to arbitration, that agree- 
 ment does not take away the right of action. " "^ In ex- 
 pressing his opinion in Scott v. Avery, Lord Coleridge, it 
 will be recalled, had said:"* "If two parties enter into 
 a contract, for the breach of which in any particular an 
 action lies, they cannot make it a binding term, that in 
 such event no action shall be maintainable, but that the 
 only remedy shall be by reference to arbitration." But 
 he said, "Whether this rests on a satisfactory principle 
 or not may well be questioned; but it has been so long 
 settled, that it cannot be disturbed." In 1892, however, 
 at three score years and ten. Lord Coleridge thought dif- 
 ferently.** 
 
 Lord Esher, too, went very far in the wrong direction, 
 before he returned to the true line. In 1883, as Master 
 
 "See post, pp. 213-214. 
 
 "L. K. 1 Exch. D. 257, at p. 260. 
 
 "L. E. 2 Exeh. 237, at p. 245 (Elliott v. Royal Exchange Ass. Co.). 
 
 "" 5 H. L. C. at p. 841. Italics ours. 
 
 «5ee post, pp. 210-212. 
 
196 COMMERCIAL ARBITRATION 
 
 of the Rolls in Fraser v. Ehrensperger ^^ he revives Lord 
 Coke's dictum. He says: "In Vynior's Case Lord Coke 
 says, 'If I make a letter of attorney to make livery or 
 to sue an action, &c., in my name,' 'or if I submit myself 
 to an arbitrament, although these are made by express 
 words irrevocable, or that I grant or am bound that all 
 these shall stand irrevocably, yet they may be revoked.' " °° 
 This is a case in which an agreement to arbitrate is re- 
 voked by one of the parties. Brett now holds that even 
 the statutes of Parliament (3 & 4 Wm. 4, c. 42 and Com- 
 mon Law Procedure Act, 1854) have not removed this 
 right to revoke, which he declares is "one of the inci- 
 dents of an arbitrator that he is a mandatory, and that 
 by the law of England before the mandate is completed 
 it can be revoked and withdrawn.'"' As we shall see, 
 however. Lord Esher, like Lord Coleridge, lived to mod- 
 ify these views. 
 
 Even the Act of 1889 did not stop Lord Esher at this 
 time. In 1890, in Smith & Service,^^ he reverses Coleridge 
 and Willes in the Court of Appeals and holds that, where an 
 agreement in a charter party provides for a reference to 
 three parties, one to be appointed by each of the parties and 
 the third by the two so appointed, the Court has no 
 power, "either under or apart from the Arbitration Act, 
 1889," to order a party who fails or refuses to appoint 
 his arbitrator to make such an appointment. Here he said 
 to counsel: "A Court of Equity had no power to decree 
 specific performance of an agreement to refer to arbi- 
 tration; but you suggest that the Courts of Common Law 
 had such a power." To which counsel reply: "Yes; the 
 rule of Court was in itself a decree of specific perform- 
 
 " L. B. 12 q. B. D. 310. 
 
 "Hid., p. 316. 
 
 " Ibid., p. 318. 
 
 "L. B. 25 Q. B. D. 545. 
 
INTERPRETATION OF SCOTT V. AVERY 197 
 
 ance."" Lindley, L. J., says: "If that argument were 
 sound, a great many things would follow from it. It 
 would follow that the Court could have done a great 
 number of things in arbitrations which the Court has 
 declined to do over and over again." Not always, as 
 we have seen. "In the first place, I do not see why the 
 Court should not have been asked to make an order of 
 this sort ages ago." They were and they did, only the 
 learned judge did not know it. "I cannot see why it is 
 consistent with any such theory that there should be a 
 total absence of any authority fpr the enforcement of a 
 submission in the same way that the Court has enforced 
 an award. It has long been settled law that the Court 
 will not grant specific performance of an agreement to 
 refer ; but, if this argument is sound, it is difiScult to see 
 why there should not have been specific performance of a 
 portion of the agreement — that is to say, why one party 
 should not have had a decree compelling the other party 
 to proceed and appoint an arbitrator. ' ' ''" But see later, 
 in 1916, post p. 223, and per contra Mwnchester Ship Canal 
 Co. V. 8. Pearson <& Son, Limited, in Q. B. Div., C.A., 
 L. R. Q. B. D. 1900, Vol. II, at 606. 
 
 No one discusses Halfhide v. Fenning, Walters v. Tay- 
 lor, Dimsdale v. Robertson or Harcourt v. Bamisbottom. 
 The only cases referred to at all are Gumm v. Hallett,''^ 
 Thomson v. Anderson,''^ Randell v. Thompson,''^ In re 
 Bouse and Meier," Fraser v. Ehrensperger,''^ DoAiila v. 
 Almanza.''^ 
 
 But Esher and Coleridge were not alone. In 1889, in 
 the Court of Appeal, before Cotton, Lindley and Lopes, 
 
 "Ibid., p. 547. 
 ■"Ibid., pp. 551-552. 
 " L. E. 14 Eq. 555. 
 "L. K. 9 Eq. 523. 
 "li. E. 1 Q. B. D. 748. 
 "L. E. 6 C. P. 212. 
 "L. E. 12 Q. B. D. 310. 
 " 1 Salk. 73. 
 
198 COMMERCIAL ARBITRATION 
 
 came Davis v. Starr.'''' The Common Law Procedure Act 
 of 1854 provided "that whenever the parties to any in- 
 strument in writing thereafter made 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 against the other party, or any per- 
 son claiming through or under him, 'it shall be lawful 
 for' the court or a judge, on the defendant's application, 
 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 arbitration 
 according to such agreement as aforesaid, and that 
 the defendant was, at the time of the bringing of 
 such action or suit, and still is, ready and willing to 
 join and concur in aU acts necessary and proper for caus- 
 ing such matters so to be decided by arbitration, to 
 make a rule or order staying all proceedings in such 
 action or suit, on such terms as to costs and otherwise 
 as to such court or judge may seem fit.' " The Court 
 refuses to stay an action upon an agreement for ser- 
 vices, wherein there was the following clause: "If, dur- 
 ing the continuance of this agreement, or at any time 
 afterwards, any difference shall arise between the parties 
 hereto, ... in regard to the construction of any of the 
 agreements herein contained, or to any payment, act, deed, 
 matter or thing relating to this agreement, or arising there- 
 from, such difference shall he forthwith referred to two 
 arbitrators, one to be appointed by each party in differ- 
 ence, or to an umpire to be chosen by the arbitrators be- 
 fore entering on the consideration of the matters referred 
 to them, and every such reference shall be deemed an ar- 
 bitration within the Common Law Procedure Act 1854, 
 and be subject to the provisions as to arbitration contained 
 " 60 L. T. E. 797. 
 
INTERPRETATION OF SCOTT V. AVERY 199 
 
 in the said Act." Cotton says : "Before the Act the courts 
 had held that there was no power to stay an action in 
 such circumstances, and that such an agreement ought not 
 to be enforced, as it was an attempt to oust the juris- 
 diction of the ordinary tribunals. But the Common Law 
 Procedure Act 1854, though it does not deprive the court 
 of jurisdiction to decide the dispute between the parties, 
 enables the court, by way of specific performance, to stay 
 an action which is brought in violation of an agreement 
 to refer to arbitration. ' ' ''^ Here each party charged the 
 other with breach of contract. The judge thinks "a jury 
 is not an improper tribunal for trying the action." '* 
 
 But this case is clearly overruled by Scott v. Mercan- 
 tile Accident amd Guara/ntee Insurance Company,''^ de- 
 cided in 1892, and, in 1897, by Benshaw v. Queen Anne 
 Mansions Co. ^° 
 
 In 1875, in the House of Lords, in Bremner v. Elder,'^ 
 a Scotch case came up concerning a dispute between two 
 parishes as to the settlement of a pauper. It was re- 
 ferred by them to the decision of a Society of Inspectors 
 which was in the habit of deciding such questions by vote 
 at their general meetings. Though no definite persons 
 were named and it was conceded to be uncertain what 
 members would be present, the House of Lords sustained 
 both the reference and the award. 
 
 Lord Hatherley likens this case to a general agreement 
 "to refer disputes to a body like a Chamber of Com- 
 merce" and can find no Scotch decision against it. He 
 would "be extremely sorry," he says, ". . . . for your 
 Lordships to come to any such conclusion in this or in 
 any other similar case with respect to an award decided 
 by a body like this Society of Inspectors" which seems 
 
 ■"Ihid., p. 798. 
 
 '"See post, pp. 213-214, 66 L. T. R. 811. 
 
 ""See post, pp. 214-215, L. E. [1897] 1 Q. B. D. 662. 
 
 »' 2 Sess. Cases (4tli Series) 136, at p. 143, 144, 145. Italics ours. 
 
200 COMMERCIAL ARBITRATION 
 
 to be "composed of men eminently qualified to express 
 a judgment upon a point of the character which had 
 arisen in the dispute between these parishes." These men 
 have "apparently so far acquired the confidence of per- 
 sons who might be brought into litigation for very small 
 amounts of money, for which economical and expeditious 
 justice would naturally be desired by all parties, that such 
 disputes were frequently referred to them" and His Lord- 
 ship would be "extremely sorry that a body so competent 
 as this in respect of knowledge and acquirements should 
 not be held to be in law competent to undertake the duty 
 of arbiters." He finds that their decisions are rarely 
 questioned, though they are not a corporation, but "are 
 a fiuctuating body, and it is not always, indeed but seldom, 
 that you can know who cure or who are not to ie th& 
 particular persons who will sit in judgment upon a par- 
 ticular matter. But why that should disqualify or 
 incapacitate them from being selected as arbiters ... on 
 the strength of an abstract or an a priori reasoning, it 
 appears , . . very difficult" for him "to comprehend." 
 He accordingly holds and the other Lords agree that there 
 is no authority against such a reference. This is clear 
 authority for the validity of a general reference to a 
 Board of Trade or Chamber of Commerce. 
 
 In 1878, in Queen's Bench Division on appeal from a 
 decision by Lopes, J., Cockbum and Mellor hold valid, 
 in Moffat v. Cornelius^'' a clause in a contract of sale 
 of a cargo of maize in the following form: "Should any 
 dispute arise, contract not to he void, it being agreed by 
 buyers and sellers to leave the same to be settled by twO 
 London corn factors respectively chosen, with power to 
 call in an umpire, whose decision is to be final; and this 
 stipulation to be made a rule of court of any of the di- 
 visions of the High Court of Justice in London on the 
 application of either party." Bigham, for the plaintiff, 
 
 "26 Weekly Reporter 914. 
 
INTERPRETATION OF SCOTT V. AVERY 201 
 
 says: "Where the contract itself contains an agreement 
 to refer, the cases of Scott v. Avery and Horton v. Sayer 
 apply. This case is within the decision of the Court of 
 Appeal in Randell v. Thompson." To which Cockbum, 
 C. J., replies: "The distinction there made is subtlety 
 itself. . . . Where a person has hound himself solemnly 
 to an agreement, he alone cannot revoke it. The stipu- 
 lation to refer is part of the agreement, and forms part 
 of the consideration for it." *^ Mellor was of opinion that 
 the provision of the Common Law Procedure Act of 1854 
 would be rendered "nugatory, and it might as well be 
 expunged" if the doctrine contended for prevailed. If 
 it did, says he: "Any person desiring to avoid an arbi- 
 tration might revoke at any time." °* 
 
 In 1877 we find Mellor, J., saying in another case : *' 
 "If two persons choose to agree that neither of them 
 shall have any right of action under an agreement until 
 a third person has given his decision upon the matter 
 in question, as in the case of a wager, &c., the agreement 
 is binding. It is quite reasonable that people should en- 
 deavor as far as possible to aruoid the necessity of having 
 recourse to courts of Iww."^^ 
 
 And in 1875, in Rolls Court »' (Equity), we find Sir 
 G. Jessel saying: "Certainly these arbitrations have not 
 been looked upon very favorably by courts of law. Many 
 strict and some absurd rules were laid down at a period 
 when courts of law seemed to consider a reference to 
 arbitration to be something wrong, or as an attempt to 
 oust the ordinary jurisdiction of the court. That period 
 has passed away. Both the Legislature and the Judicature 
 
 " Italics ours. 
 
 " Italics ours. 
 
 "London Tramways Company v. Bailey, L. E. 3 Q. B. D. 217, at 
 p. 221. 
 
 "Italics ours. 
 
 "Bipley v. Great Northern 'Railway Company, 31 L. T. E. 869, at 
 p. 870. Italics ours. 
 
202 COMMERCIAL ARBITRATION 
 
 rather encourage than discourage references to arbitration 
 when fairly and honestly conducted, and, so far as arbi- 
 trators have power to do so, and capacity for doing so, 
 legally conducted. ' ' ** 
 
 In 1879, in the Chancery Division,^' Piercy v. Young 
 comes up. The suit is for a partnership accounting. The 
 arbitration clause in the partnership articles is simply: 
 "Any differences or disputes which may arise between the 
 partners shall be settled by an arbitrator to be agreed 
 upon between the partners, and his decision shall be 
 final and binding upon all parties." Here was no cov- 
 enant that the submission to arbitration should be made 
 a rule of court. The suit was for an accounting brought 
 by one partner against the other. Now, Jessel, M. E., 
 says: ". . . we are all clearly of opinion that a general 
 agreement to refer matters in dispute to arbitration can- 
 not be revoked. The authorities cited have no applica- 
 tion." (The authorities cited are old friends. They in- 
 clude Mills V. Bayley and Be Uouse and Meier.) In a 
 footnote it is said that in a similar case of Christie v. 
 Noble, before Jessel, M. R., on the 16th of April, 1880, 
 "His Lordship followed the above decision, considering 
 himself bound by it. His Lordship observed thai, al- 
 though a particular submission to arbitration might be 
 revoked, a partner could no more revoke a general agree- 
 ment to refer than he could revoke any other contract in 
 the partnership articles."^" 
 
 In the main case, the suit is not stayed because the 
 judges agree that the disputes alleged are not within 
 the meaning of the articles because they do not relate 
 "to the carrying on of the partnership business." The 
 questions presented were inter alia "whether the partner- 
 
 " See study, "Arbitration as a Condition Precedent," Harvard 
 Law Eeview, Vol. 11, p. 234. 
 " L. B. 14 Ch. D. 200. 
 "Ibid., p. 203. Italics ours. 
 
INTERPRETATION OF SCOTT V. AVERY 203 
 
 ship has been dissolved and the Plaintiff has sold his 
 share" and whether certain other shares were "purchased, 
 not for the benefit of the partnership, but for the benefit 
 of the Plaintiff and the Defendant." Yet Jessel says:°^ 
 "Of course persons can agree to refer to arbitration not 
 merely disputes between them, hut even the question 
 whether the disputes between them are within the arbi- 
 tration clause.""^ 
 
 In Collins v. Locke ^'^ (1879), Sir Montague Smith, de- 
 livering the judgment of the House of Lords, says : ' ' The 
 question so raised is, whether the general arbitration 
 clause (clause 11) affords an answer to the action, there 
 having been no arbitration and no award under it. Since 
 the case of Scott v. Avery, in the House of Lords, the 
 contention that such a clause is had as an attempt to oust 
 the Courts of jurisdiction may he passed hy. . . . That 
 question must be determined in each ease by the construc- 
 tion of the particular contract, and the intention of the 
 parties to be collected from its language. ' ' "* 
 
 In 1885, in the House of Lords {Spackman v. Plum- 
 stead Board of Works ^^), a clause making the engineer 
 of the Metropolitan Board of Public Works the sole ar- 
 bitrator under a building contract is sustained upon the 
 principle that ever since Scott v. Avery, parties may pro- 
 vide any method they choose for making it "part of the 
 contract itself that the right of action, so to say, hefore 
 it could arise was to he ascertained hy the decision of 
 arbitrators; in which the right itself, the constitution of 
 the right, was not to he perfect and absolute under the 
 contract until arbitrators had decided something" and 
 that the Court had held in Scott v. Avery "that to he 
 
 " Ibid., p. 208. 
 
 "Italics ours. 
 
 "L. E. 4 App. Cas. 674. 
 
 •* Ibid., p. 689. Italics ours. 
 
 ""L. E. 10 App. Cas. 229. 
 
204. COMMERCIAL ARBITRATION 
 
 perfectly good, and that in that case, until such a decision 
 had been made, no right upon which an action could 
 he founded arose." ®* 
 
 The rule as put by Maule, J., in Scott v. Avery, in the 
 Court below "'' is frequently quoted: "There is no de- 
 cision which prevents two persons from agreeing that a 
 sum of money shall be paid upon a contingency; but 
 they cannot legally agree, that, when it is payable, no 
 action shall be maintained for it." 
 
 In 1887, in Viney v. Bignold,^^ the clause under review 
 was: "If any difference shall arise in the adjustment 
 of a loss, the amount (if any) to be paid by the society 
 shall, whether the right to recover on the policy be dis- 
 puted or not, and independently of all other questions, 
 be submitted to the arbitration of some person to be 
 chosen by both parties," (or two, with an umpire in 
 the usual fashion) "and the award of the arbitrators or 
 umpire (as the case may be) shall be conclusive evidence 
 of the amount of the loss, and the party insured shall 
 not be entitled to commence or maintain any action at 
 law or suit in equity upon his policy until the amount 
 of the loss shall have been referred and determined as 
 hereinbefore provided, and then only for the amount so 
 awarded . . . and the reference in all other respects to he 
 subject to such rules and conditions as are usually inserted 
 in orders of reference at nisi prius if the parties differ 
 about the same." 
 
 The covenant is sustained. The courts are now turn- 
 ing from the narrow construction of Scott v. Avery. 
 
 "L. E. 10 App. Cas. 229, at p. 236. Italics ours. 
 
 " 8 Exch. Eep. 487, at p. 499. 
 
 " L. E. 20 Q. B. D. 172. ' Italics ours. 
 
CHAPTER XVI 
 
 THE JUDICIAL COEKECTION OF A JUDICIAL EEROE 
 (ENGLAND, 1853-1916) 
 
 If now we spread upon the table the various leading ■ 
 eases we have been examining, we shall find it practicable 
 to set down certain definitive points as the culmination 
 of the precedents. 
 
 1. Lord Chancellor Cranworth and Lord Campbell, in 
 Scott V. Avery (1855-1856), Lord Chancellor Sugden in 
 Dimsdale v. Bdbertson (1840), Lord Bldon in Waters v. 
 Taylor (1807-8) and in Harcourt v. Ramsbottom (1820), 
 Lord Kenyon in Half hide v. Fenning (1788), Baron Jef- 
 freys in Norton v. Mascall (1685), Sir Henry Montague 
 in Browne v. Downing (1620), Yelverton and Laken in 
 8 Bdw. IV, 9 and 10 (1468), the entire bench in Erode v. 
 de Bipple (1375), the entire bench in 1389 and the Judges 
 during the reign of Henry III (1216-1272) all agree upon 
 what may now be paraphrased as follows: 
 
 "Mutual promise to abide by the award of certain men 
 is good enough to bind them to abide by the agreement;" 
 ... "it is fit that the same should be performed." If 
 either revokes, he has done something "bad in equity." 
 "Public policy requires that effect should be given to such 
 contracts," and that the parties should be left "at full 
 liberty to refer their disputes at pleasure to public or 
 private tribunals." Parties may select any means they 
 choose for determining upon what basis they shall release 
 each other, or what shall be due one from the other, and 
 arbitration is a convenient, inexpensive and desirable 
 means for accomplishing such a result. He who cancels 
 
 205 
 
206 COMMERCIAL ARBITRATION 
 
 his obligation so to arbitrate is guilty of inequity and 
 is not deserving of the aid of a court of equity. 
 
 2. The dictum in Vynior's Case that submission or 
 agreement to arbitrate is revocable at any time has dis- 
 appeared. Like an old sear disappearing under a new 
 skin, it is covered with a new doctrine — i.e. that contracts 
 which oust the courts of jurisdiction are void, as against 
 public policy. Under this doctrine, no actual revocation 
 need be made; no formal instrument equivalent in value 
 to the original grant need be executed, and actual no- 
 tice of revocation to the arbitrator becomes unnecessary. 
 If the plaintiff brings suit, it is no defense that an ar- 
 bitrament is pending or has been agreed to — even if the 
 consent be followed by an order of the court. 
 
 This is the result of Hide v. Petit (1670), Kill v. EoU 
 lister (1746), Milne v. Oratrix (1806), King v. Joseph 
 (1814). Out of all these cases, however, but one rests 
 squarely upon the doctrine of "ousting the courts of 
 jurisdiction" and this is Kill v. Hollister (directly over- 
 ruled in Half hide v. Fenning). 
 
 3. It is impossible to reconcile Kill v. Hollister, Hide 
 V. Petit, Milne v. Gratrix or King v. Joseph with the prin- 
 ciples and decisions we have set down in Proposition First 
 {supra). 
 
 4. To resolve this dilemma we must conclude that, so 
 far as precedential value is concerned, by 1856 Scott v. 
 Avery (1855-1856) in the House of Lords by Lords Cran- 
 worth and Campbell, Dimisdale v. Robertson (1840) in 
 Chancery by Lord Sugden, Waters v. Taylor (1807-8) and 
 Harcourt v. Bamsiottom (1820) by Lord Eldon had over- 
 ruled Milne v. Gratrix (1806), King v. Joseph (1814), 
 Hide V. Petit (1670), and Kill v. Hollister (1746). And 
 so far as Vynior's Case is concerned, the dictum of rev- 
 ocability w£is not only destroyed in authority by these 
 eases, but was long before then destroyed by Norton v. 
 Mascall (1685) and Browne v. Downing (1620). 
 
CORPECTION OF A JUDICIAL ERROR 20T 
 
 5. Though in Scott v. Avery all concur that "to oust 
 the court of jurisdiction" is against public policy, the 
 ratio decidendi is that it is sound policy to agree not 
 to resort to the courts of law or equity if the parties can 
 find some other way out, and they may agree that until 
 the determination of the claims of the parties is made 
 by arbitration — even though -this determination in effect 
 finally adjudicates and determines the rights of the par- 
 ties — ^no resort to the courts shall be had. 
 
 6. Referring now to another proposition — never ques- 
 tioned throughout all the decisions, viz: that the award 
 of the arbitrators, when made, is binding unless it can 
 be set aside for "matter of equity" (see Price v. WilUams ^ 
 — the case in which Lord Eldon was counsel) — we come 
 to this practical result: If the parties agree to resort 
 to arbitration they should go to arbitration. If they do so, 
 the courts will not set aside the award, save upon grounds 
 of equity. Therefore, the sole question in each case (re- 
 gardless of the particular words of the contract) comes 
 down to this: Have the parties indicated that they desire 
 — in Lord Eldon' s words, "are anxious" — that resort to the 
 courts shall not be had until the private tribunal they have 
 selected has had opportunity to pass upon the matter? 
 
 We submit that this is the clear and binding result of the 
 decision in Scott v. Avery, and of Waters v. Taylor, and 
 that all other constructions of these decisions have been 
 due to misunderstanding of their effect upon the pre- 
 ceding authorities. 
 
 We have now pictured the confused state of English 
 law upon this subject down to 1892. Is it to be wondered 
 at that American lawyers and American judges should 
 have found it difficult to believe either that the dictum 
 in Vynior's Case was no longer English law, or that Half- 
 hide V. Fennimg was authority, and more difficult still 
 to determine whether the Cramvorth-Oampbell version of 
 
 '■Supra, 
 
208 COMMERCIAL ARBITRATION 
 
 Scott V. Avery was to be taken rather than the Bramwell- 
 Esher version. Like earnest adherents to the faith, Amer- 
 ican judges asked only for authoritative versions of the 
 book. The high priests at the Bar presented late edi- 
 tions, but conflicting in chapter, verse and text. No cita- 
 tion of English cases prior to 1892 which did not give 
 all the cases and arrange them historically could, as we 
 now see it, be treated as trustworthy. 
 
 But in 1892 a change came about — ^not by act of Par- 
 liament, but through the clear analysis of English judges 
 themselves. At last the error became visible and was cor- 
 rected. 
 
 In 1894 we come to the ease of Hamlyn & Go. v. TaUsker 
 Distillery in the House of Lords (where sit Lord Chan- 
 cellor Herschell, Lord Watson, Lord Ashbourne, Lord 
 Macnaghten, Lord Morris and Lord Shand).^ Here is a 
 contract between an English and a Scotch firm containing 
 this clause: "Should any dispute arise out of this con-, 
 tract, the same to fee settled hy arbitration by two mem- 
 bers of the London Corn Exchange, or their umpire, in 
 the usual way." Was this a valid clause? The appeal 
 comes up from Scotland. The Scotch judges had held 
 that the contract was to be governed by the laws of Scot- 
 land and that as Scotch law then stood, such a clause 
 was invalid, for that no arbitrator was named in the con- 
 tract. In answer, the contention was made first of all 
 that the parties intended this to be governed by English 
 law. (The argument is referred to later.) And so the 
 Court decides. In the second place, it is argued that 
 by the law of England, such a clause is valid — ^not rev- 
 ocable. Does Coke's dictum finally prevail, or is it Half- 
 hide V. Penning and Cranworth's rule in Scott v. Avery f 
 
 The Court holds most decisively that under the law of 
 England such a clause is uaiwi. Watson, Lord, says : "The 
 jurisdiction of the Court is not wholly ousted by such 
 
 '21 Session Cases (4th Series) 21. 
 
CORRECTION OF A JUDICIAL ERROR 209 
 
 a contract. It deprives the Court of jurisdiction to in- 
 quire into and decide the merits of the case, while it 
 leaves the Court free to entertain the suit, and to pro- 
 nounce a decree in conformity with the award of the ar- 
 biter. Should the arbitration from any cause prove abor- 
 tive, the full jurisdiction of the Court will revive, to the 
 effect of enabling it to hear and determine the action upon 
 its merits. "When a binding reference is pleaded m limine, 
 the proper course to take is either to refer the question 
 in dispute to the arbiter named or to stay procedure until 
 it has been settled by arbitration. ' ' ^ 
 
 Two years earlier (1892) in the House of Lords, in 
 Caledonian Insurance Co. v. Gilmour* there had come up 
 for review a clause in which it was provided that any 
 difference as to the amount of loss or damage should he 
 referred to ariitration and no suit at law should be begun 
 until the arbitrators made their award. No arbitrators 
 were named. Here, too, it had been, argued that, as the 
 Scotch law then stood, such a clause was void and it was 
 argued further that as the case had arisen in Scotland, 
 the Scotch law should be applied. But by this time the 
 lawyers in the House of Lords understand clearly the ef- 
 fect of Scott V. Avery. Lord Herschell (Lord Chancellor) 
 says: "I may add that the reasoning of the noble and 
 learned Lords who took part in the decision of Scott v. 
 Avery appears to me completely applicable to the present 
 case. Its cogency is not affected by any of the distinc- 
 tions which then existed between the law of Engla/nd a/nd 
 that of Scotland in relation to arbitration clauses." ® And 
 Lord Watson says:° "Upon the question whether a ref- 
 erence like the present, by reason of its possibly devolving 
 upon the arbiters the decision of the matters specified 
 
 'Ibid., p. 25. 
 
 *L. B. [1893] App. Cas. 85. 
 'Ibid., p. 90. Italics ours. 
 'Ihid.,^. 96. 
 
210 COMMERCIAL ARBITRATION 
 
 . . . becomes obnoxious to the charge of invading the 
 jurisdiction of Her Majesty's Courts, the judgment of this 
 House in Scott v. Avery is a direct authority. No doubt 
 the judgment was given in an English suit; but that cir- 
 cumstance does not detract from its weight, because, until 
 modified by comparatively recent legislation, the law of 
 England went beyond that of Scotland, and held that 
 no agreement to refer future disputes to arbitrators, wheth- 
 er named or not named, could oust the jurisdiction of the 
 Courts or disable either of the contracting parties from 
 resorting to them.'" Since the terms of the policy in 
 Scott V. Avery are "substantially the same with those 
 which occur in the policy" in the case at bar, he can 
 find no distinction. He quotes freely from Lord Camp- 
 bell's opinion in Scott v. Avery and says "the main ground 
 of judgment is expressed by him in these terms (1) : 
 'Now, in this contract it is stipulated, in the most ex- 
 press terms, that until the arbitrators have determined, 
 no action shall lie in any Court whatever. That is not 
 ousting the Court of their jurisdiction, "because they have 
 no jurisdiction whatsoever, and no cause of action ac- 
 crues until the arbitrators have determined.'"'' 
 
 In the same year (1892) also, Lord Coleridge in the 
 Queen's Bench Division in Trainor v. Phcenix Fire As- 
 surance Company " had said,' the ' ' old doctrine that you 
 could not oust the jurisdiction of the court by an agree- 
 ment to refer everything, even to refer the cause of action 
 itself," was overruled in Scott v. Avery. "Whether that 
 (the "old doctrine") was a wise holding of the law is 
 not for me to say. Judges of great authority have in 
 the course of their judgments thrown considerable doubt 
 on the judgment of the Lords in that respect." Again 
 
 ' Italics ours. 
 " 65 L. T. E. 825. 
 
 •He was then 70 years old; he died two years later. See Ency- 
 clopaedia Britannica, 11th Ed., Vol. 6, p. 677, art. "Coleridge." 
 
CORRECTION OF A JUDICIAL ERROR 211 
 
 he says: "Lord Cranworth, who is no mean authority, 
 as well as that very great authority Lord Campbell, both 
 said in terms that in their judgment it did not make 
 the slightest difference whether it did refer other things 
 or not, becaiuse if it did refer other matters it was equally 
 good. Therefore Scott v. Avery," now says Lord Cole- 
 ridge, "is a ease to show not that the jurisdiction of the 
 courts has been or can be ousted, as has been some- 
 times suggested, but that you do not oust the jurisdiction 
 of the court, and do not come within the authority of 
 the earlier cases . . . because you refer the question of 
 liability, as well as the question of amount; and one of 
 the judges,*" I think in the Exchequer Chamber, certainly 
 in the House of Lords, points out that for the ascertain- 
 ment of the amount of liability it must often be essential 
 to go into the principal question of liability itself, and 
 to ascertain not only whether the liability exists to any 
 extent, hut also whether it exists at all, and, although that 
 must he so in m^ny cases, nevertheless it has never heen 
 suggested that the jurisdiction of the courts vjas ousted." ** 
 And then His Lordship makes this acute comment upon 
 the cases between 1855 and 1892 which we have been 
 studying : 
 
 "I am perfectly aware that it often happens that when 
 strong judges do not like a decision they give judgments 
 limiting the effect of the decision, amd as mMch as pos- 
 sible minimising the alteration of the law, if alteration 
 of the law there he."^^ How true this was! "Now that, 
 I take it," says he (becoming more specific), "is really 
 the substance of the reason of the judgments in Edwards 
 V. The Aberayron Company.^^ My learned brother, the 
 Master of the Rolls, goes the full length of suggesting that 
 
 "See ante, p. 174. 
 
 "Italics ours. 
 
 " Italics ours. 
 
 "34 L. T. E. 457; L. E. 1 Q. B. D. 563. 
 
212 COMMERCIAL ARBITRATION 
 
 the House of Lords did not hold, and would have been 
 wrong if it had held, that a submission to arbitration of 
 all matters in dispute mould ie a good condition precedent 
 to the maintenance of an action on any of them^"^* 
 "But," says Coleridge, "he stood alone in that respect" 
 — ^which is a little unfair to the learned Master of Rolls, 
 because, as we have seen, he did have company in "lim- 
 iting the effect" of Scott v. Avery; Kelly, C. B., stood with 
 him in that case and in other eases. Lord Coleridge him- 
 self had adopted Bram well's explanation of Scott v. Av- 
 ery." But my Lord Coleridge 's ripe judgment ^^ condemns 
 only such clauses as these: "we agree that no cause of 
 action under any circumstances shall arise upon this pol- 
 icy with which the courts shall deal," or "under no cir- 
 cumstances shall the courts of lam have anything to do 
 with disputes arising under this clause." Such clauses 
 would be void, because they would "close the doors under 
 all circumstances, and under every conceivable state of 
 the case." And so it is held clearly that, under Scott 
 V. Avery, the very liability itself may be determined by 
 arbitration and the determination of arbitrators in such 
 a case is a condition precedent to any application to the 
 courts. 
 
 Coleridge does not rest his view, it will be observed, 
 upon the Arbitration Act of 1889 — ^he does not even refer 
 to the statute law. Collins, J., his colleague, does refer 
 to it as indicating that because at Common Law there was 
 no existing means of effectuating arbitration covenants, 
 the Legislature had said, "We vnll enable a judge to com- 
 
 " Italics ours. 
 
 "Dawson v. Fitzgerald, ante, p. 195. 
 
 ""On the whole, he was not so strong a man in his judicial ca- 
 pacity as Campbell or Cockburn; but it must be admitted that his 
 scholarship, his refinement, his power of authority, and his character 
 raised the tone of the bench, while he sat upon it, and that if it has 
 been adorned by greater judicial abilities, it has hardly ever known 
 a greater combination of varied merits." Encyclopaedia Britannica, 
 11th Ed., Vol. 6, p. 677. 
 
CORRECTION OF A JUDICIAL ERROR 213 
 
 pel a party under such a contract, although he now re- 
 fuses to carry it out, to have the question not simply of 
 liability, hut the amount, or whatever com^s within the 
 contract, decided, not iy the tribunals of the country, hut 
 by a private tribunal, namely, arbitration."" "How can 
 it be said that it is contrary to public policy that private 
 tribunals should determine the question of liability?" asks 
 Collins, when "the attitude of the Legislature towards pri- 
 vate tribunals" is to give "power to a judge to compel 
 the parties to an agreement to oust the jurisdiction of 
 the Superior Court." He says further (concerning the 
 Arbitration Act of 1889): "That clause, as I under- 
 stand it, being merely a re-enactment of the old section 
 of the Common Law Procedure Act, was meant to meet 
 the difficulty where, there being a cause of action, the 
 parties had agreed that the cause of action should be 
 ascertained by arbitration. In that state of facts, there 
 was no means, at Common Law at all events, whereby the 
 parties could be made to carry out their agreement, and 
 try by private tribunal instead of trying by the courts, 
 and therefore discretion was given to the judge to in- 
 terfere and stay." In other words, as the judges now 
 understand it, the arbitration covenant was not a nullity 
 — it was merely unenforceable by specific performance. 
 The Act of 1889 did not change the right. It merely ex- 
 tended the remedy. The failure to apply the remedy of 
 specific performance was judicial error. If Baron Jef- 
 freys and Sir Henry Montague had been followed in- 
 stead of Lord Coke, no such difficulty would have arisen. 
 In 1892 also the Court of Appeal (Lord Esher, M.R., 
 Fry and Lopes, JJ.) in Scott v. Mercantile Accident and 
 Guarantee Insurance Go}^ had held valid a clause read- 
 ing: "If any dispute or difference shall arise between 
 the assured, or any claimant under this policy, and the 
 
 "B£|,ron Jeffreys' doctrine is at last vindicated. Ante, p. 135. 
 »66 L. T. E. 811. 
 
214 COMMERCIAL ARBITRATION 
 
 company as to any claim for loss or any other claim against 
 the company, or in any way relating to or arising out 
 of this policy, all such disputes or differences shall be re- 
 ferred to the decision of an arbitrator to be appointed 
 by the parties . . . and any such arbitration in England 
 may be made a rule of court and the company shall not 
 he liable in respect of any claim for loss, or for any act, 
 neglect, or default in the execution of any of the powers 
 and authorities given to it hy the policy or otherwise, 
 unless and until the liability of the company and the 
 amount thereof, if not admitted, shall have been deter- 
 mined by such arbitrator, arbitrators, or umpire, whose 
 award thereon shall be a condition precedent to any li- 
 ability of the company or any right of action against the 
 company in respect of such claim, and the award only 
 shall he sued upon." 
 
 Now Lord Esher says: "The effect of the clause in 
 this policy is governed by the decision in Scott v. Avery, 
 and arbitration is a condition precedent to the plaintiff's 
 right of action," thus clearly reversing his dictum iu 
 Edwards v. Aberayron Mutual Ship Ins. Society,^^ as 
 (1892) Lord Coleridge pointed out in Trainor v. Phoenix 
 Fire Assurance Co. and Holmes, L.J., pointed out in 1907 
 in Gww V. British Law Fire Insurance Co.^° 
 
 In 1897, in a case in the Queen's Bench Division,^^ the 
 contract for the employment of the plaintiff for five years 
 contained a provision that "if at any time any dispute, 
 difference, or question should arise between the defendants 
 and the plaintiff touching their or his rights or liabili- 
 ties under the agreement or otherwise ... it should be 
 referred to the President for the time being of the In- 
 stitute of Civil Engineers, or to such other person as they 
 
 "Ante, pp. 192-194. 
 ''See post, p. 219. 
 
 ^SenshoAU v. Queen Anne Mansions Co., L. E. [1897] 1 Q. B. D. 
 662. 
 
CORRECTION OF A JUDICIAL ERROR 215 
 
 should agree on as sole arbitrator. ..." Althougli this 
 is on all fours with Davis v. Starr '^ and should have been 
 controlled by it, Lord Esher attempts to distinguish the 
 cases, asserting "that the defendant there was not ready 
 and willing to submit the whole matter to arbitration, but 
 was only ready and willing to refer the assessment of 
 damages." He observes: 
 
 "I cannot see any ground for the contention that by 
 the dismissal of the plaintiff the whole contract was put 
 an end to so as to be no longer existing. The question 
 was whether the dismissal of the plaintiff was a breach 
 of the contract hy the defendants, and, by virtue of the 
 provision for reference of any dispute to arbitration con- 
 tained in the contract, I think the judge had power to 
 make the order (of stay). . . ."^' Chitty, J., concurs: 
 "As I read the case (of Davis v. Starr), the view on 
 which the Court really acted was that the defendant was 
 only ready and willing to refer som£ part of the dispute, 
 and not the whole." ^* 
 
 But in Davis v. Starr it is clear that the court rested 
 its decision upon two grounds, one of which was, that the 
 plaintiff's dismissal of the defendant put the whole con- 
 tract into question. 
 
 In the last decade of the century, we find that under a 
 general provision in articles of copartnership for arbitra- 
 tion of all matters in difference between them an arbi- 
 trator has power even to award a dissolution of the part- 
 nership. ^° 
 
 In Belcher v. Boedean School Site and Buildings Lim~ 
 
 ^L. E. 41 Ch. D. 242. 
 
 " Italics ours. 
 
 "Italics ours. 
 
 " Walmsley v. White, 40 W. E. 675 (1892), reversing Joplin v. 
 Postletfmiaite, 61 L. T. E. 629 and following Bussell v. Sussell, L. E. 
 14 Ch. D. 471, 28 W. E. Dig. 154; Vawdrey v. Simpson (1895), per 
 Chitty, J., 65 L. J. (Ch.) 369, L. E. [1896] 1 Ch. 167, 44 W. E. 123; 
 Belfield v. Bourne (1894), 8 E. 61 (1894), L. E. [1894] 1 Ch. 521, 63 
 L. J. (Ch.) 104. 
 
216 COMMERCIAL ARBITRATION 
 
 ited^^ decided in the Court of Appeal, the arbitrator is 
 the architect for one of the parties. Collins, M.R., says: 
 "It is nothing unusual for the parties to a building con- 
 tract knowingly to submit their differences to an arbi- 
 trator who is not, and is not expected to be, absolutely 
 unbiassed. In these eases, where the builders dispute what 
 the architect has done, they will ex hypothesi think that 
 the architect is in the wrong, and, perhaps, so grossly 
 wrong, as to be even fraudulent. But is the mere fact 
 of such a dispute to be allowed to rescind the terms of 
 the agreement, and oust the jurisdiction of the architect, 
 the arbitrator agreed on by the parties? Certainly n^ot." ^^ 
 Now, observe, it is the jurisdiction of the arbitrator which 
 is not to be ousted by the courts. ' ' Can one of two parties, 
 by making the most injurious charges against the arbi- 
 trator, charges which in this ease . . . are founded on 
 very scanty materials, at once oust his jurisdiction f""^ 
 "To hold that," says the Master of the Rolls, "would open 
 a wide door for all sorts of attempts to get rid of arbi- 
 trators deliberately chosen by the parties to contracts, and 
 to avoid stipulations for the prompt decision of disputes 
 by named persons chosen because they are instructed and 
 informed, on whose decision one party is entitled to insist, 
 and to whose decision the other is bound to submit, unless 
 he can show some real bias on the part of the arbitrator 
 which was not contemplated when he was chosen." 
 
 So also in 1893, in Jackson v. Barry BaUway Co.'^ Lord 
 Chancellor Bowen had said: "It is no part of our duty 
 to approach such curiously-coloured contracts with a de- 
 sire to upset them or to emancipate the contractor from 
 the burden of a stipulation which, however onerous, it was 
 worth his while to agree to bear. To do so, would be to 
 
 =■85 L. T. E. 468 <1901). 
 
 "Ibid., p. 471. Italica ours. 
 
 "Italics ours. 
 
 "li. E. [1893] 1 Ch. D. 238, at p. 247. 
 
CORRECTION OF A JUDICIAL ERROR 217 
 
 attempt to dictate to the commercial world the conditions 
 under which it should carry on its husiness." 
 
 In 1902, in the House of Lords, in Spurrier et al. v. La 
 Cloche/"' a Jersey fire policy contained an arbitration 
 clause. The Court held that whether it were treated as 
 an English contract or as a Jersey contract the arbitra- 
 tion clause was valid. "That the intention of the parties 
 to a contract is the true criterion by which to determine 
 by what law it is to be governed is too clear for contro- 
 versy" (citing Harrdyn & Co. v. Talisker Distillery Co.) 
 but in Jersey as well as in England, Scott v. Avery is 
 now controlling and the Court repeats with approval the 
 observation of Maule, J., to which we have already re- 
 ferred, "There is no decision which prevents two persons 
 from agreeing that a sum of money shall be payable on 
 a contingency; but they cannot legally agree that when 
 it is payable no action shall be maintained for it." 
 
 In 1903,'^^ there comes up a policy of insurance which 
 provides that "ail the parties interested expressly agree 
 to submit to the jurisdiction of the Court's hawing jurisdic- 
 tion in such matters of Budapest." It is held ia King's 
 Bench that this urns a submission to arbitration, binding 
 upon the courts of England, following Law v. Garrett and 
 Hamlyn <& Co. v. TaUsker Distillery. Eomer, L. J., says: 
 "It is not as if the insurance company alone merely agreed 
 to submit themselves to the jurisdiction of the Courts at 
 Budapest. Here both the parties to the contract have mutu- 
 ally agreed tl)>submit. If the parties, instead of agreeing to 
 submit all dispi^es that might arise under the contract 
 to the Courts at Budapest, had agreed to submit them 
 to a named arbitrator, there could not possibly be any 
 doubt that the person named was the arbitrator to de- 
 
 ="71 L. J. (P. C.) 101; L. R. [1902] A. C. 446; 86 L. T. E. 631; 
 51 W. E. 1; 18 T. L. E. 606. 
 
 =' Austrian-Lloyd Steamship Co. v. Gresham lAfe Assurance Society, 
 Urn., 72 L. J. (K. B.) 211. 
 
218 COMMERCIAL ARBITRATION 
 
 cide any disputes. I think the meaning here is the same." '^ 
 The courts of England thus permit themselves to be ousted 
 of jurisdiction by the agreement of the parties, even by the 
 courts of Austria-Hungary. 
 
 In 1907, in Gaw v. British Law Fire Insurance Co.,^^ 
 Scott V. Avery comes up once more for interpretation. The 
 case illustrates markedly with what persistence the doctrine 
 of revocability fights for its life and how, somewhere and 
 somehow, it regains a footing. Here the insurance com- 
 pany argued that a claim under a policy of insurance 
 was fraudulent. The plaintiff insisted that this issue, 
 like any other, should go to arbitration under the cov- 
 enant to submit all differences to arbitration. Mr. Justice 
 Eoss, in the court below, quotes and follows Mr. Justice 
 Coleridge's argument in Scott v. Avery: "The Courts 
 will not enforce or sanction an agreement which deprives 
 the subject of that resource to their jurisdiction, which 
 has been considered a right inalienable even by the con- 
 current will of the parties" and says: "The right to 
 meet a charge of fraud before the King's public tribu- 
 nals is a right that no man can part with against his 
 will." Judge Eoss refused to apply Scott v. Avery, say- 
 ing, "While the decision of Scott v. Avery is accepted by 
 all Courts, the language of Lord Campbell," in his judg- 
 ment, "goes much further than was necessary, and has 
 given rise to a good deal of misconception and confusion. 
 It is calculated to create an impression that where an 
 agreement to refer all differences exists, accompanied by 
 words indicating that an award is a condition precedent 
 to. legal proceedings, a party can be forced before the 
 private tribunal, no matter what the nature of the dif- 
 ferences may be." But on appeal. Holmes, L. J., writing 
 the opinion, says (concerning Scott v. Avery) : "It will 
 not be denied that that decision legalizes a stipulation in 
 
 "Italics ours. 
 
 »» [1908] 1 I. E. 245. 
 
CORRECTION OF A JUDICIAL ERROR 219 
 
 a contract that any difference as to the amount of liabil- 
 ity thereunder is to be referred to arbitration, and that 
 no action can be maintained until the amount is so settled, 
 and then only for such sum as shall be awarded. Speaking 
 for myself, however, ' ' says he, " I have always been of opin- 
 ion that Scott V. Avery went farther than this, and is an 
 authority that a contract may legally provide that where 
 a difference arises thereunder relating to other matters 
 than amount, no liahility is to arise, and no action is to he 
 maintained until the matter of difference has been made 
 the subject of arbitration and award. This," says the 
 learned judge, "has been not only my opinion, but is, I 
 think, the view generally taken by lawyers during the last 
 forty years." ^* He quotes Martin, B., in Tredwen v. 
 Eolman^^ and disapproves of Brett's dictum in Edwards 
 v. Aberayron Mutual Ship Ins. Society. He says: "Lord 
 Esher, then Brett, J., distinctly, and Kelly, C. B., with 
 more doubt, took the narrow view of Scott v. Avery on 
 which Mr. Justice Ross has acted. It must, however, be 
 remembered that in doing so they not only differed from 
 the majority of the Exchequer Chamber, but from the 
 three judges of the King's Bench. The Aberayron Case 
 has, as far as I am aware, been only referred to in one 
 subsequent English case, Trainor v. The Fire Insurance 
 Co.,^^ in which Lord Esher 's view of the effect of Scott 
 V. Avery was dissented from; and in Scott v. Mercantile 
 Ace. & Guarantee Ins. Co. Limited (see our reference 
 supra) Lord Esher himself gave a judgment absolutely 
 inconsistent with his dicta in the Aberayron case." Lord 
 Justice Holmes then quotes with approval Lord "Watson's 
 words in Caledonian Ins. Co. v. Oilmour (which we have 
 quoted at p. 209), regarding the principle of Scott v. 
 Avery. Accordingly, Judge Ross is reversed. The holding 
 
 "Italics ours. 
 ''Ante, pp. 186-187. 
 ••65 L. T. E. 825. 
 
220 COMMERCIAL ARBITRATION 
 
 is that even an issue of fraud must be left to arbitration. 
 And so Lord Cranworth 's interpretation of Scfftt v. Avery 
 is once more made effective. 
 
 If we may trust the modern laborers on such works 
 as "Cases cited, distinguished and overruled," we can say 
 with certainty that after 1892 Vynior's Case is not even 
 referred to by an English court. 
 
 In 1914 in Admiralty a clause in a bill of lading pro- 
 vided that any dispute concerning the interpretation of 
 the bill of lading was "to he decided in Hamburg accord- 
 ing to German law." It is clearly held that this clause 
 must be treated as a submission to arbitration within the 
 meaning of Section 4 of the Arbitration Act, 1889, and 
 that, although a tribunal at Hamburg was not specified, 
 the contract meant that disputes as to its interpretation 
 were to be tried by the competent court in Hamburg and 
 in accordance with the German law-'^ The Court now 
 says: "In dealing with commercial documents of this kind, 
 effect must be given, if the terms of the contract permit 
 it, to the obvious intention ajid agreement of the parties. 
 I think the parties clearly agreed that disputes under 
 the contract should be dealt with by the German tribunal, 
 and it is right to hold the plaintiffs to their part of the 
 agreement. Moreover, it is probably more convenient and 
 much more inexpensive, as the disputes have to be de- 
 cided according to German law, that they should be de- 
 termined in the Hamburg court." In this contract the 
 entire clause read: "Any disputes concerning the inter- 
 pretation of the bill of lading are to be decided in Ham- 
 burg according to German law." The Court cites Law 
 V. Garrett (38 L. T. Eep. 3; 8 Ch. Div. 26), Austrian 
 Lloyd Steamship Company v. Gresham Life Assuramce 
 Society Limited (88 L. T. Rep. 6; (1903) 1 K. B. 249), 
 
 "The Cap Blanco, 83 L. J. (P.) 23 (1913); 109 L. T. R. 672; 
 29 T. L. E. 557. Evans, P. Appeal withdrawn. See 83 L. J. (P.) 
 23. 0. A. 
 
CORRECTION OF A JUDICIAL ERROR g21 
 
 Logan v. Bank of Scotland (94 L. T. Rep. 153; (1906) 1 
 K. B. 141), and Kirchner and Co. v. Grubam (99 L. T. Rep. 
 932; (1909) 1 Ch. 413) that such a clause is a submission 
 to arbitration within the meaning of Sect. 4 of the Ar- 
 bitration Act of 1889. "The tribunal at Hamburg is not 
 specified, but a fair business like reading of the contract 
 nvernis that such disputes are to be tried by the com- 
 petent court in Hamburg, amd in accordance with Ger- 
 man lam." 
 
 But the old error dies hard. In 1912 we find the 
 King's Bench Division, Fletcher Moulton, L. J., saying:*' 
 "Very early in the history of arbitration there arose the 
 question whether a party to a contract containing an ar- 
 bitration clause was precluded thereby from appealing to a 
 Court of law to enforce his rights under the contract. The 
 answer which the Courts gave to this question admits of no 
 doubt. They decided that no provision in a contract which 
 ousted the jurisdiction of the Courts of lam could be 
 valid, but that a clause agreeing to refer disputes to ar- 
 bitration was valid because it did not oust the jurisdiction 
 of the Courts. In other words they decided that the ju- 
 risdiction of the Courts to compel a defendant to appear 
 before them, amd their jurisdiction to pronounce finally 
 and conclusively on the rights of the parties after due 
 hearing, were left untouched by such a clause . . . or even 
 by proceedings having been commenced under such a sub- 
 mission. Neither a general agreement to submit disputes to 
 arbitration, nor the submission of the dispute in question 
 to a particular arbitrator, nor even the pendency of an 
 arbitration thereon, could be pleaded in answer to a claim 
 in an action." *° It is inconceivable that an English judge 
 could so misstate the law. It is like Judge Ross's error 
 in Gaw v. British Law Fire Insurance, or Lord Esher's 
 in the Aberayron Case. When one turns to the cases 
 
 "Doleman #• Sons v. Ossett Corporation, L. E. [1912] 3 K. B. 256. 
 "Italics ours. 
 
COMMERCIAL ARBITRATION 
 
 cited by counsel, one is astounded to find neither Halfhide 
 V. Fenwing, Waters v. Taylor, Harcourt v. Bamshottom, 
 Dimsdale v. Bohertson, nor, in fact, any case later than 
 Smith and Service*" (1890), except Pearson & Son, Ltd. 
 V. Dublin Corp. (L. R. [1907] A. C. 351). Thompson v. 
 Charnock, Mitchell v. Harris and Harris v. Beynolds *^ are 
 as far back as either counsel or Court cares to go. 
 
 In this case the Court refuses to enforce an agreement 
 whereby the defendant's engineer should determine any 
 question that should arise in the course of a work of 
 construction "touching or concerning the works, or re- 
 lating to quantities, qualities, description, or manner of 
 work done, executed, or to be done and executed by the 
 contractor, or to the quantity and quality of the materials 
 &e.," — in short, the case is one of the usual architect's or 
 engineer's certificate. The certificate of the engineer is 
 held to be invalid and of no value whatever. 
 
 Vaughan Williams, L. J., dissents: "As between the 
 parties the agreement of reference was not revoked by the 
 refusal of the judge at chambers to grant a stay of the 
 action. It is true that, generally speaking, the obstacles in 
 the way of the arbitrator, if one of the parties refuses to 
 attend, are so great that it is difficult, and sometimes prac- 
 tically impossible, for the arbitrator to go on with the 
 arbitration ; but if the arbitrator gets over these difficulties 
 and goes on and makes his award, I think his award con- 
 stitutes accord and sober facts." 
 
 By 1913, however, we find the Privy Council holding, 
 in an appeal from Canada, that "When an arbitration for 
 any reason becomes abortive, it is the duty of a Court 
 of law, in working out a contract of which such an arbi- 
 tration is part of the practical machinery, to supply the 
 defect which has occurred. It is the privilege," note the 
 word, "of a Court in such circumstances and it is its 
 
 "L. B. 25 Q. B. D. 545. 
 " 7 Q. B. 71. 
 
CORRECTION OF A JUDICIAL ERROR 223 
 
 duty to come to the assistance of parties by the removal 
 of the impasse and the extrication of their rights."*^ 
 "This rule," says Lord Shaw, delivering the judgment 
 of their Lordships, "is in truth founded upon the soundest 
 principle" (note that he does not rest it upon Parliamen- 
 tary legislation), "it is practical in its character, and it fur- 
 nishes hy an appeal to a Court of justice the means of 
 working out and of preventing the defeat of bargains be- 
 tween parties."*^ And now, in the year of our Lord 
 1913, his Lordship believes: "It is unnecessary to cite 
 authority on the subject, but the judgment of Lord Watson 
 in Eamlyn <& Co. v. Talisker Distillery^* (from which we 
 quote at p. 208 amte) might be referred to." The question 
 before the Lords, says his Lordship, "went in principle 
 to the incapacity of a Court of law to effectuate justice, 
 hy itself undertaking a duty to supply a defect which had 
 occurred in the prescribed mode of ascertaining the rights 
 of parties."*^ That was a "long, long way" to go from 
 my Lord Coke in Vynior's Case. It took over three cen- 
 turies. 
 
 The decision does not refer to the Arbitration Act of 
 1889 ; it flows from the spirit of the Common Law. 
 
 In a very recent case (May, 1916), there comes before 
 King's Bench a contract containing the following clause: 
 "Any dispute on the contract to be settled by arbitration 
 in the usual manner, for which purpose it may be made 
 a rule of Court." *^ One of the parties was a firm of 
 cotton-spinners and the other was a firm of chemical manu- 
 facturers. Owing to war conditions, a dispute arose con- 
 cerning the furnishing of a supply of Epsom salts. Under 
 the arbitration clause, the chemical manufacturers named a 
 
 "Cameron v. Cuddy, L. E. [1914] A. C. 651, at p. 656. 
 
 "Italics ours. 
 
 "li. R. [1894] A. C. 202. 
 
 «L. E. [1914] A. C. 651, at p. 658. Italics ours. 
 
 "Bright v. Gibson, 32 T. L. E. 533. 
 
224 COMMERCIAL ARBITRATION 
 
 Mr. Heap as their arbitrator and delivered a notice to 
 the cotton-spinners calling upon them to name their ar- 
 bitrator. Upon failure to name another arbitrator, Mr. 
 Heap notified the parties to attend before him and the 
 cotton-spinners refused to attend. Mr. Heap proceeded 
 without them and awarded the chemical manufacturers 
 all they claimed. Then counsel for the cotton-spinners 
 made application to the Court to set aside the award upon 
 the ground that, the arbitration not having been had in 
 accordance with the Arbitration Act of 1889, it was in- 
 valid, inasmuch as under that Act there should have been 
 a reference to a sole arbitrator named by both parties joint- 
 ly, or, in default of agreement, to an arbitrator appointed 
 by the Court under Section 5 of the Act. "The phrase 
 'in the usual manner,' " argued Mr. du Parcq, "must 
 mean 'in accordance with the law of the land.' " On the 
 other hand, the respondents claimed that the phrase meant 
 "according to the custom of our particular trade." Mr. 
 Justice Rowlatt (Rowlatt and Sankey, JJ.) delivers the 
 judgment. The Court refuses to accept the interpretation 
 that "in the usual manner" means as a matter of law, 
 "in accordance with the Arbitration Act, 1889." "The 
 Court did not think that that was so. They thought 
 that the clause referred to 'the hahituM form of a/rhi- 
 tration adopted in fact.'"*^ The applicants were 
 given opportunity to show what the habitual form was, 
 but their application to set aside the awar'd was 
 denied. 
 
 Accordingly, the Common Law of England may now be 
 taken to be that when business men insert in a commer- 
 cial contract a clause that "Any dispute on the contract 
 shall be settled by arbitration in the usual manner," it 
 is not to be arbitrated in accordance with the Arbitration 
 Act of 1889, even though the words be added "for which 
 
 "Italics ours. 
 
CORRECTION OF A JUDICIAL ERROR 225 
 
 purpose it may be made a rule of Court," but the habit 
 or custom of the trade shall be inquired into, and, when 
 established, the parties will be required to proceed in 
 accordance with "the habitual form of ariiitration adopted 
 in fact." 
 
CHAPTER XVII 
 
 HOW ENGLISH EEEOB WOEKED INTO AMERICAN LAW 
 
 It will be unnecessary to study all the American eases. 
 With the exception of a few brave pioneers who did some 
 original thinking, one State is like another. Like math- 
 ematical computations proceeding with erroneous certain- 
 ty from initial error, they arrive at the same place, as 
 they proceed from Vynior's Case or Kill v. Hollister. To 
 fix the precise point where the court went driving along 
 the wrong highway we need but fix the date of the case 
 and study the citations. If we see Milne v. Gratrix, King 
 V. Joseph, Aston v. George, Thompson v. Chamock, or 
 Mitchell V. Harris, stated as "final and conclusive author- 
 ities," we need search no farther — we shall know the case 
 at once as a pretender — not. a real heir to the throne. 
 Even if Scott v. Avery is cited, we shall need to look 
 farther and learn whether or not the court followed the 
 Bramwell-Esher or the Cranworth-Campbell interpretation 
 of it. But that few American courts have been set upon 
 the right highway we may be certain, for the Bar has not 
 been assiduous to straighten the signposts. "2 M. to 
 Vynior's Cafe" and a rest for luncheon has been an- 
 enticing avenue to an easy destination. Of course, the 
 older milestones. Erode v. de Ripple, Browne v. Downing 
 — the cases in Bracton or Statham — ^these have been so 
 long buried under the moss and ferns that it were almost 
 sacrilege to disturb them.^ 
 
 *For a eomparison of early Massachusetts cases with the English 
 cases see "Arbitration as a Condition Precedent," Harvard Law 
 Eeview, Vol. 11, p. 234. 
 
 226 
 
ENGLISH ERROR IN AMERICAN LAW 227 
 
 It will, perhaps, facilitate the study of the American 
 cases if we arrange their English relatives in some line 
 of family connection, according to dates of birth and upon 
 one side or the other. Taking any American case we can 
 then at once trace its ancestry, if we but examine its date 
 and refer to the English cases upon which it rests. 
 
 By 1872, Scott v. Avery, Tredwen v. Holmcm and Braun- 
 stein V. Accidental Death Ins. Go. had been decided. As 
 we have said, however, these were but one set of sign- 
 
 FOR Revocability 
 
 Against Revocability 
 
 (1609) Vynior's Case 
 (1670) Hide V. Petit 
 (1746) Kill V. HoUister 
 
 (1743) Wellington v. Mack- 
 intosh 
 (1793) Mitchell V. Harris 
 (1799) Thompson v. Char- 
 nock 
 (i8o5) Milne v. Gratrix 
 (1S14) King V, Joseph 
 (1819) Aston II. George 
 
 1 Coke's i 
 fluence 
 
 Coke-Hard- 
 \ncke influ- 
 ence 
 
 Sayer 
 
 Horton 
 (Exch.) 
 
 Lee V. Page (Ch.V.C.) 
 
 Mills V. Bayley 
 
 Elliott V. Royal Exch. 
 Ass. Co. (Exch.) 
 
 Thomson v. Ander- 
 son (Ch.V.C.) 
 
 Re Rouse and Meyer 
 (C.P.) 
 
 Edwards v. Aberayron 
 Mutual Ship Ins. 
 Soc. (Exch.Ch.) 
 
 RandaU v. Thomp- 
 son (O.B.D.) 
 
 Dawson v. Fitzgerald 
 (Exch.Div.) 
 
 (1883) Fraser v. Ehrens- 
 perger (Q.B.D.) 
 
 (1889) Davis V. Starr (C. of 
 
 A.) 
 
 (1890) In re Smith 6* Ser- 
 
 vice and Nelson b* 
 Sons (Q.B.D.) 
 
 (i8S9) 
 
 (1861) 
 (1863) 
 (1867) 
 
 (1870) 
 
 (1871) 
 
 (i87S) 
 
 (1876) 
 (1876) 
 
 Coleridge- 
 Bramwell- 
 Brett in- 
 fluence 
 
 I (1788) Halfhide v. Fenning 
 
 Lord Ken- 
 yon 
 
 Eldon's de- ( (1807-8) Waters v. Taylor 
 cisions ] (1830) Harcourl v Rams- 
 bottom 
 
 Sugden fol- 
 lowing El- I 
 don's deci- 
 sions and ] 
 Halfhide V. 
 Fenning 
 
 (1840) Dimsdale 
 son 
 
 V. Robert- 
 
 Cranworth- 
 Campbell 
 influence 
 
 (18SS) 
 (18SS 
 (i85S) 
 
 (18SS) 
 (18S6) 
 (i8S9) 
 (l852) 
 {1866) 
 (1872) 
 
 (i87S) 
 
 (I87S) 
 (1877) 
 (1878) 
 (1879) 
 (1879) 
 (188s) 
 
 (1887) 
 
 Scott V. Avery (H.L.) 
 Drew V. Drew (H.L.) 
 Northampton Gas- 
 
 Light Co. V. Parnell 
 
 (C. P.) 
 Braunslein v. Ins. 
 
 Co. 
 Russell V. Pellegrini 
 
 (O.B.) 
 Wickham v. Hardy 
 
 (Excli.Ch.) 
 Tredwen v. Hdman 
 
 (Exch.) 
 Seligmann v. Le Bou- 
 
 tiUter (C.P.) 
 Caledonian Railway 
 
 Co. V. Greenock &• 
 
 Wemyss Bay (H.L.) 
 Ripley v. Gt. North- 
 ern Railway Co. 
 
 (Rolls'. Ourt) 
 ^emner v. Elder 
 
 (H.L.) 
 London Tramways 
 
 Co.v.BaaeyiQM.V>.) 
 Moffatt V. Cornelius 
 
 (Q.B.D.) 
 Piercy v. Young (Ch. 
 
 Div.) 
 Collins V. Locke 
 
 (H.L.) 
 Spackman v. Plum- 
 stead Bd. 0/ Works 
 
 (H.L.) 
 Viney v. Bignold 
 
 (Q.B.) 
 
COMMERCIAL ARBITRATION 
 
 Finally 
 
 Herschell- Watson-Coleridge 
 
 (1892) Caledonian Ins. Co. t. Gilmour (H.L/) 
 
 (1892) Trainer v. Phoenix Fire Ass. Co. (Q.B.) 
 
 (1892) Scott V. Mercantile Ins. Co. (C.A.) 
 
 (1894) Hamlyn v. Talisker Distillery (H.L.) 
 
 (igg;) Renshaw t. Queen Anne Mansions Co. (Q.B.) 
 
 Later Cases 
 
 (1901) Belcher v. Roedean School Site and Buildings^ Lid. 
 
 (1902) Spurrier v. La Cloche (H. of L.) 
 
 (1903) Austrian-Lloyd Steamship Co. v. Gresham Life Ass. Soc. (E.B.) 
 (19071 Gaw V. British Law Fire Ins. Co. (Irish C. of A.) 
 
 (1914) The Cap Blanco (Admiralty) 
 (1914) Cameron v. Cuddy (H.L.) 
 
 posts. Horton v. Sayer and MiUs v. Bayley were another. 
 In 1872 the New York Court of Appeals had the question of 
 revocability before it in Pres't, etc., D. & H. Canal Co. v. 
 Pa. Coal Co., in 50 N. Y. 250. Judge Allen, writing for the 
 Court of Appeals, accepts the Tredwen v. Holman-Braun- 
 stein V. Ins. Co. interpretation — but the case itself requires 
 him to go no farther than the earlier Coleridge-Bramiwell 
 interpretation of Scott v. Avery. His observations, how- 
 ever, are of the utmost importance in indicating the re- 
 luctance with which the New York Courts accepted the old 
 rule. Judge Allen writes with vigor: 
 
 "But when the parties stand upon an equal footing, 
 and intelligently and deliberately, in making their ex- 
 ecutory contracts, provide for an amicable adjustment 
 of any difference that may arise, either by arbitration or 
 otherwise, it is not easy to assign at this day any good 
 reason why the contract should not stand, and the parties 
 made to abide by it, and the judgment of the tribunal 
 of their choice. Were the question res nova, I apprehend 
 that a party would not now be permitted, in the absence of 
 fraud or some peculiar circumstances entitling him to relief, 
 to repudiate Ms agreement to submit to arbitration, and 
 seek a remedy at law, when his adversary had not refused to 
 arbitrate, or in any way obstructed or hindered the arbi- 
 tration agreed upon." " 
 
 '50 N. Y. 250, at p. 258. Italics ours. 
 
ENGLISH ERROR IN AMERICAN LAW 2S9 
 
 "Mr. Justice Crowder," says Judge Allen,* "in making 
 response to the question propounded by the lords to the 
 judges, in Scott v. Avery, thus states the question and 
 the answer to it: 'Can a shipowner and an insurer enter 
 into a valid agreement that the shipowner shall pay down 
 a given sum, and that in consideration of such payment 
 the insurer upon the loss of a given ship shall pay to 
 the said owner, not the amount of the loss sustained by 
 her through the perils of the sea, but only such sum 
 of money as shall be settled and ascertained by arbitration. 
 I am not aware of any legal objection to such a contract, 
 whatever may be thought of its prudence. And I think 
 the effect of such a contract is, that no action lies for 
 the breach of it, until the same has been ascertained by 
 arbitration.' The judge," says Judge Allen further, 
 "lays no stress upon the form of the contract, but regards 
 the provision for determining the amount to be paid by 
 arbitration as in legal effect postponing the right of action 
 until after the award is made." 
 
 Judge Allen's examination of the English cases led him 
 to conclude that "It is not necessary that it should be 
 put in the technical form of a 'condition precedent,' and 
 the courts will give effect to the real intention of the 
 parties, as clearly indicated by the agreement."* And 
 in referring to the Braunstein case, he calls attention 
 to the fact that in that case "the policy did not, in terms, 
 declare that the award of arbitrators should te a condition 
 precedent to the bringing of am action."^ On the con- 
 trary, as he points out,° the covenant was "to the effect 
 that, in case of difference of opinion as to the amount 
 of compensation, the qv^stion should he referred to arli- 
 tration, and the awwrd made should be taken as a full 
 
 'Ibid., p. 268. 
 
 * Ibid., citing American note to Braunstein v. Accidental Death 
 Ins. Co., 101 English Com. Law E., 783. 
 'Ibid., p. 269. Italics ours. 
 
230 COMMERCIAL ARBITRATION 
 
 settlement of the question." Our highest court in this 
 day (1872) is inclined to treat the revocation of an ar- 
 hitration agreement as a failure "to give effect to con- 
 tracts, when lawful in themselves, according to their terms 
 and the intent of the parties.'" Thus it accepts the doe- 
 trine laid down by Lord Eldon in Waters v. Taylor and 
 Harcourt v. Bamsbottom. "Any departure from this prin- 
 ciple,'"' says Judge Allen, "is an anomaly in the law," 
 not to be extended. Nevertheless, says he, "the rule that 
 a general covenant to submit any differences that may 
 arise in the performance of a contract, or under an 
 executory agreement, is a nullity," note the word "is too 
 well established to be now questioned." ^ At this point 
 Judge Allen missed the right road. The fact is that the 
 doctrine was being questioned in England and a settle- 
 ment of the controversy was not had until twenty yeai^ 
 after Judge Allen wrote. Nevertheless, the case before 
 him, as Judge Allen himself says, did not require de- 
 termination of this specific controversy — "the decision of 
 the appeal of the present defendant does not make it nec- 
 essary to inquire into the reasons of the rule, or ques- 
 tion its existence." " 
 
 So, in New York, our highest court had traveled this 
 far by 1872 : 
 
 1. The annulment of covenants to arbitrate is an anom- 
 aly in the law. 
 
 2. The soundness of the rule is doubtful. 
 
 3. If it were not for its binding force as a precedent, 
 it would not be followed. 
 
 4. It need not be questioned at this time. The court 
 accepts, for the purpose of the case, the Coleridge-Bram- 
 well interpretation of Scott v. Avery. 
 
 '50 N. Y. 250, at pp. 258-259. Italics ours. 
 ^ Ibid., p. 259. Italics ours. 
 'Ibid., p. 258. Italics ours. 
 'Ibid. Italics ours. 
 
ENGLISH ERROR IN AMERICAN LAW 231 
 
 Judge Allen refers at p. 268 to BroMnstein v. Accidental 
 Death Ins. Co., as reported in 101 Eng. Com. Law Re- 
 ports (with American notes). The "American notes" are 
 by Henry "Wharton of Philadelphia and appeared in 1863. 
 It will pay us to consider them for a moment. The editor 
 says (p. 799) : 
 
 "In the earlier decisions it was laid down as an ab- 
 solute and unqualified rule of law, that a mere agree- 
 ment to refer disputes arising out of a particular con- 
 tract to arbitration, was no bar to an action; for it was 
 said such an agreement was contrary to public policy, 
 as tending to oust the jurisdiction of the court" (citing 
 early eases). 
 
 "It is not necessary," he says, "to attribute, as has been 
 sometimes done, to the judges by whom this rule was 
 first established, any selfish motive, such as a love of 
 power, or a fear of losing the emoluments of office. The 
 rule had within certain limits a sound basis." Here we 
 have an American explanation: "It is not wise or right 
 in general to sanction contracts by which men through 
 ignorance, folly, or pressure, deprive themselves of the 
 protection which the law affords them. On the whole it 
 is better to guarantee that protection to all, though some 
 at times may not understand its importance. 
 
 "Still," he says,."m modem times, the expense and 
 loss of time always incident to litigation, and in certain 
 classes of cases the known prejudices of juries, constamtly 
 induce persons to propose and assent to agreements for 
 reference of possible disputes to orMtration." 
 
 But if this be so, how are the generally weak or foolish 
 to be protected? may be asked. "This, when the parties 
 stand on equal terms, is reasonable in itself, and leaves 
 it still open to the courts to decide whether any particular 
 case falls within the agreement; to compel or dispense 
 with a reference when it is wrongfully refused or evaded 
 by one of the parties; and to enforce the ammrd when 
 
232 COMMERCIAL ARBITRATION 
 
 properly made." "And," says he further (this was writ- 
 ten in 1863, long prior to the House of Lords' decisions in 
 Hamlyn v. Talisker Distillery and the later cases) "when 
 the parties do not stand on equal terms, the aid of a Court 
 of Equity can always he had, as in any other case of con- 
 tract." 
 
 Accordingly, Wharton finds "the tendency of the more 
 recent decisions" to he "to give effect to such agreements. 
 Tinder the qualifications just suggested; at least where 
 the reference is expressly made a condition precedent to 
 the right to sue." "Perhaps, indeed," says he, "when the 
 modem theory on the subject comes to he fvlly worked 
 out, it wUl not he considered necessary that the agreement 
 to refer should he put in the strict techvdcal form of a 'con- 
 dition precedent,' hut the real intention of the parties wiU 
 be rather considered." 
 
 The "modem theory" has now been worked out in Eng- 
 land. In that country today it is assumed that when 
 parties agree to arbitrate, their intention is not to sue 
 until the arbitration has been had. 
 
 In his argument to sustain the arbitration in D & H. 
 Canal Co. v. Pa. Coal Co., Mr. Southmayd ^^ referred to 
 "the old rule of law which we found in the English books, 
 and which we have all learned as law students — ^that an 
 agreement, for submission to arbitration, of a cause of 
 action cognizable in the Courts of law or equity, is not 
 pleadable in bar to a suit brought upon such cause of ac- 
 tion." Though this doctrine "was established in the Eng- 
 lish courts a long time ago" and "was at a time when 
 those courts were struggling for the enlargement of their 
 jurisdiction and when they were all greatly disinclined 
 to assent to anything which would have the effect to 
 abridge either the particular jurisdiction of themselves 
 or the jurisdiction of all the courts" — this learned lawyer 
 was content to accept as binding law the proposition "that 
 
 "P. 2 of his printed argument. 
 
ENGLISH ERROR IN AMERICAN LAW 233 
 
 the attempt of parties to substitute a tribunal constituted 
 by themselves, for the decision of a question which, by 
 the law of the land, is cognizable by the courts of the 
 country, is .against public policy." 
 
 Yet he could not harmonize this doctrine with the rule 
 that a counter-suit could be maiatained for breach of the 
 agreement to arbitrate, nor could he understand why, since 
 "the object of an agreement to arbitrate is to avoid liti- 
 gation," you should give such a construction to the agree- 
 ment as would really give the party "the luxury of having 
 two law-suits in lieu of one." Said he, "It is difficult 
 to perceive that you make any approach to carrying out 
 the purpose for which the contract was made." 
 
 And he found, also, that this original doctrine had 
 come to be doubted by the English judges— even Lord 
 Kenyon having come "seriously to doubt whether it really 
 rested upon any very solid ground of principle, and to 
 doubt whether the original establishment of the rule was 
 sound or wise." 
 
 "Nevertheless, they said the rule was established firmly 
 in the law, and whatever might be the opinion of the 
 courts in regard to its wisdom or soundness, it must he 
 accepted as a part of the established law of the land." 
 And so he -concedes the whole point. 
 
 This, Mr. Southma5^d believed, was Lord Kenyon 's con- 
 clusion in Thompson v. Charnock and he dug no farther. 
 He did not discuss Dimsdale v. Boiertson, where, in 1840, 
 Lord Sugden pointed out that Lord Kenyon 's views in 
 Halfhide v. Fenmng were still the law of England. Like 
 Bramwell in England, Southmayd, in New York, fastens 
 the limited and narrow construction of the law upon our 
 Common Law. His whole argument is confined to the 
 "condition precedent" theory and does not venture into 
 original sources. He is obliged to admit that the doc- 
 trine was in England "now upheld purely on the principle 
 of sic^re decisis"; and he asserts that "if at amy time 
 
234 COMMERCIAL ARBITRATION 
 
 within the last fifty years the qitestion would hwve teen 
 presented as a new one to the courts, no such doctrine 
 would have teen established." Like Bramwell, however, 
 he could win his case by conceding the unsound rule and 
 arguing for its qualification: This he succeeds in doing.^^ 
 
 If, however, Mr. Southmayd had made a careful histori- 
 cal analysis of the English cases, is there any doubt that 
 he could have induced Judge Allen to reject Thompson v. 
 CharnocTc as stare decisis? 
 
 Three years later (1875) Chief Justice Andrews writes 
 (Pudickar v. Guardian Mutual Life Ins. Co.) :^^ 
 
 "It is the general doctrine pervading our jurisprudence 
 on the subject, that the decision of an arbitrator in a 
 matter within his jurisdiction is final and conclusive be- 
 tween the parties. The jealousy with which, at one time, 
 courts regarded the withdrawal of controversies from 
 their jurisdiction by the agreement of parties, has yielded 
 to a more sensible view, and arbitrations are now en- 
 couraged as an easy, expeditious and inexpensive method 
 of settling disputes, and as tending to prevent litiga- 
 tion." 
 
 The agency theory underlying Coke's dictum in Vynior's 
 Case is nowhere more clearly disposed of than by Judge 
 Andrews' definition of an arbitrator. He, said Judge An- 
 drews, is "a judge appointed by the parties; he is by their 
 consent invested with judicial functions in the particular 
 case; he is to determine the right as between the parties 
 in respect to the matter submitted, and all questions of 
 
 "Francis Lynde Stetson, ex-president of The Association of the 
 Bar of the City of New York and one of the leaders of the New 
 York Bar, discussing the report of the Committee on Prevention of 
 Unnecessary Litigation at the 1917 meeting of the New York State 
 Bar Association, said: "... the decision originally in this State 
 and in the Delaware # Hudson Case and the Pennsylvania Coal Com- 
 pany Case was a dreadful blow to peace and contrary to the spirit 
 of the Constitution then prevailing, the Constitution of 1846, which 
 provided specially for tribunals of conciliation." (Beports, New 
 York State Bar Association, Vol. XL, 1917, p. 404.) 
 
 « 62 N. Y. 392, at p. 399. Italics ours. 
 
ENGLISH ERROR IN AMERICAN LAW 235 
 
 fact or law upon which the right depends are, under a 
 general submission, deemed to be referred to him for de- 
 cision. ... If courts should assume to rejudge the de- 
 cision of arbitrators upon the merits, the value of this 
 method of settling controversies would be destroyed, and 
 an award instead of being a final determination of a con- 
 troversy would become but one of the steps in its prog- 
 ress. ' ' ^^ 
 
 In 1877 the New Tork Court of Appeals said: "We 
 are not at liberty to be hypercritical for the purpose of 
 overturning the decisions of these domestic tribunals, and 
 compelling a resort to the courts of justice. It would be 
 better for the people if more of their controversies should 
 be settled in the same way, and justice would be quite as 
 likely to be done as when administered by the more formal 
 methods of litigation in the courts. A liberal interpreta- 
 tion should be given to the submission, and the award 
 made, to uphold the latter when it is not attacked for cor- 
 ruption or misconduct of the arbitrator. ' ' " 
 
 Forty years later than the D. & H. Case (Welch v. 
 Probst)^' the Appellate Division of the Fourth Depart- 
 ment upholds the practice of arbitration "in the light of 
 the custom which prevailed in New York City." Where 
 there was but a most informal interchange of letters it 
 adopted the course of the trade for creating arbitration, 
 saying: 
 
 "It is the policy of the courts to encourage and uphold 
 arbitrations, as they are an inexpensive, simple and ex- 
 peditious method of adjusting controversies, and tend to 
 prevent litigation. " ^° 
 
 In the D. & M. Canal Co. v. Pennsylvania Coal Co. 
 Case, Judge Allen cites three New York cases. These we 
 
 " Ihid., pp. 399, 400. 
 
 " Curtis V. GoTcey, 68 N. Y. 300, at p. 305. 
 
 "151 App. Div. 147 (1912). 
 
 "Itid., p. 151. Malies ours. 
 
236 COMMERCIAL ARBITRATION 
 
 shall now briefly consider. The first is Wood v. Lafayette " 
 in 1871 (Judge Grover writing the opinion). Here the 
 Court held flatly that an agreement to submit an exist- 
 ing controversy to arbitration was revocable. It cites 
 no authority for its conclusion, merely saying: By an 
 agreement the matter of a boundary line "the parties 
 agreed to submit to Mann, and to abide by his decision. 
 This was the only matter with which he had anything 
 to do; everything else was settled by the agreement. In 
 determining where the line was, Mann was to act as ar- 
 bitrator ; his power so to act was revocable hy either party, 
 as is the case in every submission to arbitrators, if exer- 
 cised at the proper time." Even the fact that it was 
 part of an agreement to settle an existing suit made no 
 difference. "The fact that there was a consideration for 
 the agreement, in the settlement of the existing suit, makes 
 no difference in this respect. Every agreement to arbi- 
 trate must, to he valid, be based upon a consideration. 
 . . . The agreement to submit the question to Mann was 
 the only part revocable by either party ; his power having 
 been revoked, his subsequent determination was not bind- 
 ing upon the parties." It is difficult to follow this reason- 
 ing. The parties are held to their entire contract save 
 the one feature which is to keep them from further liti- 
 gation. Though this feature was in their minds an es- 
 sential element in the making of the contract, either one 
 may keep the rest of the contract and cancel the portion 
 providing for arbitration however unjust a result might 
 thus be produced. 
 
 The second New York case cited by Judge Allen is 
 Smith V. Compton,^^ in 1855, decided by the Supreme 
 Court of Cayuga County (T. R. Strong, J.) holding that 
 "An agreement of submission of matters in difference 
 to arbitrators, followed by the arbitrators entering upon 
 
 " Wood V. Lafayette, 46 N. Y. 484, at p. 489-490. Italics ours. 
 "20 Barb. 262, at p. 267. 
 
ENGLISH ERROR IN AMERICAN LAW 237 
 
 their duties — ^the arbitration being still pending and un- 
 determined — constitutes no defense, or legal obstacle, in 
 abatement or in bar, to an action for the same matters, 
 commenced after the making of the agreement. Such an 
 agreement is a mere authority, revocable by either party, 
 at any time before the case is finally submitted to the 
 arbitrators for decision, subject only to liability for dam- 
 ages." Counsel for neither of the parties referred — so far 
 as the report shows — ^to any of the English cases, and the 
 Court relied entirely on Story's Eq. Juris. §1457, and 
 "cases there cited," saying: "The principle is well set- 
 tled, that a specific performance of an agreement to refer 
 a subject of controversy, will not be enforced by the 
 courts, on the ground that it is against public policy 
 thereby to exclude parties from a resort to the proper 
 judicial tribunals." 
 
 The third ease cited by Judge Allen is Haggart v. Mor- 
 gan ^^ (1851), wherein the Court of Appeals (Gardiner, 
 J.) held that "the agreement to arbitrate, only entitled 
 the party to damages, but was no bar to an action," cit- 
 ing for this Mitchell v. Harris,'" whose lack of binding 
 force as an English precedent has been clearly demon- 
 strated,^"- and 2 Story's Eq. Jur. §§ 1457-8, which we 
 shall consider later.^^ In this case the arbitration clause 
 under consideration was part of a building contract and 
 was limited to "any dispute which should arise respecting 
 the work or finish of the building." The case discloses 
 a complete absence of research or study of the English 
 precedents. We turn now to more recent eases. 
 
 In Benson v. Eastern Building amd Loan Association "' 
 decided in 1903, there was a provision in certain building 
 loan certificates that "any action brought against this 
 
 "5 N. Y. (1 Seia.) 422. 
 
 '"2 Ves. Jr. 129, Sumner's Ed. and note. 
 
 " See ante, pp. 153-159. 
 
 " See post, pp. 250-252. 
 
 " 174 N. Y. 83, at p. 86, 87. Italics ours. 
 
238 COMMERCIAL ARBITRATION 
 
 association (defendant) shall be commenced within six 
 months after filing proofs and in the county of Onon- 
 daga and state of New York. " The Court of Appeals holds 
 this valid and says that "If in violation of the stipula- 
 tion the plaintiff brought his action in another county, 
 the, defendant's remedy was to move to have the place of 
 trial changed to that in which the plaintiff had agreed 
 it should be brought. . . . The erroneous practice neither 
 affects the jurisdiction of the court nor defeats the cause 
 of action." But the Court sees clearly the logical effect 
 of the argument that this provision in the contract at- 
 tached a condition to the contract. Discussing the argu- 
 ment that "the parties have agreed that the shareholder 
 should have no cause of action against the defendant un- 
 less his action was brought in the specified county in the 
 state of New York, and that, therefore, when he brings 
 a suit elsewhere, his cause of action is not established," 
 "We think," says Judge CuUeri, "this argument 'proves 
 too much. It is difficult to see why it would not uphold 
 cm agreement that all claims against the parties should 
 he determined iy arbitrators and not hy the courts. It 
 might be said with as much force in such a case as in 
 the one now before us that the cause of action could, 
 under the agreement, accrue only on the decision of the 
 arbitrators." Yes, this is thoroughly sound reasoning, as 
 the English judges fimally decided. "Yet," says Judge 
 CuUen, "nothing is better settled than that agreements of 
 the character mentioned are void." And for this he 
 cites the D. <& H. Canal Company Case, which, as we have 
 seen, is no authority at all for the proposition. 
 
 Thus is unsound decision rested upon unsound decision 
 and erroneous doctrine piled upon erroneous doctrine. 
 
 In April, 1895, the case of Sanford v. Commercial 
 Travelers' Assn."* came before the Appellate Division of 
 the Fourth Department. Upon appeal the Court of Appeals 
 
 "86 Hun 380. 
 
ENGLISH ERROR IN AMERICAN LAW 
 
 followed the court below ^° in holding invalid a clause which 
 provided that "the issues in etny action brought against it 
 (the defendant) under this certificate, shall, on the de- 
 mand of this association or its attorney, be referred for 
 trial to a referee to be appointed by the court in which 
 such action is brought." Here, obviously, was no ouster 
 of jurisdiction of the courts, merely a waiver of trial 
 ty jury and consent in advance to a referee to be named 
 by the court. Yet this fear of "ouster" was so terrifying 
 that even a clause such as this one was held to be in- 
 valid, the Court of Appeals relying upon the opinion of 
 the Appellate Division below. When, however, we turn to 
 the opinion of the Court below, we find (as we might 
 expect to find), that reliance is placed upon the English 
 cases of Kill v. HolUster, Mitchell v. Harris, Thompson 
 V. Charnock, Street v. Bigiy, Scott v. Avery, Eorton v. 
 Sayer, Boper v. Lendon and the whole line of now dis- 
 credited English precedents. The really authoritative and 
 controlling line of Halfhide v. Fenning, Waters v. Tay- 
 lor, Harcourt v. Bamshoitom, Dimsdale v. Bobertson, Drew 
 V. Drew and the later cases (1872-1894, especially Tradnor 
 V. Phoenix Fire Ins. Co., Scott v. Mercantile Ins. Co. and 
 3dmlyn v. TaMsTcer Distillery) are not even referred to. 
 American cases in other states and Federal cases resting 
 upon the obsolete English authorities are piled upon each 
 other till they make a fastness seemingly too formidable 
 to attack. 
 
 Greas(m v. Eeteltas,^" in the Court of Appeals in 1858 
 (Selden, J.), rests upon Mitchell v. Harris, 2 Ves. Jr. 129, 
 notes 3, 4, Sumn. ed. "So scrupulously," says the Court, 
 "is this right of revocation guarded, that it is not lost, 
 although the submission has been actually made a rule 
 of court." Waters v. Taylor, Harcourt v. Bamsbottom, 
 
 » 147 N. Y. 326. 
 " 17 N. T. 491. 
 
240 COMMERCIAL ARBITRATION 
 
 Dimsdale v. Robertson — all later and more authoritative 
 — are not even cited by the Court. 
 
 Thus in the New York, as in the earlier English law, 
 specific performance of an agreement to arbitrate is not 
 allowed. The courts oust themselves of jurisdiction to 
 enforce the contract of the parties. 
 
 The "right of revocation" is "the policy of the law" 
 says Judge Selden, and is founded "in the obvious im- 
 portance of securing fairness and impartiality in every 
 judicial tribunal. Arbitrators being selected, not by law, 
 but by the parties themselves, there is danger of some 
 secret interest, prejudice or bias in favor of the party 
 making the selection; and hence the opposite party is 
 allowed, to the latest moment, to make inquiries on the 
 subject." Yet our Code permits parties to select their 
 own referees and even their own arbitrators. 
 
 Perhaps the most modern statement of what we have 
 here treated as error is the one in Sanford v. Accident 
 Association" (1895), in which Judge Gray holds invalid 
 an agreement in a policy that in case suit be brought it 
 shall "be referred for trial to a referee to be appointed 
 by the court." He says: "We may safely base the rea- 
 son for the application of this rule upon the proposition 
 that public policy is opposed to the enforcement of an 
 agreement, which supersedes the law and deprives the in- 
 dividual of the protection which it was designed and framed 
 to afford" and this "protection" is "the constitutional 
 provision which seciures to a party the right of trial 
 hy jury." 
 
 The right of trial by jury is one that can be waived. 
 The right to bring suit at all can be waived. The parties 
 may waive it by agreement to forbear from bringing suit, 
 or, after suit, by stipulating in open court to discontinue. 
 They may even consent to the entry of judgment. By 
 so doing, of course, they set aside and supersede the opera- 
 
 "147 N. T. 326, at p. 328, 329. ItaUcs ours. 
 
ENGLISH ERROR IN AMERICAN LAW Ml 
 
 tion of the law and "the protection which it was designed 
 and framed to afford." Yet it is not against public pol- 
 icy.^* In the case of The Oranmore,'^ the parties stipulated 
 that "Any questions arising under this contract or the 
 bill of lading against the steamer or her owners shall 
 be determined by English law in England." The Court 
 held that this was valid and that "the court should give 
 effect to this clause of the agreement. It leaves the in- 
 tention of the parties beyond doubt of any kind, and that 
 intention was to give to the provisions of the bill of lading 
 such efficacy as the English courts would give to them." 
 
 "See also McAllister v. Smith, 17 HI. 328, 334; Dike v. Erie 
 Eailway Co., 45 N. Y. 113, 116; Grand v. Lvuingston, 4 App. Div. 589, 
 593; Union iNational Bank v. Chapman, 169 N. T. 53b, J45; Le 
 Breton v. Miles, 8 Paige 261. 
 
 " 24 Fed. Eep. 922. 
 
CHAPTER XVIII 
 
 THE DEVELOPMENT IN THE FEDERAL (XT. S.) COURTS 
 
 In the introduction ^ we referred to the decision by 
 Judge Hough in United States Asphalt Eefining Co. v. 
 Trinidad Lake Petroleum Co.^ as the incident which set 
 in motion the protests of the London Court of Arbitration 
 to the New York Chamber of Commerce. "We are now 
 ready to study Judge Hough's opinion more in detail. 
 First of all, the learned judge clearly indicates his lack 
 of sympathy with the rule. For "refusing to give effect 
 to the agreements of men of mature age, and presumably 
 sound judgment," says he, "there has long been a great 
 variety of available reasons." These agreements have, 
 he believes, "the intended effect ... to prevent proceed- 
 ings in any and all courts and substitute therefor the de- 
 cision of arbitrators." The plaintiff's action in refusing 
 to carry out the provision for arbitration ° he aptly de- 
 scribes as "this libelant's contract breaking" and this 
 leads him "to consider at some length the nature and 
 history of the reasons adduced to justify the sort of con- 
 duct, by no means new, but remarkably well illustrated" 
 in the case before him. 
 
 •Pp. ix, X. 
 
 '222 Fed. Rep. 1006. 
 
 •"19. Any dispute arising under this charter shall be settled in 
 London by arbitration, the owners and charterers each appointing an 
 arbitrator, and the two so chosen, if they do not agree, shall appoint 
 an umpire, the decision of whom shall be final. Should either party 
 refuse or neglect to appoint an arbitrator within 21 days of being 
 required to do so by the other party, the arbitrator appointed may 
 make a final decision alone, and this decision shall be binding upon 
 both parties. For the purpose of enforcing any award, this agree- 
 ment shall be made a rule of court." 
 
 242 
 
DEVELOPMENT IN THE FEDERAL COURTS 243" 
 
 First of all, lie quotes from Lord Campbell in Scott 
 V. Avery*' — "in the contests of the courts of ancient times 
 for extension of jurisdiction — all of them heing opposed 
 to anything that would altogether deprive every one of 
 them of jurisdiction" and says that it "has never been 
 denied that the hostility of English-speaking courts to ar- 
 bitration contracts probably originated," as Lord Camp- 
 bell said it did. "A more unworthy genesis," says Judge 
 Hough, "cannot be imagined." 
 
 Since Lord Kenyon's time {Thompson v. Charnock"), 
 ' ' it has been customary to stand rather upon the antiquity 
 of the rule than upon its excellence or reason" and there 
 is "little difference," he believes, "between Lord Ken- 
 yon's remark" in this regard and the words of Judge Car- 
 dozo in the Meacham case.' "Nevertheless the legal mind 
 must assign some reason in order to decide anything with 
 spiritual quiet" — note the language — ^and so he proceeds 
 to analyze in order the five reasons (a) the contract is 
 in its nature revocable; (b) such contracts are agamst 
 public policy; (c) the covenamt to refer is hut collateral 
 to the main contract, and may be disregarded, leamng 
 the contract keeper to his action for damages for breach 
 of stock collateral covenant; (d) any contract tending to 
 wholly oust the courts of jurisdiction violates the spirit 
 of the laws creating the courts, in that it is not com- 
 petent for private persons either to increase or diminish 
 the statutory juridical power; (e) arbitration may be a 
 condition precedent to suit, and as such valid, if it does 
 not prevent legal action, or seek to determine out of court 
 the general question of liability. 
 
 The doctrine of revocability, the judge finds, as we 
 have found, rests upon Vynior's Case "and is now some- 
 what old-fashioned, although it appears," with due cita- 
 
 *5 H. L. C. 811. 
 
 "8 T. E. 139. 
 
 * Meacham v. Jamestown, etc., S. B. Co., 211 N. Y. 346, at p. 354. 
 
244 COMMERCIAL ARBITRATION 
 
 tions of authorities, in two modern cases to which the 
 judge refers J "The Public Policy Doctrine," the learned 
 judge finds, as we have found, has no substantial basis 
 in reason; "of late years the higher courts have been 
 somewhat chary of the phrase 'public policy,' " (and he 
 illustrates from Insurance Co. v. Morse,^ Doyle v. Conti- 
 nental Insurance Co.," and Perkins v. United States, etc., 
 Co.) ^'' "But neither the court (the U. S. Supreme Court) 
 nor the commentator (Story) pointed out any other meth- 
 od by which an arbitration agreement could be against the 
 policy of the law, unless it were by seeking to divest the 
 'ordinary jurisdiction of the common tribunals of jus- 
 tice.' " This divesting of jurisdiction we have considered 
 so fully in other chapters that we need not here repeat 
 the demonstration of its unsoundness. But, "Having built 
 up the doctrine that any contract which involves an 'ouster 
 of jurisdiction' is invalid, the Supreme Court of the United 
 States," says Judge Hough, "has been able of late years 
 to give decision without ever going behind that state- 
 ment." As in Insurance Co. v. Morse, where it is said: 
 "Agreements in advance to oust the courts of the juris- 
 diction conferred by law are illegal and void." But even 
 Judge Hough fails to go back of the Federal and State 
 decisions to the scene of original sin — he takes for granted, 
 as did Southmayd in the D. & H. Case, that the English au- 
 thorities remain at least precedentially authoritative. Tak- 
 ing the federal authorities as they stand, however, he finds 
 "comment . . . superfluous upon any theory of law (if 
 law be justice) that can come to such conclusions." To 
 support the effort of "the contract breaker who sued 
 when he had promised not to" outrages this judge's sense 
 of equity as it did Lord Eldon's in Waters v. Taylor and 
 
 ^Oregon, etc., Banlc v. American, etc., Co. (C. C), 35 Fed. 22; 
 and Tobey v. County of Bristol, 3 Story 800, Ted. Gas. No. 14,065. 
 •20 Wall. 445, 22 L. Ed. 365. 
 •94 V. S. 535, 24 L. Ed. 148. 
 " (C. C.) 16 Fed. 513. 
 
DEVELOPMENT IN THE FEDERAL COURTS 245 
 
 Harcourt v. Eamsbottom, though, curiously enough, these 
 decisions (like many others which we have reviewed in 
 preceding pages) do not seem to have been brought to the 
 attention of this modern equity judge. In fact, the only 
 English cases to which Judge Hough refers are Thompson 
 V. CharTwck (false precedent), Damson v. Fitzgerald (false 
 precedent), and the modern cases of Hamlyn v. TaUsker 
 Distillery Co., Manchester Ship Canal Co. v. Pearson & 
 8on,^^ and Austrian-Lloyd Co. v. Gresham, eta., Society." 
 Due to this absence of complete historical analysis of the 
 English cases, Judge Hough falls into the same error as 
 does Mr. Rosenbaum,^^ in believing that it is the English 
 Arbitration Act of Parliament which "has compelled the 
 courts of that country to abandon the doctrine that it 
 is wrong or wicked to agree to stay away from the courts 
 when disputes arise." Thus he concludes that "It is 
 highly characteristic of lawyers that, when thus coerced iy 
 the Legislature, the wisdom of previous decisions hegins 
 to be doubted." He quotes from Lord Watson in the 
 Talisker Distillery case: "The rule that a reference to 
 arbitrators not named cannot be enforced does not appear 
 to me to rest on any essential considerations of public 
 policy. Even if an opposite inference were deducible 
 from the authorities by which it was established, the rule 
 has been so largely trenched upon by the legislation of 
 the last 50 years . . . that I should hesitate to affirm that 
 the policy upon which it was originally based could now 
 be regarded as of cardinal importance." And he finds that 
 "Neither the Legislature of New York nor the Congress 
 has seen fit thus to modernize the ideas of the judges of 
 their respective jurisdictions." But if Judge Hough had 
 found, as is the fact, that the early English cases were 
 
 "L. E. [1900] 2 Q. B. 606. 
 "L. B. [1903] 1 K. B. 249. 
 
 ^"Samuel Eosenbauin: "A Eeport of Commercial Arbitration in 
 England." Bulletin XIIj American Judicature Society. 
 
M6 COMMERCIAL ARBITRATION 
 
 not truly authoritative and that it was the English Courts, 
 not the English Parliament, who changed the Common Law 
 of England (though their change of heart, we must ad- 
 mit, was somewhat accelerated by Acts of Parliament) he 
 would surely not have chided Congress or our State legis- 
 latures so severely. For since "the question," as he finds 
 it, "is one of remedy, and not of right," no harm could 
 have come through judicial correction of this judicial er- 
 ror. The judicial error itself is nowhere better stated 
 than by Judge Hough himself: 
 
 "Whatever form," says he, "of statement the rule 
 takes, the foregoing citations show that it always amounts 
 to the same thing, viz.: The courts will scarcely permit 
 any other body of men to even partially perform judicial 
 work, and will never permit the absorption of all the busi- 
 ness growing out of disputes over a contract by any body 
 of arbitrators, unless compelled to such action by statute. 
 Even such cases as Mittenthal v. Mascagni, 183 Mass. 19, 
 66 N. B. 425, 60 L.E.A. 812, 97 Am. St. Rep. 404, show 
 no more than a belated acceptance of the right to con- 
 fine litigation by contract to a particular court, for even 
 that opinion does not recognize the right of mankind to 
 contract themselves out of all courts." 
 
 Finally, the judge is driven to what he regards as the 
 sole question in the case before him: Shall he overrule 
 the United States Supreme Court though he believe it to 
 be clearly in error, or shall he let the United States Su- 
 preme Court reverse itself? He has only to decide, as he 
 sees it, "whether the law as laid down by the Supreme 
 Court of the United States" shall be followed or not. 
 And his answer is this : "It was within the power of that 
 tribunal to make this rule. Inferior courts may fail to 
 find convincing reasons for it; but the rule must be 
 obeyed," and thus, against his will, he is compelled to 
 award judgment to the "contract-breaker." 
 
 This case, decided by Judge Hough in 1915, was an 
 
DEVELOPMENT IN THE FEDERAL COURTS 247 
 
 Admiralty case. Just as the lawyers in that case failed 
 to dig deeply into the sources of the original judicial 
 error, so apparently they failed to bring to Judge Hough's 
 attention the case of Toledo S. S. Co. v. Zemth Transp. Co., 
 also in Admiralty, decided in 1911, by the Federal Cir- 
 cuit Court of Appeals in the Sixth Circuit.^* Here three 
 judges (Warrington, Denison and HoUister) refused to 
 permit the "contract-breaker" to win out. "It is to be 
 gathered from the contract of submission and the subse- 
 quent agreements that the parties intended a iona fide 
 determination of the question of fault and, as incidental 
 thereto, the amount of damages the defeated party should 
 pay. What kind of arbitration would it be, if each party, 
 solemnly in writing pledging himself to its terms, could 
 nevertheless destroy it by revocation after the real ques- 
 tion in controversy were decided against him? If he 
 could do this once, he could do it on resubmission, and, 
 if on resubmission the question were decided the other 
 way, the then defeated party might revoke. The ethical 
 impropriety of the defeated owner's revocation," writes 
 Judge Hollister for the Court, "at such a stage in the 
 proceedings is obvious and will not ie sanctioned hy a 
 court except under the compulsion of rules of law clearly 
 applicable." The Court made a short excursion into the 
 English cases, touching Vynior, Mills v. Bayley and North- 
 ampton Gaslight Co. v. Parnell, quoting from the latter 
 Maule's famous paragraph: 
 
 "The old rule upon which it was held that the power 
 of an arbitrator was revocable was that a power not coup- 
 led with an interest was revocable — revocable by the au- 
 thority which created it. Prom that rule it was inferred — 
 erroneously, as I think — ^that one of the parties to a sub- 
 mission might revoke without the other. It seems to me 
 that was allowing one man to affect the interests of an- 
 other. But it was an inveterate error." 
 
 "184 Fed. Eep. 391. Italics ours. 
 
248 COMMERCIAL ARBITRATION 
 
 It adopts the reasoning in Harcourt v. Bamsbottom, and 
 Pope V. Lord Duncannon,^^ wherein the Court said: "I 
 say that a Plaintiff is not at liberty to ask the aid of a 
 court of equity in respect of an act done. by him against 
 good faith" and as "there is nothing whatever to show 
 that the power which the Plaintiffs had given to the ar- 
 bitrators was revoked upon any just or reasonable grounds, 
 I am bound to conclude that the revocation was a wan- 
 ton and capricious exercise of authority on their 
 parts. ..." 
 
 Since Courts of Admiralty deal "with causes upon con- 
 siderations even more elastic than pertain to the broad 
 jurisdiction of Courts of Chancery," this Federal Court 
 refuses to permit the plaintiff to plead his own "un- 
 ethical conduct" as a basis for relief in Admiralty. 
 
 It is true that the case rests upon several grounds, 
 namely (a) that the submission was not subject to revo- 
 cation; (b) even if it were subject to revocation, it could 
 not be revoked after the mmrd was published (which was 
 the fact in the case under consideration) ; and lastly, (c) 
 that in its nature the agreement under review did not 
 constitute "an arbitration under the strict rules of the 
 Common Law." Nevertheless, Judge Hough might well 
 have adopted the reasoning of Judge Hollister in the 
 Zenith Case and treated it as an authoritative decision in 
 Admiralty, for denying relief to him who had done "an 
 unethical thing." "We are brought," says Judge Hollis- 
 ter, "to this conclusion by a number of considerations, 
 the chief of which is that justice and fair dealing between 
 man and man require it." ^® 
 
 "The appellant invokes the aid of this court to fix the 
 fault of the collision upon the respondent. He sets at 
 naught, as if it never existed, the solemn agreement he 
 made that the question of fault should be decided by ar- 
 
 " 9 Sim. 177, at pp. 179-180. Italics ours. 
 "184 Fed. Eep. 391, at p. 395. 
 
DEVELOPMENT IN THE FEDERAL COURTS 249 
 
 bitration. That question was settled against him by his 
 own tribunal. He would have this court declare the ar- 
 bitration a futility. If it is a futility it is only because 
 he has made it so. He will not, in a court of admiralty, 
 be permitted to take such advantage of his own wrong. "^' 
 
 Nor was Judge Hough's attention called to the unpub- 
 lished decision of his colleague, Judge Ward, in the case 
 of Clark v. Ha/mburg- American Packet Company, granted 
 April 15, 1913. The decision is quite short and is worth , 
 publishing in full: 
 
 "The stipulation in the charter party that all disputes 
 were to be settled by unnamed arbitrators in London was 
 not a provision regulating the remedy incidental to the 
 contract, but was a substantive part of the contract itself. 
 If the charter had been made in New York such a pro- 
 vision would not be valid, Delaware & Hudson Canal Co. 
 V. Penna. Coal Co., 50 N. Y. 250. But the demurrer ad- 
 mits that the charter was made in Germany between a 
 German corporation and a citizen of the State of New 
 York and that the provision as to arbitration is valid by 
 the law of Germany. The principal dispute is whether 
 the defendant should have supplied a la carte dinners, as 
 distinguished from table d'hote dinners. If this was a 
 breach of the contract it was a breach committed on the 
 ship, which is a part of German territory and generally 
 while on the high seas. Arbitration of particular con- 
 troversies is recognized under certain conditions in New 
 York, Code of Civil Proc. Sees. 2365-2386. I think this 
 provision in the contract is a good plea in bar to an ac- 
 tion in the courts of this state, Hamlyn v. Talisker (1894) 
 App. Cas. 202. The demurrer is overruled with costs." 
 
 Turning now to the leading United States Supreme 
 Court case {Insurance Co. v. Morse, 20 Wall. 445), we 
 find (at p. 451) Mr. Justice Hunt saying: 
 
 "There is no doubt of the general principle that parties 
 
 "Ibid., p. 400. 
 
260 COMMERCIAL ARBITRATION 
 
 cannot by contract oust the ordinary courts of their 
 jurisdiction. ' ' 
 
 This quotation is from Scott v. Avery and includes the 
 famous quotation from Thompson v. Charnock (Lord Ken- 
 yon) "that the fact that the parties had agreed that the 
 matter should be settled by arbitration did not oust the 
 jurisdiction of the courts." 
 
 Here, then, is the source of error in the United States 
 Supreme Court: the erroneous interpretation of Scott v. 
 Avery and the treatment of Thompson v. Charnock as au- 
 thoritative — almost the precise error made by the Court 
 of Appeals in 50 N. Y. The decision in Insurcmce Co. v. 
 Morse was rendered in 1874, at a time when the English 
 authorities were still in confusion; but it has been re- 
 peatedly cited and followed without attempt to correct 
 the error. 
 
 Perhaps no author is more frequently quoted in this 
 country than Story for the erroneous doctrine we are 
 considering. Citing Street v. Eigby, Thompson v. Char- 
 nock, Waters v. Taylor and Wellington v. Mackintosh and 
 ignoring all the other English authorities, he said in his 
 Equity Jurisprudence (§670) that "where the stipula- 
 tion, though not against the policy of the law, yet is an 
 effort to divest the ordinary jurisdiction of the common 
 tribunals of justice, such as an agreement, in case of 
 any disputes, to refer the same to arbitrators, Courts of 
 Equity will not, any more than Courts of Law, interfere 
 to enforce that agreement, hut they wiU leave the parties 
 to their own good pleasure in regard to such agreements" 
 — a doctrine so unsound as to shock every modern stu- 
 dent of equity. Why should a court of equity encour- 
 age "contract breakers'"? Because, says Judge Story, 
 "The regular administration of justice might be greatly 
 impeded or interfered with by such stipulations if they 
 were specifically enforced. And at all events courts of 
 justice are presumed to be better capable of adminis- 
 
DEVELOPMENT IN THE FEDERAL COURTS 251 
 
 tering and enforcing the real rights of the parties than 
 any mere private arbitrators, as well from their superior 
 knowledge as their superior means of sifting the contro- 
 versy to the very bottom. " It is true that courts of equity 
 may do more exact justice than arbitrators. But why 
 limit its jurisdiction? Why not let equity revise all busi- 
 ness contracts? It could, no doubt, make more equitable 
 bargains than the parties themselves, and certainly would 
 avoid many of the blunders that are made by business 
 men. 
 
 Again, he puts it (§ 1457) that courts of equity will 
 not enforce the specific performance of an agreement to 
 arbitrate, "deeming it against public policy to exclude 
 from the appropriate judicial tribunals of the State any 
 persons who, in the ordinary course of things, have a right 
 to sue there, ' ' for which he cites Kill v. Hollister, Mitchell 
 V. Harris, and Street v. Bigiy — all, as we have seen, re- 
 versed and unsound precedents. That these were the 
 sources of Judge Story's error appears further from a 
 study of Tobey v. County of Bristol, decided in 1845^' 
 (Mass.), wherein he cites all of these cases as well as 
 Thompson v. Charnock. "No one can be found, as I 
 believe," said he, "and at all events, no case has been cited 
 by counsel, or has fallen within the scope of my researches, 
 in which an agreement to refer a claim to arbitration, 
 has ever been specifically enforced in equity. So far as 
 the authorities go, they are altogether the other way." In 
 this, the great and learned author was in error, as he 
 was in his reasoning. 
 
 Tet he did not regard such agreements as against pub- 
 lic policy. "The argument at the bar misconceived the 
 doctrine of the Court on this head. Courts of equity do 
 not refuse to interfere to compel a party specifically to 
 perform an agreement to refer to arbitration, because 
 they wish to discourage arbitrations, as against public 
 
 "3 story's Reports 800. 
 
252 COMMERCIAL ARBITRATION 
 
 policy. On the contrary, they have and can have no just 
 objection to these domestic forums, and mil enforce, and 
 promptly interfere tq enforce their awards when fairly and 
 lawfuUy made, without hesitation or question." But a 
 few sentences further on he says: "It is certainly the 
 policy of the Common Law, not to compel men to submit 
 their rights and interests to arbitration, or to enforce 
 agreements for such a purpose. Nay, the Common Law 
 goes further, and even if a submission has been made 
 to arbitrators, who are named, by deed or otherwise, with 
 an express stipulation, that the submission shall be irrev- 
 ocable, it still is revocable and countermandable, by either 
 party, before the award is actually made, although not 
 afterwards." "This," says he, "was decided as long ago 
 as in Vynior's Case (8 Co. R. 81, b.). The reason there 
 given, is, that a man cannot, by his act, make such au- 
 thority, power, or warrant, not countermandable, which is 
 by law, and of its own nature, countermandable"; etc., 
 etc. So a great American jurist revives the error of a 
 great English jurist and Story adds to Coke the strength 
 of an illustrious name to a fundamentally unsound doc- 
 trine. We are not surprised to find him citing as ap- 
 proved English precedents not only our old friend, Vyn- 
 ior's Case, but Milne v. Gratrix, Clapham v. Higham, and 
 King v. Joseph. 
 
PART THREE— THE SOUNDER DOCTRINE 
 
 CHAPTER XIX 
 
 THE COUET'S JEALOUST OP ITS OWN JUEISDICTION 
 
 In his study of Commercial Arbitration in England,^ 
 Mr. Bosenbaum says : "In the early days judges, as. well 
 as other court officers, were paid by fees on the volume 
 of business that came to them and being only human they 
 looked with disfavor upon any limitations on their powers. 
 It is easy to appreciate the psychology of the legal max- 
 im: 'The office of a good judge is to extend his juris- 
 diction.' " 
 
 Support for this view, it is true, is to be found in Lord 
 Campbell's remarks in Scott v. Avery, which curiously 
 enough are not to be found in the reports of "House of 
 Lords Cases, "2 but only in 25 L. J. (Bxch.) 308, at p. 
 312 et seq. Evidently the reporter did not care to give 
 additional space to these animadversions. Lord Campbell 
 stated : 
 
 "Was such a contract illegal? It was contended to be 
 illegal on the ground of public policy. "What pretence 
 was there for that argument? The public could not be 
 injured by such a contract. There could be no injury 
 to the public in an insurance company contracting that 
 no action should be brought against it, the costs of which 
 might be ruinous, but that every dispute should be re- 
 ferred to a domestic tribunal which might speedily and 
 
 * Bulletin XII, American Judicature Society, at p. 10. 
 'See 5 H. h. C. 811, at p. 851. 
 
 253 
 
254 COMMERCIAL ARBITRATION 
 
 economically determine the dispute. Public policy seemed 
 to him to require that such a contract should be enforced. 
 If there were any decisions the other way, he should 
 ask their Lordships to reverse them as contrary to prin- 
 ciple. The doctrine had its origin in the interests of the 
 Judges. There was no disguising the fact that, as for- 
 merly, the emoluments of the Judges depended mainly, or 
 almost entirely, upon fees, and as they had no fixed salary 
 there was great competition to get as m,uch as possible of 
 litigation into Westminster Hall, and a great scramble in 
 Westminster Hall for the division of the spoil." And hence 
 the dispute between the different Courts about a latitat, 
 a capias, and a qu^ minus, the latitat bringing business 
 into the Court of Queen's Bench, the capias into the Court 
 of Common Pleas, and the quo minus into the Court of 
 Exchequer. And they had great jealousy of arbitrations 
 whereby "Westminster Hall was robbed of those cases which 
 came not into the King's Bench, nor the Common Pleas, 
 nor the Exchequer. Therefore they said that the Courts 
 ought not to be ousted of their jurisdiction, and that it 
 was contrary to the policy of the law to do so. " * 
 
 It is true that the earlier judges of England were paid 
 by fees upon the volume of business transacted, as well 
 as by salary. While during the period from William I 
 to Henry III, the people could have justice administered 
 in the courts of arbitrary and potent lords (i. e. county 
 courts), "It is not remarkable," says Reeves,^ "that suitors 
 coming to a court under such circumstances should consent 
 to purchase the means of redress by paying a fine. Upon 
 such terms was the curia regis (founded by William the 
 Conqueror) open to all complainants: and the institution 
 
 'Italics ours. 
 
 * This appears in the report of the case in 25 L. J. (Bxch.) at 
 p. 313, but is omitted from the report of Lord Campbell's opinion 
 in 5 H. L. C. 
 
 "Reeves: "History of English Law," Vol. I, p. 87. 
 
JUDICIAL JEALOUSY 255 
 
 of suits was eagerly encouraged by the officers of that 
 court.'" 
 
 "In the Great EoU of 31 Henry I, of which a de- 
 scription has been already given, is an entry, from which 
 Madox understands, and Lord Campbell asserts, that Geof- 
 frey (afterwards Bishop of Durham) purchased the office 
 of chancellor for the sum of 3006i. 13s. M."'' "... 
 when it is recollected that money was then at least 
 fifteen times more valuable than it is now,"^ this entry 
 becomes more significant. 
 
 "If, however, the entry in question is to be considered 
 as a proof that a fine of that or of larger amount was 
 imposed by the king on a grant of the office of chancellor, 
 it would demonstrate that its dignity and importance had 
 been greatly increased, and that its emoluments must be 
 estimated at a very considerable standard, to be at all 
 proportionate to the assumed price. What those emolu- 
 ments were cannot now be ascertained: but from the roll 
 referred to, some of the payments and allowances made to 
 the chancellor may be discovered. ... He received fifty 
 marks from a fine imposed on the abbot of Westmin- 
 ster. ...'"> 
 
 Foss tells us further that "One of the first acts of 
 King John after the coronation was, 'at the instance' of 
 his new chancellor Hubert, to issue an ordinance (Rymer's 
 Fcedera, i. 75) regulating the fees of the Chancery on 
 charters, confirmations, and protections, which had been 
 oppressively increased 'more from inclination than rea- 
 son* in the time of Richard. By this document a fee is 
 established for the use of the chancellor of one mark of 
 gold or ten marks of silver on a new charter, and of one 
 mark of silver on a simple confirmation; and for the use 
 
 'See Eeeves: "History of English Law," Vol. I, pp. 286-7, note a, 
 buying of writs (Henry III). 
 
 'Fobs: "Judges of England," Vol. I, p. 82. 
 'Ihid., Vol. I, p. 83. 
 'Jlid., Vol. I, p. 84-85. 
 
256 COMMERCIAL ARBITRATION 
 
 0/ the vice-chancellor, of one mark of silver on the for- 
 mer, and of one bezant on the latter." ^'' Again, "The sale 
 of the Chancery to Walter de Grey in 1205 is proved by 
 the following entry on the Fine Roll: 
 
 " ^Waltems de Gray dot Domino Begi quinque ndllia 
 marcas pro hahenda Ga/ncellaria Domini Regis tota vita 
 Sim et pro habenda inde Carta Domini Begis. . . .''"■<> 
 
 "The fees of the Chancery, even under the new regula- 
 tions just mentioned, must still have been very consid- 
 erable to have warranted the demand of so large a 
 fine."^"- 
 
 "The daily salary of the chancellor, noticed in the 
 preceding reigns, seems to have been discontinued towards 
 the latter end of this (Henry III) ; when an annual sal- 
 ary was attached to the ofiSce. The first chancellor who 
 was paid under this new arrangement was "Walter de Mer- 
 ton, who, in 1261, had a grant of four hundred marks per 
 annum. . . . This allowance was increased in 1265, when 
 Thomas de Cantilupe was chancellor, to five hundred 
 marks; the words of application being still more dis- 
 tinct, 'ad sustentationem suam et clericorum CancellwricE 
 nostrce'. . . . 
 
 "Out of this allowance, therefore," says Foss, "the 
 chancellor had to pay the clerks of the Chancery; but as 
 we do not know their number, nor the amount of their 
 salaries, we cannot calculate what balance remained to 
 the chancellor himself. Whatever it was, it must have 
 been greatly increased by the fees to which he was en- 
 titled. 
 
 "We are enabled, in some measure, to estimate the 
 amount of these fees by the return to which I have al- 
 ready adverted in the time of Richard de Middleton, when 
 John le Fauconer accounted for them to the king. The 
 total receipt for two years was 9131. 16s. The disburse- 
 
 •"Foss: "Judges of England," Vol. II, p. 21. 
 "IZ>td., Vol. II, p. 22. 
 
JUDICIAL JEALOUSY 257 
 
 ments are not fully given, but as those named amount 
 only to the trifling sum of 191. 6s. S^^d,, we may pre- 
 sume that the whole deduction would not exceed the odd 
 sum of 731. 16s. Thus there would be an annual bal- 
 ance of 4.501. for the chancellor, which, with his share 
 of the salary after paying the clerks of the Chancery, and 
 the other advantages arising from the oflSce, would form an 
 aggregate not much less in value than the income now 
 attached to it."^^ 
 
 "Both Hugh Bigot and Philip Basset had had a yearly 
 allowance of one thousand marks for their support as 
 chief justiciaries: but Kobert de Brus . . . had the grant 
 of a salary of one hundred marks only. 
 
 "... the allowance to the other judges never exceed- 
 ing 40Z., and sometimes being limited to 201. per an- 
 num."" 
 
 "It was not uncommon to reward the judges by grants 
 of land. . . ."" 
 
 "Of the salary paid to the barons in this reign we 
 have only a few examples. Soon after Alexander de Swere- 
 ford's appointment, in 18 Henry III, he had forty marks 
 per annum, and it was not increased in 27 Henry III. 
 In 38 Henry III John de Wyville had only twenty 
 marks, but this, perhaps, was as justice of the 
 Jews; and Roger de la Leye and William de ClifEord 
 had 401. a year allowed, in 49 and 55 Henry III, each 
 being at the respective times chancellor of the Excheq- 
 uer."" 
 
 In Edward I's reign (1272-1307) "The robes of the 
 judges were still supplied by the crown, but their sal- 
 aries seem to have been reduced in this reign. The 100 
 marks, allowed by Henry III to Gilbert de Preston as th« 
 
 "Tbid., Vol. II, pp. 149-150. 
 "Z6»(J., Vol. II, pp. 155-156. 
 "Ihid., Vol. II, p. 189. 
 "Jbid., Vol. II, p. 199. 
 
258 COMMERCIAL ARBITRATION 
 
 head of the Court of Common Pleas, was continued to 
 him during his life; but his successors, chief justices of 
 either court, were not paid even to that extent of stinted 
 liberality, none of them receiving more than 60 marks or 
 40?. a year. 
 
 "There was some little difference in the payments made 
 to the other judges of the two courts; 50 marks being 
 given to a few, and 40 marks to the remainder. 
 
 "That the barons of the Exchequer held a lower grade 
 than the judges of the two other courts is evident from 
 the amount of their salaries being limited to 201. or 30 
 marks a year, which, to some of them, was increased, 
 towards the end of the reign, to 40 marks. 
 
 "Making every allowance for the difference in the value 
 of money," says Foss, "such stipends must have been 
 wholly inadequate for the support of these officers; and 
 if the deficiency was to be made up by fees in every 
 variety of form, we can scarcely be surprised that the 
 anxiety to increase them should sometimes look like ex- 
 tortion, and that this temptation to bribery should now and 
 then overcome their virtue. ' ' ^" 
 
 "The salary of the chief justices of both benches 
 (King's Bench and Common Pleas), at the beginning of 
 the reign (Edward III), was 401. each, and that of other 
 judges 40 marks each. The latter stipend was all that 
 was then given to the chief baron and his associates in 
 the Exchequer. 
 
 "By Stat. 20 Edward III, chap. 1, after enacting that 
 the judges are to take no reward from any one but the 
 king, it is especially stated that 'for this cause we have in- 
 creased the fees {les feez) of the same our justices, in such 
 manner as it ought reasonably to suffice them." 
 
 "The word 'fee' in the statute evidently meant the sal- 
 ary paid to them hy the king, that leing the ordinary 
 "Foss: "The Judges of England," Vol. Ill, p. 44. 
 
JUDICIAL JEALOUSY 259 
 
 name gwen to it; and had no reference to any larger pay- 
 ments to which the judges were entitled on proceedings 
 hefore them." " 
 
 " 'That the king's servants were miserably underpaid,' 
 says Mr. Hall, 'was admitted even then, and yet it was 
 notorious that in most cases they were able to amass con- 
 siderable fortunes. There could be little doubt where the 
 money came from, and the crown by accepting large fines 
 for the grant of offices which carried with them no legit- 
 imate emoluments worth speaking of, must be regarded 
 as deliberately conniving at the robbery of the subjects.' 
 The absence of Edward between 1286 and 1289 brought 
 matters to a crisis. He was met upon his return with 
 such loud complaints that he appointed a commission of 
 enquiry. The chancellor, Robert Burnell, was at its head, 
 and with him were associated six other commissioners. 
 Writs were sent out to all the sheriffs in England di- 
 recting all who had any complaints against royal offi- 
 cials to come and make them at "Westminster. The result 
 was disgraceful to all branches of the civil service, and 
 especially to the bench. It constitutes, to use Professor 
 Maitland's words, 'our one great judicial scandal.' Of 
 the judges of the court of King's Bench two out of 
 three were removed; of the judges of the court of Com- 
 mon Pleas four out of five. The only two judges in these 
 two courts found to be guiltless were John de Meting- 
 ham and Elias de Beekingham. Five of the itinerant jus- 
 tices, Adam de Stratton, chamberlain of the Exchequer, 
 Henry de Bray, an escheator, Robert de Lyttelbury, clerk 
 or master of the rolls, and a host of minor officials were 
 all found guilty of various crimes. ' ' ^* 
 
 But whether Lord Campbell 's strictures upon his prede- 
 cessors in "Westminster Hall were justified or not, it is 
 
 " lUd., Vol. Ill, p. 357. 
 
 «W. S. Holdsworth, "A History of English Law," Vol. II, pp. 
 239-240. 
 
260 COMMERCIAL ARBITRATION 
 
 certainly not true of modem courts that they strain or 
 over-reach themselves to secure jurisdiction of controversy. 
 If for no other reason, the pressure of modem judicial 
 work, the difficulty of disposing even of the business in 
 hand, strengthens the impulse to decline jurisdiction if 
 legitimate ground therefor can be found. In our day, 
 there is little evidence of jealousy on the part of the 
 courts over the disposition of controversy by private tri- 
 bunals. 
 
 In a "Preliminary Report on Efficiency in the Ad- 
 ministration of Justice," prepared by Charles "W. Eliot, 
 Moorfield Storey, Louis D. Brandeis, Adolph J. Roden- 
 beck and Roscoe Pound for The National Economic League, 
 it is said: 
 
 "The great increase of litigation involved in the expan- 
 sion of commerce and industry and the rapid growth of 
 population has crowded the calendars of our courts to 
 such an extent as to preclude the thoroughness in dis- 
 cussion by counsel and the deliberation in study by the 
 court which is required in a constructive period. . . . 
 The highest type of judicial law-making may not reason- 
 ably be expected under such circumstances." 
 
 In addressing the Chamber of Commerce on June 1, 
 1911, Judge Vernon M. Davis, now a member of the 
 Appellate Division of the Supreme Court of New York 
 for the First Department, said: 
 
 "I also congratulate this Chamber of Commerce upon 
 bringing again into existence a simple and effective plan 
 for settling business disagreements without resort to the 
 courts. In this, as in many other things, the Chamber 
 has maintained its character of being alive to all public 
 needs, and has performed an important public service. 
 Why should business men undertake long and expensive 
 litigation over ordinary differences arising between them? 
 I think it must be a habit, and a bad habit, too. I am 
 hopeful to predict, and I appeal to your experience to 
 
JUDICIAL JEALOUSY 261 
 
 justify that prediction, that a very large number of the 
 disputes that are now carried to the courts will be set- 
 tled speedily and inexpensively under the scheme of ar- 
 bitration which has just been adopted by this Cham- 
 ber. . . . 
 
 "The plan adopted by the Chamber is in no sense in 
 competition with the courts, nor can it be justly regarded 
 as a protest against any real or fancied delay in the ad- 
 ministration of justice in this city. It has arisen out of 
 an obvious condition of business life here, the obvious fact 
 that it is practicable to avoid the delay and expense of a 
 suit in court by a resort to arbitration, and the courts 
 look upon these settlements with great favor, and it is 
 the policy of the law to encourage arbitration, so much 
 so that by special statute the awards of arbitrators may 
 become the judgment of the Supreme Court, judgments of 
 as high a sanction as those obtained in the formal litiga- 
 tion in the courts." 
 
 The tendency of our day is expressed in Jackson v. 
 Barry Railway Company (1893)." Here there was a 
 reference to an arbitrator to determine whether or not 
 work done under a contract was an "extra" or not, and 
 the engineer in charge of the work was named as the 
 arbitrator. Bowen, L. J. (the opinion has been frequently 
 quoted) ^'' says: "It is no part of our duty to approach 
 such curiously-coloured contracts with a desire to upset 
 them or to emancipate the contractor from the burden of 
 a stipulation which, however onerous, it was worth his 
 while to agree to bear. To do so, would be to attempt to 
 dictate to the conmiercial world the conditions under which 
 it should carry on its business." 
 
 The most interesting and erudite question of law may 
 be implicit in a family controversy over a will ; but if the 
 
 "L. B. [1893] 1 (a. 238. 
 
 "See The Justice of the Peace (London), Vol. 75, p. 291 fJuna 
 24, 1911). 
 
262 COMMERCIAL ARBITRATION 
 
 parties are of age and do not fraudulently impose upon 
 each other, they may, by the taking of no more formid- 
 able steps than the interchange of a few dollars and the 
 delivery of mutual releases, dispose of the question for- 
 ever and foreclose the courts from ever passing upon it. 
 Serious questions of constitutional law, involving large 
 matters of public policy, may never reach the courts be- 
 cause the good, practical sense of the parties produces a 
 compromise upon other points. A partnership dispute pre- 
 sents a very neat question of law. With careful manage- 
 ment it can be made to produce litigation sufficient to sup- 
 port comfortably a lawyer and his son for a year and a 
 day. Yet the partners compose their differences, with- 
 draw the suit already begun, or, if not begun, discharge 
 the lawyer from all further responsibility. Does the court 
 intervene to set aside their releases or waivers or settle- 
 ments, or frown upon the transaction because it precludes 
 the court from making some new law or perhaps, in the 
 opinion of the court, even a fairer disposition of the is- 
 sues? The Bench today will commend, not condemn, the 
 member of the Bar who will successfully negotiate such a 
 result and will thank him for saving the Court some labor. 
 The Bar will approve his conduct in thus "preventing un- 
 necessary litigation." Much nonsense is spoken about this 
 business of ' ' ousting the courts of jurisdiction. ' ' The truth 
 is, the phrase has different meaning today than it had in 
 the days of Kill v. Hollister "^ and Thompson v. Gharnock.^^ 
 It means today what Lord Gififord said it meant in Wilson 
 V. Glasgow Tramways Co.^^ "In common language where 
 no attempt is made at logical accuracy it is sometimes said 
 that a contract of submission or arbitration ousts the 
 common law jurisdiction of all Judges. The parties have 
 chosen a private Judge for themselves. But this is not 
 
 "See ante, p. 153. 
 " See ante, p. 166. 
 ■• (June 22, 1878) 5 Session Cases (4th Series) 981, at p. 992. 
 
JUDICIAL JEALOUSY 263 
 
 strictly or logically accurate language, and, what is more 
 important, it is not the sense in which the small debt statute 
 uses the words 'incompetency' and 'defect of jurisdiction.' 
 In strict language a contract of arbitration does not destroy 
 the jurisdiction of the common law Judge. It only in- 
 troduces a new plea into the cause on which the common 
 law Judge must decide by virtue of his inherent juris- 
 diction. If he decides that there has been a valid contract 
 of arbitration he may take several courses. He may dis- 
 miss the auction, leaving the parties to go to their arbiter 
 and come back again, if necessary, for execution or for 
 powers, or he may remit to the arbitrator, or suspend pro- 
 ceedings, or give effect to the award. If the Common Law 
 Judge decides that there has been no valid arbitration, or 
 that the award is bad, or ultra vires campromissi, he will 
 proceed accordingly; but in dealing with arbitrations and 
 awards the Judge is exercising his inherent jurisdiction, 
 and is no way divested thereof, and that whether he sus- 
 tains the arbitration and award or whether he refuses to do 
 so in whole or in part. In short, the plea of arbitration 
 is a plea on the merits of the case which, if well-founded, 
 will, indeed, prevent the Judge from himself entering on 
 the merits or going into proof, but which will not and can- 
 not deprive him of his jurisdiction. If the award is good 
 he will give effect to it either by ordering it to be put in 
 execution or otherwise. If it is bad he will disregard it, 
 repel the plea of arbitration, and proceed with the suit 
 in common form; but in all cases he has jurisdiction to 
 take either course, and if his jurisdiction is not subject to 
 review his decision will be final." Or as Lord Watson 
 said in the House of Lords (May 10, 1894) : "* "The juris- 
 diction of the Court is not wholly ousted by such a con- 
 tract. It deprives the Court of jurisdiction to inquire into 
 and decide the merits of the case, whilst it leaves the Court 
 
 '^Eamlyn # Co. v. Talisker Distillery, L. E. [1894] A. C. 202, at 
 pp. 211-212. 
 
264. COMMERCIAL ARBITRATION 
 
 free to entertain the suit, and to pronounce a decree in 
 conformity with the award of the arbiter. Should the ar- 
 bitration, from any cause, prove abortive, the full juris- 
 diction of the Court will revive, to the effect of enabling it 
 to hear and determine the action upon its merits. When 
 a binding reference is pleaded in limine, the proper course 
 to take is either to refer the question in dispute to the 
 arbiter named or to stay procedure until it has been set- 
 tled by arbitration. The latter course was adopted in 
 Caledonian Bailway Company v. Greenock and Wemyss 
 Bay Bailway Company, where the reference was to arbiters 
 unnamed, but had been confirmed by statute. I cite that 
 case, not as establishing, but as illustrating the rule of pro- 
 cedure, which was in force long before its date." Or as 
 Lord Campbell put it:^' "Where an action is indispen- 
 sable, you cannot oust the Court of its jurisdiction over 
 the subject, because justice cannot be done without the ex- 
 ercise of that jurisdiction. That is all, and there is no 
 doubt about that. This is the foundation of the doctrine 
 that the Courts are not to be ousted of their jurisdiction." 
 "Scott V. Avery, 5 H. L. C. 811, at p. 853. 
 
CHAPTER XX 
 
 THE OEDINAEY UNDERSTANDING OF AN AEBITEATION 
 
 CLAUSE 
 
 The provision in the ordinary contract of merchants 
 that, in the event of dispute or controversy, there shall he 
 submission to arbitration, is not intended to "oust the 
 courts of jurisdiction" but is merely expressive of the in- 
 tent of the parties to keep out of court if they can and to 
 endeavor to compose their differences either through con- 
 ciliation or arbitration. 
 
 In Scott V. Avery, Lord Chancellor Cranworth told us 
 that the intention of the parties was "that the sum to be 
 recovered should be only such a sum as, if not agreed upon 
 in the first instance between the committee and the suffer- 
 ing member, should be decided by arbitration, and that 
 the sum so a-scertained by arbitration, and no other, should 
 be the sum to be recovered." "And," said he, "if that 
 was their meaning, the circumstance that they have not 
 stated that meaning in the clearest terms, or in the mast 
 artistic form,, is a matter utterly unimportant."^ And 
 in Waters v. Taylor, Lord Eldon said: "... the forum 
 they have provided for themselves . . . [it] shows their 
 intention against the interference of amy other jurisdic- 
 tion, until they have tried the effect of the special means, 
 provided by themselves."^ 
 
 Now, whatever may be said of arbitration clauses in 
 general, when two merchants insert in an ordinary busi- 
 
 » 5 H. L. C. 811, at p. 849. Italics ours. 
 '15 Vesey Jr. 10, at p. 17. Italics ours. 
 
 265 
 
266 COMMERCIAL ARBITRATION 
 
 ness contract an arbitration clause, they mean just this 
 and nothing more: 
 
 There shall he no application to the courts "until they 
 have tried the effect of the special means provided by them- 
 
 The failure so to interpret such clauses and the insistence 
 upon some positive formula which justifies the finding of a 
 condition precedent to a law suit, has been due, we believe, 
 to three things, each of which we hope to establish: 
 
 (a) Failure to apply the customs and understandings 
 of merchants. 
 
 (b) Failure to apply the doctrine of Scott v. Avery amd 
 Halfhide v. Fenndng. 
 
 (c) Failure to realize that the dictum in Vynior's Case 
 had long since lost its authority. 
 
 The two last of these three points we believe we have 
 already established. The first we shall now consider. 
 
 (a) The failure to apply the customs and understand- 
 ings of mercha/nts. ' ' 
 
 The study in Part One should make it clear that Lord 
 Eldon's remark is true — ^that business men do not mean to 
 oust the courts of jurisdiction (in any logical sense of these 
 words) but merely mean to establish in their own way the 
 cause of action which the courts may, if need be, enforce. 
 In Lord Coke's day it was not understood differently. 
 Only in the later period and in but one case, Kill v. EolUs- 
 ter,^ did such an idea take root. Later study by the 
 judges made this clearer. But there is much evidence still 
 to submit to indicate beyond further question the under- 
 standing of present day business men and lawyers of the 
 purpose of an "arbitration covenant." 
 
 In the first place, as between business men of foreign 
 countries and business men of our country, at least one of 
 the parties so understands the contract. For today in 
 every country on the face of the earth, save only our own, 
 
 •1 WUb. 129. 
 
THE ORDINARY UNDERSTANDING 26T 
 
 agreements to arbitrate future differences are irrevocable 
 and of full binding force in law. When England found 
 her judges still wavering in applying the full force and 
 effect of Scott v. Avery, she passed the statute which now 
 makes such contracts binding.* Today, as we have seen, 
 except for war conditions, parties in England may agree 
 to leave their disputes to determination by the courts of 
 Hungary or Germany, and this the courts treat as an 
 arbitration. 
 
 Today the London Court of Arbitration may say to the 
 New York Chamber of Commerce: 
 
 "Recourse to arbitration in this Country is very gen- 
 eral, and it is a gratifying tribute to the efficiency with 
 which justice is administered in the London Court of Arbi- 
 tration, that Foreign Merchants readily assent to the in- 
 sertion in their contracts of a clause providing for the 
 reference of differences thereto." 
 
 So that as to mercantile contracts between merchants of 
 other countries and merchants of our own, at least one 
 of the parties understands the covenant to be as irrevocable 
 and as enforceable in the courts as other covenants in the 
 contract. 
 
 Does our own merchant understand it differently? 
 
 In Ewmlyn & Co. v. Talisker DistiUery,^ the Lord Chan- 
 cellor says : ° " The learned Judges in the Court below treat 
 the lex loci solutionis of the main portion of the contract 
 as conclusively determining that all the rights of the par- 
 ties under the contract must be governed by the law of 
 that place. I am unable to agree with them in this con- 
 clusion. "Where a contract is entered into between parties 
 residing in different places, and where different systems of 
 law prevail, it is a question, as it appears to me, in each case, 
 with reference to what law the parties contracted, and ac- 
 
 •52 and 53 V. c. 49. 
 
 •21 Session Cases (4th Series) 204. 
 
 "6 The Eeports 188, at pp. 193-194. 
 
268 COMMERCIAL ARBITRATION 
 
 cording to ■what law it was their intention that their rights, 
 either under the whole or any part of the contract should 
 be determined. In considering what law is to govern, no 
 doubt the lex loci sohitionis is a matter of great importance. 
 The lex loci contractus is also of importance. In the pres- 
 ent case the place of the contract was different from the 
 place of its performance. It is not necessary to enter upon 
 the enquiry, which was a good deal discussed at the Bar, 
 to which of these considerations the greatest weight is to 
 be attributed, namely, the place where the contract was 
 made, or the place where it is to be performed. In my 
 view they are both matters which must be taken into con- 
 sideration, but neither of them is, of itself, conclusive. 
 And still less is it conclusive, as it appears to me, as to 
 the particular law which was intended to govern particular 
 parts of the contract between the parties. ... In this case, as 
 in all such cases, the whole of the contract must be looked 
 at, and the contract must be regulated by the intention of 
 the parties as appearing from the contract. It is perfectly 
 competent to those who, under such circumstances as I 
 have indicated, are entering into a contract to indicate by 
 the terms which they employ, which system of law they 
 intend to be applied to the construction of the contract, 
 and to the determination of the rights arising out of it. 
 
 "Now in the present case it appears to me that the 
 language of the arbitration clause indicates very clearly 
 that the parties intended that the rights under that clause 
 should be determined according to the law of England. 
 As I have said, the contract was made there; one of the 
 parties was residing there. Where under such circum- 
 stances the parties agree that any dispute arising out of 
 their contract shall be 'settled by arbitration by two mem- 
 bers of the London Com Exchange or their umpire in 
 the usual way, ' it seems to me that they have indicated as 
 clearly as it is possible to do, their intention that that par- 
 ticular stipulation, which is a part of the contract between 
 
THE ORDINARY UNDERSTANDING 269 
 
 them, shall be interpreted according to, and governed by, 
 the law, not of Scotland, but of England ; and I am aware 
 of nothing that stands in the way of the intention of the 
 parties thus indicated by the contract they entered into 
 being carried into effect." 
 
 And Lord Watson says: ' "Upon the first of these ques- 
 tions I have been unable to arrive at the same conclusion 
 with the Courts below. When two parties, living under 
 different systems of law, enter into a personal contract, 
 which of these systems must be applied to its construction 
 depends upon their mutual intention, either as expressed 
 in their contract, or as derivable by fair implication from 
 its terms. In the absence of any clear expression of their 
 intention, it is necessary and legitimate to take into ac- 
 count the circumstances attendant upon the making of the 
 contract, and the course of performing its stipulations con- 
 templated by the parties ; and amongst these considerations 
 the locus contractus and the locus solutionis have always 
 been regarded as of importance, although English and 
 Scotch decisions differ in regard to the relative weight 
 which ought to be attributed to them when the place of con- 
 tracting is in one forum,^ and the place of performance in 
 another. In the present case it does not appear to me to 
 be necessary to discuss the relative value of these considera- 
 tions, because, in my opinion, the clause of reference is 
 expressed in terms which clearly indicate that the parties 
 had in contemplation and agreed that it should be inter- 
 preted according to the rules of English law. If they had 
 stipulated that all disputes arising out of the contract were 
 to be decided in the Court of Session I should have been 
 of opinion that they had in view the principles of Scotch 
 law, and meant that their mutual stipulations should be 
 construed according to these principles. And, to my mind, 
 their selection from the membership of a commercial body 
 
 ' 6 The Eeporta 188, at p. 198. 
 'Italics ouis. 
 
27a COMMERCIAL ARBITRATION 
 
 in London of a conventional tribunal which is to act 'in 
 the usual way,' or, in other words, in the manner which 
 is customary in London, indicates, not less conclusively, 
 that, in agreeing to such an arbitration, they were con- 
 tracting with reference to the law of England. ' ' ° 
 
 Lord Ashbourne says:^° "A contract which provided 
 that disputes should 'be settled by arbitration by two mem- 
 bers of the London Corn Exchange or their umpire in the 
 usual way, ' distinctly introduces a reference to well-known 
 laws regulating such arbitrations, and those must be the 
 laws of England. This interpretation gives due and full 
 eifeet to every portion of the contract, whereas the arbitra- 
 tion clause becomes mere waste paper if it is held that the 
 parties were contracting on the basis of the application of 
 the law of Scotland which would at once refuse to acknowl- 
 edge the full efficacy of a clause so framed." 
 
 Again, the Lord Chancellor (Herschell) in this case 
 says: ^^ "But then it is argued that an agreement to refer 
 disputes to arbitration, deals with the remedy and not with 
 the rights of the parties, and that consequently the forum 
 being Scotch, the parties cannot by reason of the agree- 
 ment into which they have entered interfere with the ordi- 
 nary course of proceedings in the Courts of Scotland. . . . 
 Stated generally I should not dispute that proposition so 
 far as it lays down that the parties cannot, in a case where 
 the merits fall to be determined in the Scotch Courts, in- 
 sist, by virtue of an agreement, that those Courts shall 
 depart from their ordinary course of procedure. But . . . 
 that is not really the question which has to be determined in 
 the present case. The question which has to be determined 
 is whether it is a case in which the Courts of Scotland ought 
 to entertain the merits and adjudicate upon them. If it 
 were such a case, then no doubt the ordinary course of pro- 
 
 • 6 The Eeports 188, at p. 198. 
 "/Bid., p. 201. 
 ^Ibid., p. 196. 
 
THE ORDINARY UNDERSTANDING 271 
 
 cedure in the Scotch Courts would have to be followed; 
 but the preliminary question has to be determined whether 
 by virtue of a valid clause of arbitration, the proper 
 course is for the Courts in Scotland not to adjudicate 
 upon the merits of the case, but to leave the matter to be 
 determined by the tribunal to which the parties have agreed 
 to refer it. . . . Viewed in that light I can see no difficulty, 
 and the argument that to give eifect to this arbitration 
 clause would interfere with the course of procedure in the 
 forum in which the action is pending, seems to me entirely 
 to fail."!^ 
 
 Lord Kinnear said in the same case : ^* " The contract 
 which they made in these circumstances is that disputes 
 should 'be settled by arbitration by two members of the 
 London Corn Exchange, or their umpire, in the usual way. ' 
 Now, when a London merchant stipulates that disputes 
 under his contract are to be referred to members of such 
 a body as the London Corn Exchange — that is, to mer- 
 chants or brokers carrying on business in the city of Lon- 
 don — ^I think that that means that the tribunal is to be 
 constituted and the arbitration conducted in London ; and 
 when it is farther stipulated that the arbitration is to be 
 by two members of the Corn Exchange, 'or their umpire, 
 in the usual way,' I think that that imports a reference to 
 a known Iww and practice regulating the constitution amd 
 conduct of such arbitrations, and that can only be the law 
 and practice of England." 
 
 English judges and English merchants find it hard to 
 understand why, in an agreement which reads "In case of 
 difference, arbitration in the usual way by the London 
 Board of Trade," our courts should be astute to find that 
 the intent of the parties was to contract in accordance with 
 our law, and that according to our law, the contract is in- 
 valid. Such decisions encourage unethical conduct upon 
 
 "Italics ours. 
 
 "21 Session Cases (4th Series) 204, at p. 212, Italics ours. 
 
272 COMMERCIAL ARBITRATION 
 
 the part of business men. For it is the ctear intention of 
 the modern merchant that, whichever law is to apply, 
 there is to be no litigation until after an award is made. 
 Otherwise he stultifies himself. The most recent authority 
 in England^* holds that when merchants insert a clause 
 that a dispute is to be arbitrated "in the usual way," 
 they do not mean thereby "according to the law (of arbitra- 
 tion) of the land," but they do mean "according to the 
 habitual custom of their trade." 
 
 A very modern interpretation is the Massachusetts lead- 
 ing case of Mittenthal v. Mascagni, decided in 1903.^° Mas- 
 cagni, the great composer, while a subject of Italy, made 
 in Florence a contract with a manager to direct certain 
 concerts and present certain operas, composed by him, in a 
 fifteen weeks' tour through the United States and Canada. 
 This contract contained a provision, in substance, that the 
 contract should be governed entirely by the laws of Italy 
 and that any suit upon it should be brought in the Courts 
 of Florence, except that Mascagni might, if he chose, sue 
 in the Courts of New York for his compensation. Fancy 
 — all other, courts save those of Florence and New York 
 completely "ousted" of jurisdiction! What would a 
 Massachusetts court say to that? 
 
 KnOwlton, C. J., says," with what would seem to be a 
 very fine application of common sense: "We can fancy 
 the parties to this contract at the time of making it saying 
 something like this: 'As the performance of this contract 
 will not only involve travel through one or more foreign 
 countries in going to America and returning, but will in- 
 volve journeying long distances through a great many in- 
 dependent States, each of which has its own courts and 
 system of laws, under some of which a person sued in a civil 
 action, when about to leave the State may be arrested and 
 
 " Bright V. Gibson, 1916. Vide ante, pp. 223-224 
 "183 Mass. 19. 
 "Ihid., pp. 23-24. 
 
THE ORDINARY UNDERSTANDING 273 
 
 held to bail or in imprisonment, if suits may be brought in 
 any one of these numerous jurisdictions, there is a liability 
 to ^eat trouble and expense on the part of the defendant 
 in meeting the litigation. The contract contemplates a 
 service of fifteen weeks, after which Maestro Mascagni in- 
 tends to return to his permanent home in Florence. It will 
 be better and more reasonable for both of us to provide that 
 our controversies, if any arise, shall be settled by the courts 
 of Florence, than to leave both parties subject to suits in 
 forty or fifty different jurisdictions, at great distances 
 from the home of either.' " Then he asks: "If, moved by 
 such considerations, the parties made the agreement in 
 question, shall the court say that they were non compotes 
 mentis, and that their agreement was so improvident and 
 unreasonable that it cannot be permitted to stand?" This 
 Court finds that "the tendency in modern times is to per- 
 mit greater freedom in contracting in matters of this kind 
 than formerly" and cites several modern Massachusetts 
 decisions.^^ 
 
 It is convinced that the "determining question" is 
 "whether such a contract as this is so improvident and un- 
 reasonable, such an abnegation of legal rights, that the 
 government, for the protection of mankind, will refuse to 
 recognize it, even when made in a foreign country by sub- 
 jects or citizens of that country."^' And it recognizes 
 clearly that such a provision as this "is analogous to the 
 limitation of the subjects of which the courts shall have ex- 
 clusive jurisdiction, by a provision for the arbitration of 
 incidental and subsidiary questions out of court, which is 
 approved in cases above cited. It is also analogous to the 
 limitation by contract of the time within which suits may 
 be brought."" 
 
 "Miles V. Schmidt, 168 Mass. 339; Daley v. People's BuildmSf 
 Loan Sr Saving Association, 178 Mass. 13. 
 " 183 Mass, 19, at p. 23. 
 "Eliot National Sank v. Seal, 141 Mass. 566. 
 
274 COMMERCIAL ARBITRATION 
 
 Accordingly, in Massachusetts such a clause is held to he 
 valid. It is true that the Court calls attention to the fact 
 that the contract is one "between citizens of foreign States 
 who, so far as our tribunals are concerned, well might make 
 any reasonable arrangement for the settlement of their dis- 
 putes." But the Court does not rest its decision upon 
 the mere fact of foreign citizenship, for it says: "In most 
 cases, certainly in a case like the present, there is no oc- 
 casion for the protection of the dignity or convenience of 
 the courts." '^'^ Shall we give to foreigners the right to 
 "make any reasonable arrangement for the settlement of 
 their disputes" and deny it to our own citizens? "There 
 is no attempt here ^^ to deprive either party of the right 
 of appeal to the courts . . . but only an attempt to nar- 
 row the area within which suits may be brought." 
 
 But that is precisely what is intended by the usual ar- 
 bitration clause, is it not ? It does not deprive either party 
 of the right to sue; it merely fixes the method for deter- 
 mining the liability. No one is deprived of his protection 
 by the court, especially under submissions which have the 
 sanction of legislative authority. Even a Common Law 
 arbitration can be enforced by the courts. It was the 
 denial of the right to apply to the courts for specific en- 
 forcement of such an agreement which ousted the courts 
 of equity of their inherent power, not the agreement it- 
 self. If Baron Jeffreys' decision in Norton v. Mascall^^ 
 or Lord Eldon's in Waters v. Taylor "^ were applied today, 
 such agreements would give to the parties the same rights 
 to enforce them in the courts as are conferred upon them by 
 all other reasonable contracts. 
 
 Lord Eomer held in the same year (1903) in England in 
 Austrian Lloyd Steamship Compamy v. Gresham Life As- 
 
 "" 183 Mass. 19, at p. 23. Italics ours. 
 
 ^lUd., p. 24. 
 
 ="" Reports of Cases in Chancery," Vol. II, p. 304 (1694). 
 
 " 15 Vesey Jr. 10. 
 
THE ORDINARY UNDERSTANDING 275 
 
 surance Society ^* that the agreement of the parties to sub- 
 mit any dispute arising under the contract to the Courts 
 at Budapest amounted to nothing more than the nomi- 
 nating of "a particular individual as arbitrator" and an 
 "agreement to submit any dispute under the contract to 
 the arbitration of that person." And, accordingly, it was 
 declared to be valid.^° 
 
 Over a century before Lord BUenborough was called 
 upon, in the Courts of England, to consider the same point. 
 He made no distinction between subjects of England and 
 foreign subjects. The clause he had under consideration 
 was one whereby seamen, before taking their trip for a 
 Continental port, agreed: "That they would not in foreign 
 parts prosecute payment of any money whatever of the 
 captain, but be satisfied with what he might be pleased to 
 advance them abroad in deduction of their wages." The 
 report says that ' ' Topping for the plaintiff, contended that 
 this was no bar to the present action. The parties by their 
 private agreement could not oust the jurisdiction of our 
 courts. The plaintiff might be liable in his own country 
 for suing here ; but the only thing to be considered in this 
 cause was, whether the wages were due." Lord Ellen- 
 borough said that if this had been "the regulation of a 
 foreign government," he would "leave that government to 
 enforce it" by penal or other effective remedy. "But," 
 says he, "by the personal contract between the individuals 
 before the court, it is expressly stipulated that the mariners 
 shall not sue the captain for wages in foreign parts. It is 
 impossible for me to say that this stipulation is void." 
 
 ''Ij. E. [1903] 1 K. B. 249. 
 
 ^ The clause here read: " Powr toutes contestations qui pourraient 
 swgir du control d^ assurance toutes les parties intSressies se sou- 
 mettent de convention expresse d la jurisdiction des tribunaux compe- 
 ' tents de Budapest," which translated by the Anglo-French jurist, 
 Mr. Thomas Barclay, read as follows: "For all disputes which may 
 arise out of the contract of insurance, all the parties interested ex- 
 pressly agree to submit to the jurisdiction of the Courts of Budapest 
 having jurisdiction in such matters." 
 
276 COMMERCIAL ARBITRATION 
 
 "There may be great reason," said this learned English 
 judge further, "for protecting the captain from suits in 
 foreign countries, where he may have no funds to answer 
 the demands of the mariners; and it may be conducive to 
 the interests of commerce that the mariners should have 
 the strongest inducement to remain in the ship till the ad- 
 venture is completed. The rate of wages might be in part 
 determined by the condition that they were not demandable 
 till the ship's return home." 
 
 "The agreement," it is true, as he says, "was made 
 abroad; but it is transitory; and we are bound as far as 
 we are able to give it the same construction and effect 
 which it would receive in the country where it tms 
 made."^'^ 
 
 In another Massachusetts case,^' Judge Holmes (now of 
 the United States Supreme Court) held that an agreement 
 by stockholders that "Any action brought against this As- 
 sociation by any Shareholder shall be brought ... in the 
 County of Ontario, State of New York" was valid and a 
 bar to suit in Massachusetts. 
 
 Judge Holmes was not terrified by any fear of "ouster" 
 of the Massachusetts court's jurisdiction. Said he: "It is 
 true that in this case the question is not between counties 
 but between States, and that our decision requires a resi- 
 dent of Massachusetts to go elsewhere for a remedy upon 
 a contract made here. Beichard v. Manhattan Ins. Co., 31 
 Mo. 518, 520, 521. But objections of this sort may be made 
 to appear more serious than they are. Courts are less and 
 less disposed to interfere with parties making such con- 
 tracts as they choose, so long as they interfere with no one's 
 welfare but their own. The plaintiff might have given his 
 money to the corporation if he had seen fit. We see no 
 
 "Johnson V. Madhielsen, 3 Campb. 44 (1811), ItaHcs ours. 
 ""Daley v. People's Building, fc. Assoc, 178 Mass. 13. 
 
THE ORDINARY UNDERSTANDING 277 
 
 reason why lie might not give it upon such partial return 
 as he was content to accept." '° 
 
 But the Massachusetts courts have not been consistent. 
 They still hold that an arbitration clause is "ousting the 
 courts of jurisdiction," ^' saying "It is well settled in this 
 Commonwealth, that an agreement to refer to arbitration 
 will not be enforced in equity, and will not be sustained as 
 a bar to an action at law or a suit in equity." Thus, hav- 
 ing deprived the parties of all recourse to the courts either 
 of law or equity to enforce an agreement into which pre- 
 sumably they entered while taking full account of the busi- 
 ness factor of expeditiously disposing of possible contro- 
 versy, the Court holds that by so agreeing they have com- 
 pletely ousted the courts of jurisdiction."* 
 
 The New York courts are more consistent. In Meacham 
 V. Jwmestovm, F. & C. E. B. Co. (1914),''^ Judge Cardozo 
 finds that the Court had already held that "an agreement 
 that a foreign court shall have exclusive jurisdiction is to 
 be condemned" (citing Benson v. Eastern B. & L. Assn., 
 174 N. Y. 83), so cannot decide that it is "saved by a 
 declaration that resort to the foreign court shall be deemed 
 a condition precedent to the accrual of a cause of action. 
 A rule would not long survive if it were subject to be 
 avoided by so facile a device," says he. He can find no 
 difference in application "whether the tribunal is a court 
 or a board of arbitrators," except that in the case of ju- 
 dicial tribunals of other countries "we yield to regular 
 
 "lUd., pp. 19-20. 
 
 " See Brocklehurgt 4" Potter Co. v. Marsch, 225 Mass. 3 ; Seed v. 
 Washington Vi/re # Marine Ins. Co., 138 Mass. 572. 
 
 "In this connection, it is well to bear in mind that the Massa- 
 chusetts courts are still following Sorton v. Sayer, 4 H. & N. 643, 
 Boper V. Lendon, 1 El. & El. 825, Dawson v. Fitzgerald, L. E. 1 Ei D. 
 257, Edwards v. Aberayron Ins. Soc, L. E. 1 Q. B. D. 563, the obso- 
 lete character of which as guiding English precedents we have already 
 disclosed (see ante, pp. 185-186, 192-195). See Ueed v. Washington 
 Fire # Marine Ins. Co. (1885), 138 Mass. 572, at p. 577, Nute v. 
 Hamilton Ins. Co., 6 Gray 174, and Sail v. People's Ins. Co., 6 Gray 
 185. 
 
 "211 N. T. 346, at p. 352. 
 
278 COMMERCIAL ARBITRATION 
 
 and duly organized agencies of the state and in the other 
 to informal and in a sense irregular tribunals. ' ' Thus the 
 New York courts refuse to follow Lord Ellenborough, Lord 
 Romer, and Judge Knowlton of Massachusetts, and treat 
 contracts referring future controversy to other tribunals 
 than their own (whether "regular and duly organized 
 agencies of the state" or "informal and in a sense irregular 
 tribunals") as void and unenforceable. In this respect 
 they follow the fundamental error to its logical end, for 
 Judge Cardozo makes it clear that to reason "that resort 
 to the foreign court shall be deemed a condition precedent 
 to the accrual of a cause of action" is but to avoid the rule 
 by "a facile device." Nevertheless, as we have seen, the 
 courts of New York (as did the courts of England) make 
 this very distinction in sustaining some arbitration clauses 
 and invalidating others. The truth is, that until the nettle 
 is grasped by the thorns there is no logical consistency in 
 the decisions.'^ Judge Cardozo, universally counted one 
 of the ablest judges in New York, permits himself in the 
 Meacham case to say: 
 
 "The jurisdiction of our courts is established by law, 
 and it is not to be diminished, any more than it is to be 
 increased, by the convention of the parties." 
 
 Yet every day, one might say every hour, parties by 
 their own agreements withdraw from the courts matters 
 which they think can better be disposed of by settlement, 
 by general release, by arbitrament, and the courts not 
 only assent to the arrangement but commend it. Most 
 assuredly, if Judge Cardozo had discovered that funda- 
 mental precedential error had crept into the law of New 
 York, he would have been the first to correct and set right 
 the common law of his State, as he has done in other cases 
 in which judicial error was committed.^' 
 
 "See Engel v. Shubert Theatrical Co., 166 App. Div. 394 and 
 brief therein of Walter H. Pollak. 
 
 "See opinion in People v. Charles Schweinler Press, 214 N. Y. 
 395. 
 
CHAPTER XXI 
 
 CONCLUSION 
 
 It is no reflection upon the administration of justice that 
 the desire of merchants to keep out of courts should per- 
 sist in spite of the very many improvements that have been 
 made in judicial machinery. We may not wholly subscribe 
 today to what Matthew Bacon said: "It is one of the 
 greatest Objections to our Laws, that the Way to the 
 Knowledge of them is so dark and rugged, so full of 
 Windings and Turnings, that the most Knowing very 
 often find it difiScult to be able to pronounce with Cer- 
 tainty, concerning some Points they are soUicitous 
 about. "^ 
 
 Yet, as Kyd points out, even after a complete system of 
 law and regular courts for the distribution of justice are 
 erected, by reason of the necessity of giving certainty to 
 their decisions courts are, in fact, obliged "to adapt pe- 
 culiar forms of action, and modes of pleading, to the par- 
 ticular nature of the case, and to establish certain formali- 
 ties in the manner of bringing the parties before the court. ' ' 
 Consequently, "The consideration of expence, that must 
 necessarily be incurred before a hearing can be obtained, 
 and a fear that a technical mistake in some part of the 
 proceedings may endanger the parties success, often pre- 
 vail with him {the merchant), though satisfied of the jus- 
 tice of his cause, to refer it to the decision of an indifferent 
 person, before whom we ma/y explain every circumMance, 
 
 "'The Compleat Arbitrator or the Law of Awards," Matthew 
 Bacon, p. iii. 
 
 279 
 
280 COMMERCIAL ARBITRATION 
 
 without the apprehension of failing from, ignorance of 
 form." ^ 
 
 And it is a healthy thing for Society to dispose of con- 
 troversy without friction. It was the practice of Confucius 
 to summon the disputants before him and to talk to them 
 of the futility of quarrels. "He importuned them to settle 
 amicably any controversies that arose. It was his object 
 to have the combatants meet in complete understanding. 
 Then it was that he set forth his famous maxim: 'You 
 should not do to others that which you would not have 
 others do to you.' 
 
 "His principle of government was 'Love thy neighbor 
 as thyself. ' It was his object to put down strife and have 
 the people decide their own disputes."^ 
 
 In the Bible we read: "Agree with thine adversary 
 quickly, whiles thou art in the way with him; lest at any 
 time the adversary deliver thee to the judge, and the judge 
 deliver thee to the oflScer, and thou be cast into prison. " * 
 
 Nowhere has this spirit of pacific adjustment taken on 
 finer form than in the recent cooperative action of the 
 Bar of New York State and the Chamber of Commerce of 
 the State. Recognizing that this aim of business men was 
 one to be facilitated, not handicapped, the Bar of New 
 York State has now joined hands with the business men of 
 the State in providing ready machinery for commercial 
 arbitration. Today there is available for every kind of 
 controversy an "OfBcial List of Arbitrators" made up of 
 lawyers, or of business men, awaiting one's choice. The 
 "Rules for the Prevention of Unnecessary Litigation" (see 
 Appendix A) were designed to aid merchants with wise 
 counsel and advice before controversy arises, aad, when it 
 
 '"A Treatise on the Law of Awards" — Stewart Kyd, pp. 2, 3. 
 Xti3.1ics ours 
 "Scott: "The Evolution of Law," pp. 99-100. 
 *Matt. v., 25. 
 
CONCLUSION 281 
 
 does arise, to put at their command simple machinery with 
 which to dispose of it quickly. 
 
 Why should such a movement be hampered by the con- 
 tinuance of a rule unsound in public policy, bad m legal 
 theory, obsolete historically and unsupported by sound legal 
 precedent ? Only lack of true information has kept it alive 
 so long. But "Ignorantia Legis Neminem Excusai." 
 (Ignorance of the Law excuses no man ) This includes 
 the Lawyer and the Judge, does it not? And if repudia- 
 tion of one's promise to arbitrate is, as Lord Eldon put it, 
 mmoral, why continue to lend legal sanction to itf 
 
APPENDICES 
 
 APPENDIX A 
 
 EEPOET OF THE JOINT COMMITTEE OP THE CHAMBEB OP 
 
 COMMEBCE OF THE STATE OF NEW YORK AND OF 
 
 THE NEW YORK STATE BAR ASSOCIATION. 
 
 Approved by the Chamber of Commerce, November 2, 1916. 
 
 Rules foe the Prevention ov Unnecessahy Litigation 
 
 Object of the Rules — It would be impracticable for the Cham- 
 ber of Commerce of the State of New York and the New York 
 State Bar Association to attempt to lay down rules of law for 
 the guidance of laymen. That would be an attempt to writa 
 law books and to make every man his own lawyer. Such a 
 course would be futile. It would promote, rather than prevent, 
 unnecessary litigation. 
 
 The attempt here made is simply to put in concrete form a 
 few common sense rules of business which experience has proved 
 to be valuable in the prevention of unnecessary litigation. As 
 litigation and its prevention are peculiarly within the province of 
 the legal profession, these rules necessarily relate, in large meas- 
 ure, to the advice of counsel and to the point at which it is to the 
 interest of the business man to turn to his lawyer for guidance. 
 
 These rules are constructed on the theory that prevention is 
 preferable to cure. They contain nothing that is new and much 
 that is necessarily general and commonplace. If they did not 
 represent a common experience, they would be useless. Therefore, 
 in the preparation of these rules, an effort has been made to 
 present recognized business principles in the simplest form and 
 even to formulate what may sometimes seem to be self-evident 
 truths. Even if the truths are trite, the fact that they are formu- 
 lated may serve as a reminder at a critical moment. 
 
 283 
 
284 APPENDICES 
 
 Unnecessary Litigation Defined — ^Litigation may be said to be 
 tinneeessary if it can be prevented by the exercise of reasonable 
 care. There are three points at which reasonable care is specially 
 effective. Care at the source is, of course, most effective. After 
 the facts become fixed and before suit, it may or may not prevent 
 litigation. ' After suit, it may reduce the litigation. These rules 
 are accordingly divided into three parts: 
 
 I. Prevention of Litigation at the Source. 
 II. Prevention of Litigation after the Facts become fixed and 
 
 before Suit. 
 III. Prevention of Litigation after Suit. 
 
 PAET II 
 
 Prevention op Litigation aiter the Facts Become Fixed and 
 Before Suit 
 
 After the facts upon which a dispute can be based have become 
 fixed, either before or after a dispute has arisen, it is possible 
 to do much to prevent litigation. What can best be done in each 
 case and whether with or without legal advice, necessarily de- 
 pends upon the facts and the parties to the prospective contro- 
 versy. Differences may be minimized, adjusted or arbitrated. 
 If not so disposed of, litigation will usually ensue. 
 
 RtHjE 1. In the matter of good faith give your adversary the 
 benefit of the doubt. 
 
 Rule 2. Remember that pugnacity, vindictiveness, ill temper, 
 impatience, carelessness, short-sightedness, arrogance, eagerness 
 to take undue advantage and insistence on unethical principles 
 are all provocative of litigation. Even if these instincts are in- 
 herent in human nature they may be controlled by an impartial 
 consideration of the facts and a proper exercise of the reasoning 
 powers. Before rushing into litigation wise legal advice of the 
 right sort is all important. 
 
 Rule 3. Endeavor to look at both sides of a situation in a calm 
 and impartial manner. Eliminate all personal animosity. 
 
 Rule 4. Discuss your differences fairly, frankly, patiently, 
 without prejudice and with due regard to the sensibilities of the 
 
APPENDICES 285 
 
 other parties in interest, or employ a lawyer who will do so. 
 
 Rule 5. In such discussions with adverse parties avoid making 
 positive assertions, even if true, which may be offensive, but 
 rather state the same facts in a diplomatic manner not calculated 
 unnecessarily to arouse antagonism. 
 
 Rule 6. Throw all light possible upon the questions involved in 
 the controversy in order that nothing shall be concealed which, if 
 known, might harmonize divergent views. 
 
 Rule 7. Display a spirit of conciliation and be prepared to 
 make some concessions, if necessary, to avoid a breach. 
 
 Rule 8. Remember that "a lean settlement is better than a fat 
 law suit." 
 
 Rule 9. When negotiations fail to settle a dispute submit the 
 questions to arbitration and abide by the decision of the arbitrators. 
 
 Minimizing Differences — It sometimes happens that, notwith- 
 standing the die is cast that foreshadows a dispute, it is possible 
 to pursue some course of action which will have the effect of 
 reducing differences or damages to a minimum. Such a course 
 must generally be promptly undertaken and may or may not 
 require legal advice, depending upon the parties and the ques- 
 tions involved. 
 
 Adjustment of Differences — Differences may be adjusted by 
 the parties themselves or with the aid of a mutual friend or their 
 legal advisers. Which method is better depends upon the parties 
 and the questions concerned. When questions of law are in- 
 volved, the legal opinion of a lawyer acceptable to both parties 
 is often sufficient. 
 
 Submission of Controversy upon Agreed Statement of Facts — 
 Persons of full age may submit to the court upon an agreed state- 
 ment of facts any question of difference which might be the 
 subject of an action. This should never be done without advice 
 of counsel. 
 
 The usual difficulty with this procedure is that the parties will; 
 not agree upon the facts thus rendering a legal or equitable action 
 necessary. 
 
 Where the parties are able to agree, however, this method of 
 procedure is speedy, amicable and effective, resulting in a formal 
 judgment of the court. 
 
286 APPENDICES 
 
 Arbitration — Where differences cannot be adjusted between the 
 parties or their attorneys and the intervention of a third party 
 becomes necessary, there are several forms which arbitration may 
 take. The arbitration may be (1) informal, (2) under the Code, 
 (3) under the auspices of a commercial body, or (4) under the 
 auspices of a bar association. 
 
 The experience of many business men and lawyers testifies to 
 the advantage of these methods of adjusting differences wherever 
 possible. They are inexpensive, speedy and peaceful. 
 
 Parties who may arbitrate — ^Under the law of this state a corpo- 
 ration or any person of full age and sound mind may enter into 
 arbitration. 
 
 Disputes which may b? arbitrated — ^Under the law of this state 
 any existing controversy may be submitted to arbitration except 
 a claim to an estate in real property in fee or for life. 
 
 Where the sole arbitrator is a lawyer, or where the submission 
 provides that a lawyer on the board of arbitrators shall be sole 
 judge of the law, there is no reason why substantially any ques- 
 tion of law or fact involving property rights should not be arbi- 
 trated, provided the parties interested are of full age and sound 
 mind. In arbitrations involving technical questions, whether in 
 law or special lines of business, experience has shown the ad- 
 vantage of selecting as arbitrators persons in that particular 
 line of business or otherwise familiar with the trade customs or 
 technicalities involved. 
 
 The following are peculiarly appropriate subjects for Arbitra- 
 tion : disputes concerning contracts, wills, mechanics' liens, insur- 
 ance policies, sale and delivery of goods, partnerships, commissions, 
 value of services, and particularly disputes arising out of business 
 transactions in foreign countries, etc. 
 
 Informal Arbitration — ^Informal arbitration is simply the sub- 
 mission of a controversy to a third party without formality with 
 an understanding to abide by the decision. Such third party may 
 be a business man or a lawyer whose legal opinion is acceptable 
 to both. This method is often very effective when the controversy 
 is one that can be settled out of court. 
 
 Arbitration under the Code — The Code provides a complete 
 system for the arbitration of differences before one or more arbi- 
 trators to be selected by the parties. A written submission to 
 
APPENDICES 287 
 
 arbitration is required and, at the option of the parties, it may 
 provide for a judgment of the court to be entered on the award. 
 
 Arbitration under the Auspices of Commercial Bodies — The 
 New York Chamber of Commerce and many other commercial 
 bodies have provided systems of arbitration not only for the use 
 of their own members but also for non-members whether citizens 
 of this or any foreign country. They maintain committees of ar- 
 bitration to supervise such matters. 
 
 Arbitration imder the Auspices of the New York State Bar 
 Association — Following the example of commercial bodies, the 
 New York State Bar Association has established under its auspices 
 a system of arbitration which it deems practicable for lawyers 
 to recommend to clients wishing to settle their disputes by arbitra- 
 tion. With one or more lawyers sitting in each case, arbitrators 
 are enabled to pass upon questions of law as well as questions 
 of fact. 
 
 PAET III 
 
 Prevention of Litigation after Suit 
 
 After a suit has been commenced, the parties should leave its 
 management and all negotiations relating to the conduct or set- 
 tlement thereof in the hands of their respective counsel. 
 
 The Chamber of Commerce of the State of New York and the 
 New York State Bar Association, with a view to the prevention of 
 unnecessary litigation after suit, urge upon members of the Bar 
 that they make effort, even after litigation has begun, to bring 
 about an amicable adjustment of differences; or, where this is 
 impossible, to reduce disputed facts and disputed questions of 
 law to a minimum. The Chamber and the Bar Association rec- 
 ommend that, in arranging for conferences, members of the Bar 
 call attention to this recommendation as the opinion of public 
 bodies submitted for the guidance of parties involved in litigation. 
 
 It would seem to be within the power of counsel in most cases to 
 bring the parties together, if not upon terms of settlement, at least 
 upon facts which should not unnecessarily occupy the time of the 
 Court.' To that end parties and counsel are urged to encourage 
 agreements and stipulations concerning the facts wherever possible. 
 
288 APPENDICES 
 
 In this connection a perusal of the rules under Part II is com- 
 mended to aU parties in interest. 
 
 APPENDIX B 
 
 BULES AND EEGULATIONS OP THE CHAMBER OP COM- 
 MERCE OP THE STATE OP NEW YORK 
 
 All Submissions shall be in proper form and a copy filed with 
 the Clerk, duly acknowledged before a notary or other authorized 
 official as required by law, together with sufficient evidence of proof 
 of authority in the case of an agency, partnership or corporation, 
 
 (o.) If signed by an ag^nt, duly authenticated copy of his 
 power of attorney; 
 
 (6.) If signed by one or more partners, written consent from 
 co-partners not signing Submission; 
 
 (c.) If signed in behalf of a corporation, duly certified copy 
 of resolution authorizing Submission. 
 
 II 
 
 The proceedings shall not be public unless requested by the 
 parties. Members of the Committee on Arbitration may be present 
 at any of the hearings. The records shall be open at all times to 
 members of the Chamber of Commerce and others upon the written 
 order of the Committee on Arbitration. 
 
 m 
 
 The hearing of cases shall commence as soon as practicable after 
 Submission, and shall be pressed to speedy termination. 
 
 IV 
 AU irrelevant or onimportant matters shall be excluded. 
 
 V 
 
 The Arbitrators shall construe these rules and the submission: 
 to them as being designed to secure reason and equity in matters of 
 
APPENDICES 289 
 
 trade and commerce, with the least possible expenditure of time, 
 energy and money and in such manner as to avoid all unnecessary 
 irritation. 
 
 VI 
 
 If three Arbitrators are chosen, the one chosen from the "List of 
 Official Arbitrators" shall act as Chairman. 
 
 VII 
 
 Each party to the Arbitration shall be entitled to a copy of the 
 award. 
 
 VIII 
 
 The Chambei^ of Commerce will provide the parties who submit 
 to Arbitration under its rules, with adequate room and all neces- 
 sary forms and papers free of charge, and through its Committee 
 on Arbitration, will endeavor to do or cause to be done all such 
 acts as it properly may do for the purpose of assisting the par- 
 ties and the Arbitrators in the course of an Arbitration. 
 
 IX 
 
 Each party shall furnish his own witnesses, paying the fees 
 thereof. 
 
 X 
 
 A competent stenographer shall be employed, and the expense 
 for this service is to be charged against the parties to the Submis- 
 sion as the Arbitrators may decide. 
 
 XI 
 
 In case of any misunderstanding or any question concerning the 
 interpretation of these Rules and Regulations, the decision of the 
 Committee on Arbitration of the Chamber of Commerce shall be 
 accepted by the parties as conclusive. 
 
 xn 
 
 Wherever the word "Party" or "Parties" is used in these rules 
 it shall refer to the parties to the Submission, and wherever the 
 word "Arbitrator" or "Arbitrators" is used it shall refer to the 
 
290 APPENDICES 
 
 Arbitrator or Arbitrators as the case may be, whether there are 
 one or more. Whenever the word "Committee" is used, it shall 
 refer to the Committee on Arbitration of the Chamber of Com- 
 merce. Whenever the word "Clerk" is used, it refers to the Clerk 
 of the Committee on Arbitration. 
 
 FEES 
 
 All fees of Arbitrators, expense for stenographers and other 
 minor expenses shall be awarded as the Arbitrators may decide. 
 
 DEPOSIT 
 
 The parties to the Submission shall each deposit with the Clerk 
 at the time of filing the Submission, the sum of $60.00 — or at the 
 discretion of the Committee, a larger amount — ^which shall be 
 disbursed by him for their account in payment of Arbitrators' 
 and stenographers' fees and minor expenses : 
 
 (a.) Arbitrators' fees: $10.00 per day or part thereof; 
 (6.) Stenographers' fees: the usual remuneration; 
 
 (Note. — The fees for Stenographer are based on the 
 following : 
 
 25 cents per folio of 10 lines, and 5 cents per folio each 
 
 for the second and third copies.) 
 
 If the Deposit appears insufficient to the Clerk, or becomes ex- 
 hausted, he shall call upon the parties equally for such further 
 sums as may be required : any balance to be refunded as the Arbi- 
 trators may decide. 
 
 THE CLERK 
 
 The duties of the Clerk of the Committee on Arbitration shall 
 be as follows: 
 
 He shall receive and file all Submissions, all copies of awards, 
 give notice of all hearings, keep a docket of all cases, and such 
 other books and memoranda as the Committee shall from time 
 to time direct. 
 
 He shall render all necessary assistance to the Arbitrators, at- 
 tend to their clerical work ; receive and disburse all fees and costs 
 
APPENDICES 291 
 
 and keep careful and accurate account thereof, under the super- 
 vision of the Committee on Arbitration. 
 
 If the clerk of the Committee on Arbitration is unable to attend, 
 the Assistant Secretary of the Chamber of Commerce shall take 
 his place. 
 
 AMENDMENTS 
 
 The Committee reserves full power to amend, add to or omit any 
 of these rules from time to time, as may be found expedient. 
 
 FORMS OF SUBMISSION 
 
 To Be Used in Submitting for Arbitration Cases ot 
 Difference 
 
 Form A 
 
 The Committee on Akbitration of the Chamber op Commerce 
 OF THE State of New York 
 
 and 
 
 Submission. 
 
 A controversy, dispute or matter of difference between the 
 undersigned having arisen and relating to a subject matter the 
 nature of which, briefly stated, is as follows: 
 
 We do hereby voluntarily submit the same and all matters con- 
 cerning the same to as Arbitrator, selected 
 by us from the "List of Official Arbitrators/' compiled and 
 established by the Committee on Arbitration of the Chamber of 
 Commerce of the State of New York, for hearing and decision 
 pursuant to the By-laws of the Chamber of Commerce of the 
 State of New York, and the Rules and Regulations adopted by 
 
293 APPENDICES 
 
 the Cominittee on Arbitration of the Chamber of Commeree, and 
 pursoant to Chapter 17, Title VIII. of the Code of Civil Pro- 
 cedure of the State of New York, and we agree to stand to, abide 
 by and perform the decision, award, order, orders and judgment 
 that may therein and therenpon be made mider, pursuant and 
 by virtue of, this submission. 
 
 And we do further agree that a judgment of the Supreme Court 
 of the State of New York, may be entered in any County in the 
 State of New York thereon. 
 
 "We do also in all respects waive any right to withdraw from or 
 revoke this submission after the arbitrator or arbitrators accept 
 their appointment hereunder, hereby expressly and specifically 
 waiving the provisions of Section 2383 of the Code of Civil 
 Procedure. 
 
 Dated, New York. 
 
 (Usual forms of corporate and individual acknowledgments 
 before notaries, etc.) 
 
 FOBM B 
 
 The Committke on Arbitration op the Chamber op Commerce 
 OF THE State op New York 
 
 and 
 
 ■ Submission. 
 
 A controversy, dispute or matter of difference between the un- 
 dersigned having arisen and relating to a subject matter the 
 nature of which, briefly stated, is as follows : 
 
 We do hereby voluntarily submit the same and all matters con- 
 cerning the same to and 
 who shall select a third arbitrator from the "List op Oppicial 
 Arbitrators," compiled and established by the Committee on 
 Arbitration of the Chamber of Commerce of the State of New 
 York, for hearing and decision pursuant to the By-laws of the 
 Chamber of Commerce of the State of New York, and the Bules 
 
APPENDICES 293 
 
 and Regulafions adopted by the Committee on Arbitration of the 
 Chamber of Commerce, and pursuant to Chapter 17, Title VIII. 
 of the Code of Civil Procedure of the State of New York, and 
 we agree to stand to, abide by and perform the decision, award, 
 order, orders and judgment that may therein and thereupon be 
 made under, pursuant and by virtue of, this submission. 
 
 And we do further agree that a judgment of the Supreme Court 
 of the State of New York may be entered in any County in the 
 State of New York thereon. 
 
 We do also in all respects waive any right to withdraw from or 
 revoke this submission after the arbitrator or arbitrators accept 
 their appointment hereunder, hereby expressly and specifically 
 waiving the provisions of Section 2383 of the Code of Civil 
 Procedure. 
 
 Bated, New York. 
 
 FOBM C 
 
 The Committee on Arbitration op the Chamber of Commerce 
 OP THE State op New York 
 
 and 
 
 A controversy, dispute or matter of difference between the 
 undersigned having arisen and relating to a subject matter the 
 nature of which, briefly stated, is as follows : 
 
 We do hereby voluntarily submit the same and all matters con- 
 cerning the same to 
 
 as Committee on Arbitration of the Chamber of Commerce, or a 
 quorum thereof, as Arbitrators selected by us for hearing and de- 
 cision pursuant to the By-laws of the Chamber of Commerce of 
 the State of New York, and the Rules and Regulations adopted 
 
294 APPENDICES 
 
 by the Committee on Arbitration of the Chamber of Commerce, 
 and pursuant to Chapter 17, Title VIII. of the Code of Civil Pro- 
 cedure of the State of New York, and we agree to stand to, abide 
 by and perform the decision, award, order, orders and judgment 
 that may therein and thereupon be made under, pursuant and by 
 virtue of, this submission. 
 
 And we do further agree that a judgment of the Supreme 
 Court of the State of New York may be entered in any County 
 in the State of New York thereon. 
 
 We do also in all respects waive any right to withdraw from 
 or revoke this submission after the arbitrator or arbitrators 
 accept their appointment hereunder, hereby expressly and spe- 
 cifically waiving the provisions of Section 2383 of the Code of 
 Civil Procedure. 
 
 Bated, New York. 
 
 APPENDIX C 
 ILLINOIS LAW OF ABBITEATION 
 
 Approved June 11, 1917. 
 
 Section 1. Be it enacted by the People of the State of Illinois, 
 represented in the General Assembly: That all persons having 
 requisite legal capacity may by an instrument in writing to be 
 signed by them submit to one or more arbitrators to be named in 
 the manner indicated by such writing, any controversy existing 
 between them, and may, in such submission agree that a judg- 
 ment of any court competent to have jurisdiction of the subject 
 matter of such iostrument, shall be rendered upon the award 
 made pursuant to such submission. 
 
 Sec. 2. The parties to such submission may by such submis- 
 sion designate the number of such arbitrators, which number 
 may be one or more as the parties shall agree; the manner in 
 which they may be appointed in the first instance and vacancies 
 caused by the refusal, incapacity or death of an appointee filled ; 
 the time and place of the hearing and the rules for the hearing 
 
APPENDICES 296 
 
 of such controversy, not in conflict with the provisions of this 
 Act; the parties to such submission may include by reference in 
 said written submission the published rules of any organization 
 or association which rules shall thereby become a part of the 
 contract of submission. 
 
 Sec. 3. A submission to arbitration shall, unless a contrary 
 intention is expressed therein, be irrevocable. 
 
 Sec. 4. Said arbitrators or any of them shall have the power 
 to administer oaths, subpoena and examine witnesses, to issue 
 subpoenas duces tecum requiring the production of such books, 
 papers, records and documents as may be evidence of any matter 
 under inquiry and to examine and inspect the same; service of 
 such subpoena shall be made by any sheriff or constable or other 
 person; the fees of witnesses for attendance and travel shall be 
 the same as the fees of witnesses before the circuit courts of this 
 State; any court of this State, having jurisdiction of the sub- 
 ject matter of the submission or any judge thereof upon the 
 application of such arbitrators or any of them, either iu term 
 time or vacation may compel attendance of witnesses, the pro- 
 duction of books and papers and giving of testimony before said 
 arbitrators by attachment for contempt or otherwise in the 
 same manner as the production of evidence may be compelled 
 before said court. 
 
 Sec. 5. The said arbitrators may authorize the taking of depo- 
 sitions without a commission in the same manner as may be 
 provided by law for the taking of depositions in suits pending 
 in courts of record of this State. 
 
 Sec. 6. The arbitrators may, of their own motion and shall by 
 request of a party 
 
 (a) at any stage of the proceedings submit any question of law 
 arising in the course of the reference for the opinion of the court 
 stating the facts upon which the question arises and such opinion 
 when given shall bind the arbitrators in the making of their award. 
 
 (b) state their final award as to the whole or a part of the 
 reference in the form of a conclusion of fact for the opinion 
 of the court on the questions of law arising and such opinion 
 shall finally conclude the proceeding, except as by this Act other- 
 wise provided. 
 
 Sec. 7. The award of the arbitrators, or a majority of them, 
 
296 APPENDICES 
 
 shall be drawn up in writing and signed by tbe arbitrators or a 
 majority of them; the award shall definitely deal with all mat- 
 ters of difference in the submission requiring settlement, but the 
 arbitrators- may, in their discretion, make a partial award or 
 awards, which shall be enforceable in the same manner as the 
 final award ; upon the making of such award, the arbitrators shall 
 deliver a true copy thereof to each of the parties thereto without 
 delay. 
 
 Sec. 8. If either of the parties neglect to comply with any 
 partial or final award, made by the arbitrators, the other party 
 may, at any time within one year from the time of such failure, 
 file such award, together with the submission in court. 
 
 Sec. 9. The party filing such award may, by giving ten days' 
 notice of his intention to the opposite party, and if no legal ex- 
 ceptions are taken to such award, have judgment thereon, as on 
 the verdict of a jury; upon any legal exceptions taken, the find- 
 ings of fact by the arbitrators shall be conclusive; successive 
 judgments in the same case may be entered on successive awards 
 of the arbitrators on the subject matter of the submission together 
 with the costs of arbitration and the court, and execution may issue 
 as in other eases. 
 
 Sec. 10. When the award requires the performance of any act 
 other than the payment of money, the court rendering such 
 judgment shall enforce the same by rule, and the party refusing 
 or neglecting to comply with such rule may be proceeded against 
 by attachment or otherwise as for a contempt. 
 
 Sec. 11. If any legal defects shall appear in the award or other 
 proceedings, or if it shall appear that the award is not sustain- 
 able under the opinions of the court upon questions of law under 
 section 6 of this Act, the court may set aside such award, or remit 
 the matters contained in the said award to the reconsideration 
 of the said arbitrators ; or, if it shall appear, on oath or affirma- 
 tion that said award was obtained by fraud, corruption or other 
 undue means, or that such arbitrators misbehaved, said court may 
 set aside such award. 
 
 Sec. 12. If there be any evident miscalculation or misdescrip- 
 tion, or if the arbitrators shall appear to have awarded upon 
 matters not submitted to them, not affecting the merits of the 
 decision upon the matters submitted, or where the award shall be 
 
APPENDICES 297 
 
 imperfect in some matters of form, not affecting the merits of the 
 controversy, and where such errors and defects, if in a verdict, 
 could have been lawfully amended or disregarded by the court, 
 any party aggrieved may move the court to modify or correct 
 such award. 
 
 Sec. 13. Applications to set aside, modify or amend or remit 
 such award, as provided in the sections 11 and 12 of this Act, must 
 be made before the entry of final judgement on such award: 
 Provided, nothing herein contained shall be so construed as to de- 
 prive courts of chancery of their jurisdiction, as in other cases. 
 
 Sec. 14. Writs of error and appeals may be taken from any 
 decision of the court upon questions of law under section 6 of this 
 Act, or matters arising in the course of the proceedings, by the 
 party feeling himself aggrieved, as in other cases; and if the case 
 shall be upon such writ of error or appeal remanded, such further 
 proceedings shall be had as the nature of the case may require. 
 
 Seo. 15. The parties may, in the submission, agree upon the 
 amount of compensation to be paid to the arbitrators and the 
 terms of the payment of the samej unless so agreed, each arbi- 
 trator shall be allowed, for every day's attendance to the business 
 of his appointment $3.00, to be paid in the first instance by the 
 party in whose favor the award shall be made, but to be recov- 
 ered of the other party with the other costs of suit, if the award 
 or final decision shall entitle the prevailing party to recover costs. 
 Sheriffs, constables, the baiHff of the municipal court of Chicago, 
 clerks and justices of the peace shall be entitled to the same fees 
 for services performed in gelation to any arbitration, as shall be 
 allowed by law for the like services in their respective courts. 
 
 Sec. 16. Arbitrators may be compelled, by order of the court, 
 to proceed to a hearing of the submission and to make report 
 without unaecessaiy delay. 
 
 Sec. 17. In this Act unless the context or subject matter other- 
 wise requires. 
 
 "Court," means the court named in the submission, and if no 
 court be named, any court having jurisdiction of the subject mat- 
 ter, to which application is made or proceedings had on a 
 submission. 
 
 "Submission" means a written agreement to submit differences 
 
298 APPENDICES 
 
 to arbitration, whether such differences be in whole or in part in 
 suit or not in suit. 
 
 Sec. 18. [Repeal.] An Act to revise the law in relation to arbi- 
 trations and awards, approved April 29, 1873, in force July 1, 
 1873, except as herein reenacted, is hereby repealed, but this 
 section shall not be construed so as to affect any right, actions or 
 causes of action that may have accrued or be pending when this 
 Act shall take effect. 
 
 Approved June 11, 1917. 
 
 APPENDIX D 
 
 FOEM OF AEBITEATION AGEEEMENT ADOPTED BY THE 
 
 PUBLIC SEEVICB COMMISSION FOE THE FIEST DISTEICT 
 
 OF THE STATE OF NEW YOEK WITH THE INTEEBOE- 
 
 OUGH EAPID TEANSIT COMPANY OF NEW YOEK 
 
 ("Vol, IV (1913) Reports of Public Service Commission for the 
 First District, State of New York.) 
 
 Chapter VI 
 
 ARBITRATION 
 
 Article XXX. If the Commission or the Lessee shall de- 
 sire to submit to arbitration any matter of difference arising 
 under any provision of this contract in respect of which it is 
 therein provided an arbitration may be had, then such matter 
 of difference may be submitted to arbitration. Such arbitration 
 shall be conducted as follows: Either the City, acting by the 
 Commission, or the Lessee, may give written notice to the other 
 that it requires the matter arising hereunder to be submitted to 
 arbitration, and shall at the same time name a disinterested per- 
 son as an arbitrator, and accompany the notice by a written ac- 
 ceptance by the arbitrator of the nomination. Within thirty (30) 
 days after the receipt of such notice, the party receiving the same 
 shall name a disinterested person as an arbitrator, and give writ- 
 ten notice of such nomination to the other party, the notice to be 
 accompanied by a written acceptance by the arbitrator of the 
 
APPENDICES 299 
 
 nomination. If the party to whom notice of arbitration is 
 given shall not so nominate an arbitrator, who shall so accept, 
 then the arbitrator named by the party giving the first notice shall 
 be the sole arbitrator. The Commission and the Lessee shall 
 upon the nomination of the second arbitrator select a third arbi- 
 trator; but if they fail to agree upon such third arbitrator 
 within thirty (30) days after the date of the nomination of 
 the second arbitrator nominated, the third arbitrator shall be 
 nominated by the Chief Judge of the Court of Appeals of the 
 State of New York; or if within fifteen (15) days after being 
 requested by either the Commission or the Lessee to make such 
 nomination, the said Chief Judge shall decline or faU to make a 
 nomination, then an arbitrator shall be nominated, upon the 
 request of the Commission or the Lessee and within a period of 
 fifteen (15) days by any Associate Judge of said Court of Appeals 
 in order of seniority; or if within such periods the said Judges 
 shall decline or fail to make a nomination, then the third arbi- 
 trator shall be nominated by the President or Acting President 
 for the time being of the Chamber of Commerce of the State 
 of New York. The arbitrators shall hear the parties and their 
 counsel or any statements or evidence which the parties or either 
 of them desire to submit. The failure to give the notice provided 
 for in Article XXIX shall not preclude the party failing to give 
 such notice from setting up counterclaims growing out of or in- 
 cident to the matter as to which the other party shall have given 
 such notice. Either party may, upon two (2) days' notice 
 (Saturdays, Sundays and Holidays excepted) to the other, bring 
 on the subject in dispute for hearing before the arbitrators. 
 Within thirty (30) days after such hearing commences, unless 
 such time shall be extended for good cause by written order of 
 the arbitrators or a majority of them, the arbitrators shall make 
 their determination in writing in duplicate, one to be delivered 
 to the Commission and the other to the Lessee. In case any 
 vacancy shall at any time occur by reason of the death, resigna- 
 tion or inability to serve of any arbitrator, his successor shall be 
 nominated in the same manner and within the same times (during 
 which times liie other periods of time prescribed for or in the 
 course of the arbitration shall be suspended) as above provided 
 for in ease of the original nomination of such arbitrator and in 
 
300 APPENDICES 
 
 case the successor arbitrator shall not be nominated within such 
 times the remaining arbitrator or arbitrators shall be the sole 
 arbitrator or arbitrators. Any determination by a majority of the 
 arbitrators shall be final and conclusive. Every such arbitrator 
 shall be deemed to be employed both by the City and the Lessee. 
 The fees and expenses of the arbitrators (including necessary 
 expenses for stenographic and clerical services) and the ex- 
 penses of the parties shall be assessed as the arbitrators consider 
 equitable and as they direct in their award, but such assess- 
 ments so made shall not be charged to cost of construction, cost 
 of equipment or to operating expenses. Every such arbitrator 
 shall, before proceeding to consider the matter, be sworn as 
 nearly as may be in the same manner as referees in actions at 
 law are required to be sworn. 
 
 Provided, however, that if in any case, or for any reason an 
 arbitration cannot validly be had as aforesaid, then the City or 
 the Lessee, if in no way responsible for the failure of the arbi- 
 tration, may bring such action, suit or proceeding as either of 
 them may be advised for the purpose of determining any of the 
 matters for which an arbitration is herein provided. 
 
 APPENDIX E 
 
 AEBITEATION PEOVISIONS OF UNITED STATES SHIPPING 
 BOAED CHAETEE 
 
 Bare Boat Fobm 
 
 Arbitration — ^Thirteenth — ^Any dispute of law or fact arising 
 under this "Bare Boat Form," except as to the rate of hire and 
 the compensation for actual or constructive total loss of the 
 vessel and except as to matters expressly left to be decided by 
 the United States Shipping Board, shall be referred to the arbi- 
 tration of three persons, one appointed by the owner, one by the 
 United States, and the third by the two so chosen. They may 
 proceed in any manner determined by themselves, and their de- 
 cision, or that of any two of them, shall be final, and for the 
 purpose of enforcing any award hereunder the agreement may 
 be made a rule of court. Such arbitration shall be a oonditioa 
 precedent to the commencement of any action. 
 
APPENDICES 301 
 
 APPENDIX F 
 
 RULES OF THE MUNICIPAL COURT OF CHICAGO 
 GOVERNING ARBITRATIONS 
 
 RULE 22 of The Municipal Court of Chicago. "Upon the filing in this court of any 
 instrument of submission to arbitration of any controversy existing between the parties 
 theretp, with the written consent of the parties to such fihng, the court shall take juris- 
 diction of the parties and subject-matter of such submission without the filing of any 
 praecipe, statement of claim, statement of set-off, affidavit of claim, answer, affidavit of 
 merits or other pleading. From time to time during the pending of such suit, either be- 
 fore or after award, any party or arbitrator may submit to the court any matter of law 
 arising in the proceedings before the arbitrators or on the award, and the court shall 
 thereupon give such directions or enter such order affecting matters of law as shall 
 appear to be in accordance with law." 
 
 LAW OF 1917 ON ARBITRATION AND AWARDS. The Arbitration and Awards 
 Act of 1917 is stated below in abstract form, except where quotation marks show exact 
 copies of the law: 
 
 Sec. I. One or more arbitrators may be appointed to hear any existing controversy. 
 
 Sec. 2. Contract of submission may designate the number of arbitrators, one or more, 
 as the parties shall agree, the manner in which they may be appointed and vacancies 
 filled, the time and place of hearing and rules for the hearmg of the controversy. "The 
 parties to such submission may include by reference in said written submission the pub- 
 lished rules of any organization or association, which rules shall thereby become a part 
 of the contract of submission." 
 
 Sec. 3. "A submission to arbitration shall, unless a contrary intention is expressed 
 therein, be irrevocable." 
 
 Sec. 4. Arbitrators to administer oaths, subpoena witnesses, subpoenas to be served 
 by officer or other person. 
 
 Sec. S- May take depositions. 
 
 Sec. 6. "The arbitrators may, of their own motion and shall by request of a party: 
 
 (a) At any stage of the proceedings submit any question of law arising in the course of 
 the reference for the opinion of the court stating the facts upon which the question arises 
 and such opinion when given shall bind the arbitrators in the making of their award. 
 
 (b) State their final award as to the whole or a part of the reference in the form of a 
 conclusion of fact for the opinion of the court on the questions of law arising and such 
 opinion shall finally conclude the proceeding, except as by this Act otherwise provided." 
 
 Sec. ?• "The award of the arbitrators, or a majority of them, shall be drawn up in 
 writing and signed by the arbitrators or a majority of them; the award shall definitely 
 deal With all matters of difference in the submission requiring settlement, but the arbi- 
 trators may, in their discretion, make a partial award or awards, which shall be enforce- 
 able in the same manner as the final award; upon the making of such award, the arbitra- 
 tors shall deliver a true copy thereof to each of the parties thereto without delay. '* . 
 
 Sec. S. Award may be filed in court within one year. 
 
 Sec. 9. "The party filing such award may, by giving ten days' notice of his intention 
 to the opposite party, and if no legal exceptions are taken to such award, have judgment 
 thereon, as on the verdict of a jury ; upoa any legal exceptions taken, the findings of fact 
 by the arbiti^ators shall be conclusive; successive judgments in the same case may be 
 entered on successive awards of the arbitrators on the subject matter of the submission 
 together with the costs of arbitration and the court, and execution may issue as in other 
 
 Sec. 10. Court may compel performance of award. 
 
 Sec, II. Award may be set aside for error in law or for fraud, corruption or other 
 undue means, or because arbitrators misbehaved. 
 
 Sec. 12. Award may be modified or corrected if award is upon matters not submitted. 
 
 Sec. 13. Applications to set aside award must be made before final judgment. 
 
 Sec. 14. Wnts of error and appeals may be taken from any decision of the court on 
 questions of law as in other cases. 
 
 Sec. IS. "The parties rnay, in the submission, agree upon the amount of compensa- 
 tion to be paid to the arbitrators and the terms of the payment of the same; tmless so 
 agreed, each arbitrator shall be allowed, for every day s attendance to the business of 
 his appointment $3 • 00, to be paid in the first instance by the party in whose favor the 
 award shall be made, but to be recovered of the other party with the other costs of suits, 
 if the award or final decision shall entitle the prevailing party to recover costs. Sheriffs, 
 Constables, the Bailiff of The Municipal Court of Chicago, clerks and justices of the 
 peace shall be entitled to the same fees for services performed in relation to any arbitra- 
 tion, as shall be allowed by law for the like services in their respective courts. " 
 
 Sec. 16. Court may compel arbitrators to proceed to hearing and make report with- 
 out unnecessary delay. 
 
 Sec. 17. The word "court" used in the Act means the court named in the submission 
 or if no courtbe named, any court having jurisdiction. 
 
 " 'Submission' means a written agreement to submit differences to arbitration, 
 whether such differences be in whole or in part in suit or riot in suit. 'J 
 
 Sec. 18. Old Arbitration act repealed. 
 
202 APPENDICES 
 
 APPENDIX G 
 
 FOEM OF SUBMISSION TO ARBITRATION USED IN THE 
 MUNICIPAL COURT OF CHICAGO 
 
 THE MUNICIPAL COURT Submission to Arbitration 
 
 ®^ cT:S OF CM^GO ^^' } ^' •^" ^*' Municipal Court of Chicago 
 
 and \ Submission to Arbitration. No 
 
 WHEREAS, a controversy exists between and 
 
 , parties to this instrument, which briefly stated is as follows: 
 
 NOW, THEREFORE, this agreement, made this day of A.D. 
 
 191 ... by and between and ' 
 
 WITNESSETH: That the parties hereto submit the above mentioned controversy 
 to arbitration, and to that end they appoint arbitrator as follows: 
 
 Said arbitrator shall, after having taken the oath as arbitrator in the form attached to 
 this instrument, proceed with all convenient speed to hear the allegations, evidence and 
 argxmients of the respective parties hereto. Said arbitrator shall conduct proceeding in 
 all things pursuant to the laws of the State of Illinois and the practice of The Municipal 
 Court of Chicago, Rule 22 of said court being hereby, by reference, included in th^ sub- 
 mission and made a part hereof. 
 
 It is further agreed that this instrum^it of submission to arbitration may be filed in 
 The Municipal Court of Chicago either by the arbitrator of his own motion or by one of 
 the parties to this instnunent, notice thereof being given to all parties to this submission 
 and to said arbitrator, and such filing in said Municipal Court of Chicago shall be deemed 
 a filing with the written consent of the parties to this submission in accordance with law 
 and the practice of said court, and the court shall thereupon take jurisdiction of the 
 parties and subject-matter of this submission without written pleadings, in accordance 
 with the practice of said court. 
 
 It is further agreed that a judgment or successive judgments of said Municipal Court 
 shall be rendered upon any award or awards made pursuant to this submission. 
 
 It is further agreed that the compensation of said arbitrator shall be as follows: 
 
 Said compensation shall be'taxed as costs and made a part of said judgment in 
 favor of the successful party and against the unsuccessful party. 
 
 IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals 
 the day and year first above written. 
 
 [SealI 
 
 [Seal! 
 
 (corporations must attach their corporate seals) 
 
 OATH OP ARBITRATOR 
 
 [ss. 
 
 STATE OF ILLINOIS, 
 County of Cook, 
 City of Chicago, 
 
 I who have been appointed arbitrator 
 
 by the above instrument of submission to arbitration, being duly sworn on oath say 
 that I will faithfully and fairly hear, examine and determine the cause and controversy 
 mentioned in the foregoing instrument of submission to arbitration, according to the 
 principles of equity and justice, and make a just and true award according to the best 
 of my understanding. 
 Subscribed and Sworn to before me this day of 1 
 
 , A.D. X9X. 
 
 n- 
 
APPENDICES 303 
 
 APPENDIX H 
 
 LIST OF TRADE OEGANIZATIONS IN CHICAGO AGREEING 
 TO PROMOTE TRADE ARBITRATIONS 
 
 Chicago Stock Exchange. 
 Chicago Board of Trade. 
 Chicago Butter and Egg Board. 
 The Chicago Masons' and Builders' Association. 
 Chicago Master Steam Titters' Association. 
 The Independent Oil Men's Association. 
 The International Stamp Manufacturing Association. 
 The Lumbermen's Association of Chicago. 
 National Association of Chair Manufacturers. 
 National Association of Steel Furniture Manufacturers. 
 The Illinois Lumber and Builders' Supply Dealers' Association. 
 Chicago Bottlers' Clearing House Association. 
 Chicago Jewelers' Association. 
 Chicago Master Plumbers' Association. 
 The Illinois Bankers' Association. 
 
 The International Association of Manufacturing Photo Engrav- 
 ers. 
 
 Live Poultry and Dairy Shippers' Traffic Association. 
 
 Manufacturers and Dealers' Association. 
 
 National Association of Employing Lithographers. 
 
 National Association of Tanners. 
 
 National Metal Trades Association. 
 
 The Central Supply Association. < 
 
 Northwest Ladies' Garment Manufacturers' Association. 
 
 The Wholesale Clothiers' Association. 
 
 American Association of Creamery Butter Manufacturers. 
 
 Association of American Portland Cement Manufacturers, 
 
 American Garage and Auto Dealers. 
 
 Chicago Bar Association. 
 
 American Washing Machine Manufacturers Association. 
 
 Bridge Builders' Society. 
 
 Buildiug Managers' Association. 
 
 National Poultry, Butter and Egg Association. 
 
 The Pattern Makers' Association of Chicago. 
 
304 APPENDICES 
 
 Printing Trades Credit Association. 
 American Association of Engineers. 
 The Carpenter Contractors' Association of Chicago. 
 Chicago Association of Commerce. 
 Industrial Club of Chicago. 
 BuUding Construction Employers' Association. 
 Chicago Building Trades Council. 
 California Vegetable Union. 
 Chicago Coal Merchants' Association. 
 Chicago Landlords' Agency. 
 Chicago Produce Trade and Credit Association. 
 Credit Bureau Millinery Jobbers' Association. 
 Employing Plasterers Contractors' Association of Chicago. 
 Hickory Products Association. 
 Illinois Society of Architects. 
 International Association of Rotary Clubs. 
 Landlords' Association. 
 
 Chicago Contracting Team Owners' Association. 
 Chicago Furniture Manufacturing Association. 
 Chicago Laundrymen's Association. 
 Chicago Retail Druggists Association. 
 Employing Electrotypers' Association. 
 Fibre Shipping Container Association. 
 Illinois Manufacturers' Association. 
 Illinois and Wisconsin Retail Coal Dealers' Association. 
 Investment Bankers Association of America. 
 Chicago Retailers' Association. 
 Manganese Steel Founders' Society. 
 Maple Flooring Manufacturers' Association. 
 Master Roofers' Association of Chicago. 
 Milk Producers' Association. 
 Motor Truck Owners' Association. 
 
 National Association of Advertising Specialty Manufactur- 
 ers. 
 National Association of Retail Druggists. 
 National Hardwood Lumber Association. 
 Retail Merchants' Association. 
 Western Society of Engineers. 
 Manufacturers and Importers' Association of America. 
 
APPENDICES SOS 
 
 Master Car Builders' Association. 
 
 Middle States Wrapping Paper Association. 
 
 Millers National Federation. 
 
 National Association of Master Bakers. 
 
 National Association of Upholstered Furniture Manufactur- 
 ers. 
 
 National Confectioners' Association. 
 
 National Founders' Association. 
 
 National Implement and Vehicle Association. 
 
 Shippers' Traffic Association. 
 
 Chicago Face Brick Association. 
 
 Chicago Building Material Credit Bureau, 
 
 National Retail Grocers' Association. 
 
 Chicago Association of Credit Men. 
 
 Chicago District Ice Association. 
 
 Chicago Paint, Oil and Varnish Association. 
 
 Retail Hardware Dealers' Association. 
 
 Chicago Butchers and Grocers' Association. 
 
 Illinois Manufacturers' Association. 
 
 Wholesale Florists' Credit Association. 
 
 Paint, Oil and Varnish Club of Chicago. 
 
 Director of Publicity for National Association of Retail Drug- 
 gists. 
 
 Director of Publicity for Chicago Masons and Builders' Asso- 
 ciation. 
 
 American Association of Engineers. 
 
 APPENDIX I 
 
 RULES POE AEBITEATION NOW IN OPEEATION IN THE 
 MUNICIPAL COURT OF THE CITY OF NEW YOEK 
 
 Pursuant to sub-division six of section six and suh-division six 
 of section eight of the Municipal Court Code, the Board of 
 Justices of the Municipal Court of the City of New York, hereby 
 establish a system of arbitration and adopt the following rules: 
 
306 APPENDICES 
 
 Bvle I 
 
 The parties to any controversy, except infants and incom- 
 petents, may submit the same for arbitration to a Justice of this 
 Court or to any other person upon whom they shall agree. 
 
 Rule II 
 
 The persons desiring an arbitration shall sign a consent which 
 shall contain the name of the arbitrator, a brief recital of the 
 nature of the controversy to be determined and a statement that 
 they will abide by these rules. The consent must be filed with 
 the clerk of one of the districts, which district shall be the proper 
 district for all further proceedings, and a copy thereof shall be 
 given by the parties to the arbitrator. 
 
 Bule III 
 
 The arbitrator shall forthwith proceed to hear the contro- 
 versy. He shall not be bound by the rules of evidence, but may 
 receive such evidence as seems to him equitable and proper. 
 Either party may be represented by counsel, but no record of 
 the proceedings before the arbitrator shall be kept. No expense 
 shall be incurred by him except upon the consent in writing of 
 the parties. 
 
 Bule IV 
 
 After the first hearing neither party may withdraw from the 
 arbitration unless both parties consent to, or the arbitrator di- 
 rects a discontinuance of the proceeding. 
 
 Bule V 
 
 The arbitrator shall make his award in writing and file the 
 same forthwith, together with his opinion, if any, with the clerk 
 of the proper district. Unless both parties file a request ia 
 writing not to enter judgment, the clerk shall within two days 
 after the filing of the award enter judgment in accordance there- 
 with, provided the award has been filed within thirty days from 
 the date of filing the consent. The time within which the clerk 
 
APPENDICES 307 
 
 shall enter judgment may be extended by a stipulation in writing 
 for a further period of not to exceed thirty days. 
 
 Rule VI 
 
 The clerk in each district shall keep a docket wherein proper 
 entries of all proceedings shall be made. 
 
 Bule VII 
 
 No fees or disbursements of any kind shall be demanded or 
 received, except as hereinabove provided. 
 
 FORMS 
 
 The consent, award and judgment must be in substantially 
 the following form, the blanks being properly filled : 
 
 Consent 
 
 Municipal Court of the City of New York. 
 
 Borough of District. 
 
 We, residing at 
 
 and residing at 
 
 hereby designate 
 
 as arbitrator to hear and determine the following controversy 
 existing between us, viz.: 
 
 We agree that the arbitrator proceed in accordance with the 
 rules of the Municipal Court of the City of New York and do 
 hereby declare that we know said rules and that we will abide 
 by them. 
 
 Dated 191 
 
308 APPENDICES 
 
 Award 
 
 I, , the arbitrator appointed 
 
 pursuant to a consent signed by and 
 
 and filed in the 
 
 ofRce of the Clerk of the Municipal Court for the 
 
 District, Borough of , on the 
 
 day of , 191. . . ., to hear and determine 
 
 the controversy therein specified, hereby certify that I have 
 heard the parties to said controversy and the evidence submit- 
 ted by them and find and decide that 
 
 Dated, Nevsf York, 191 
 
 Arbitrator. 
 
 Judgment 
 
 Upon the consent filed on the day of 
 
 191 , and the award of arbitrator, 
 
 filed on the day of 191 , judgment is 
 
 entered ^ in favor of against 
 
 for the sum of 
 
 Dollars ($ ). 
 
 Dated 191 
 
 Clerk. 
 1 Or insert such other judgment in accordance with the award. 
 
BIBLIOGRAPHY 
 
 General 
 
 Aristotle: The rhetoric of Aristotle; a translation by Sir 
 
 Richard C. Jebb, edited by J. E. Sandys. Cambridge : Univ. 
 
 Press, 1909. 207 p. 24, 25. 
 
 Cyclopedia of Law and Procedure. Popular ed. William Mack, 
 
 editor in chief. New York: The Amer. Law B'k Co., 1909-12. 
 
 12 V. 93. 
 
 The Encyclopedia Britannica; a dictionary of arts, sciences, 
 
 literature and general information. 11th ed. Cambridge: 
 
 Univ. Press, 1911. 29 v. 
 
 37, 84, 102, 119, 132, 135, 137, 154, 184, 210, 212. 
 Harvard Law Review. Cambridge: Harvard Law Rev. Assoc. 
 
 13. 
 The Holt Bible, containing the Old and New Testaments. 
 
 Oxford : Univ. Press, 1833. 1271 p. 280. 
 
 London Law Journal. V. 44, Feb. 20, 1909. 12. 
 
 London Times : editorial, May 8, 1891. 8. 
 
 New York Law Journal. New York: 1888. 125. 
 
 New York State Bar Association: Proceedings of the 40th 
 
 annual meeting, 1917, and reports for 1916. Albany: The 
 
 Argus Co., 1917. 879 p. 234. 
 
 Penny Cyclopedia. London : C. Knight, 1833-43. 
 
 27 V. in 14. 24, 28, 29. 
 Yale Law Journal. New Haven, Conn., 1890. 40. 
 
 Agency 
 
 Story, Joseph : Commentaries on the law of agency, as a 
 branch of commercial and maritime jurisprudence. Boston: 
 Little & Brown, 1839. 544 p. 96. 
 
 309 
 
310 BIBLIOGRAPHY 
 
 Arbitration and Awards 
 
 Arbitration as a Condition Precedent. (Harvard Law Re- 
 view, Vol. II, Dec, 1888, p. 234.) 202, 226. 
 
 Bacon, Matthew: The Compleat Arbitrator; or, the law of 
 awards ... 3d ed., with precedents of submissions, awards 
 and pleadings in English . . . London, 1770. 281 p. 
 
 39, 93, 279. 
 
 Bell, John MontgomErie : Treatise on the law of arbitration 
 in Scotland. 2d ed. "With an appendix of forms. Edin- 
 burgh: T. & T. Clark, 1877. 460 p. 
 
 7, 25-28, 58, 59, 133, 166. 
 
 BujiiNG, S.: A practical treatise on the law of awards and 
 arbitrations, with forms of pleadings, etc. London: 1845. 
 
 37. 
 
 Chamber of Commerce, N. Y. S., Committee on Arbitration: 
 Eeport, 1917. 9. 
 
 Champlaib: L'ami de la Concorde; ou, Essai sur les motifs 
 d'eviter les proces, et sur les moyens d'en tarir la source. 
 Paris: Monory, 1779. 80 p. 31. 
 
 Chabmoltj, a. : La Justice gratuite et rapide par I'arbitrage 
 amiable. Paris: V. Giard et E. Briere, 1898. 128 p. (Pe- 
 tite encyclopedie sociale, ecooomique et financiere. v. 25.) 32. 
 
 Fletcher, Banister: Arbitrations: a text book for surveyors, 
 in tabulated form. 2d ed. London : B. T. Batsford, 1893. 
 119 p. 34. 
 
 GoUBEAU DE LA BiLLENNEBiE: Traite general de I'arbitrage en 
 matiSre civile et commerciale; ou, Recueil complet des regies 
 a suivre tant par les parties que par les arbitres. Tome 1-2. 
 Paris : Renard, 1829-34. 2 v. 33. 
 
 Hopkins, Manley: A handbook of Average, for the use of 
 agents, merchants, ship-owners, masters and others: with a 
 chapter on arbitration, recent decisions in the courts bear- 
 ing on these subjects. 2d ed. London: Smith, Elder & 
 Co., 1859. 34. 
 
 Irons, J. C, and R. D. Melville : Treatise on Law of Arbitra- 
 tion in Scotland; with an appendix of forms and excerpts 
 from statutes relating to arbitration. Edinburgh : W. Green 
 and Son, 1903. 38. 
 
BIBLIOGRAPHY 311 
 
 Ktd, Stewaet: A treatise on the law of awards. Dublin: 
 Printed by J. Stockdale, etc. 1791. 251 p. 
 
 29, 30, 31, 93, 94, 105, 107, 114, 280. 
 
 March, John: Actions for slander or a methodical collection 
 under certain grounds and heads, of what words are action- 
 able in the law, and what not. To which is added, awards or 
 arbitraments methodised under severall grounds and heads, 
 etc. London: 1647. n.p. 
 
 53, 54, 55, 56, 57, 93, 99, 106, 116, 117. 
 
 Morse, J. T., Jr. : The Law of arbitration and award. Boston : 
 1872. 38, 93, 159. 
 
 Parker, J. : Notes on the Law of Arbitration ... 2d ed. Edin- 
 burgh, 1845. 37. 
 
 EiGATiD, F. : Expertises et arbitrages. Paris: Gauthier-Villars, 
 [1902 ?] 177 p. (Encyclopedia scientiflque des aide-me- 
 moire. — [Sec. de I'ingenieur.] ) 34. 
 
 RosENBAUM, Samuel: A Report on Commercial Arbitration in 
 England, by Samuel Rosenbaum. . . . Oct., 1916. American 
 Judicature Soc. Bui. no. 12. [Chicago]. Chicago Legal News 
 Co., 1916. 3-72 p. 8,9,18-23,245,253. 
 
 Watsok, Sir W. H. : Treatise on the law of arbitrations and 
 awards. Philadelphia: 1836. (Law Lib. v. 11.) 93. 
 
 Wilson, John : A Short treatise on the law, relative to arbitra- 
 tion. Containing adjudged cases . . . Hull: printed for the 
 pub., 1792. 255 p. 93. 
 
 Wood, J. P., and J. R. N. Macphail: The Law of Arbitration 
 in Scotland. Edinburgh: Bell & Bradfute, 1900. 37. 
 
 Assumpsit 
 
 Ames, J. B. : The history of assumpsit. (Select Essays in Anglo- 
 American History. V. 3, p. 257-303. Boston: Little, 
 Brown & Co., 1909.) 66, 67, 68. 
 
 Bailments 
 
 Jones, Sir William: Essay on the law of bailments. 4th ed., 
 with notes by W. Theobald. London: 1833. 137. 
 
312 BIBLIOGRAPHY 
 
 Bar 
 
 KoOT, Et.thu : The layman's criticism of the lawyer. (Report 
 of American Bar Assoc. Vol. 39, p. 386-402. Baltimore: 
 The Lord Baltimore Press, 1914.) 2. 
 
 Biography 
 
 Campbell, John: Lives of the Chief Justices of England. 3d 
 ed. 4 V. London : J. Murray, 1874. 71, 72, 75. 
 
 Foss, Edwabd: The Judges of England, with sketches of their 
 lives. London: 1848. 9 v. 
 
 123, 134, 135, 136, 142, 143, 255, 256. 
 
 Commercial Law 
 
 Boucher, P. B. : Consolato del mare, ou, Pandectes du droit 
 commercial et maritime . . . d'apres I'edition originale de 
 Bareelonne, de I'an 1494. Paris: Chez A. Bertrand, 1808. 
 2 V. 26. 
 
 HoLDSWOETH, W. S. : The Law Merchant. (Select Essays in 
 Anglo-American Legal History. V. 1, p. 289-331. Boston: 
 Little, Brown & Co., 1907.) ' 83. 
 
 ScRTTTTON, T. E. : General survey of the history of the law mer- 
 chant. (Select Essays in Anglo-American Legal History. 
 V. 3, p. 7-15. Boston : Little, Brown & Co., 1909.) 
 
 72, 73, 74. 
 
 Smmh, J. W. : A compendium of mercantile law . . . 10th ed. 
 edited by J. Macdonell . . . and G. Humphreys . . . Lon- 
 don: Stevens & Sons, Ltd. 1890. 2 v. 
 
 3, 4, 71, 75, 76, 81, 82. 
 
 Contracts 
 
 Greenhood, E. : The doctrine of public policy in the law of con- 
 tracts . . . Chicago: Callaghan & Co., 1886. 860 p. 14. 
 
 Page, W. H. : The law of contracts. Cincinnati: The W. H. 
 Anderson Co., 1905. 60, 70. 
 
 Parsons, T. : The law of contracts. 4th ed. Boston: Little, 
 Brown & Co., 1860. 2 v. 14, 15. 
 
BIBLIOGRAPHY SIS 
 
 Pollock: Principles of Contract at Law and Equity. 6th ed. 
 
 760 p. London : Stevens & Sons, 1894. 67. 
 
 Slatmakoe, Q. B. : The Legality of contracts affecting the jviris- 
 
 diction of Courts. (Central Law Jour. Vol. 58, p. 64.) 17. 
 
 Courts 
 
 Civil Judicial Statistics 1912. (Parliamentary Papers, Cd. 
 7267.) London : Wyman & Sons, Ltd., 1914. 156 p. 22. 
 
 Eansom, William L. : The Organization of the Courts for better 
 administration of justice. (Cornell Law Quarterly. P. 186- 
 261, 264-265. Ithaca, 1917.) 
 
 Story, Joseph: Commentaries on equity jurisprudence, as ad- 
 ministered in England and America. 13th ed. by Melville 
 M. Bigelow . . . Boston: Little, Brown & Co., 1886. 2 v. 
 
 149, 237. 
 
 ZoucHB, EiCHARD : The jurisdiction of the Admiralty of England 
 asserted against Sr. Edward Coke's Artieule admiralitatis 
 in XXII Chapter of his Jurisdiction of courts. London: 
 Printed for F. Tyton, & T. Bring, 1663. 152 p. 72. 
 
 Dejjmark and Norway 
 
 Catteau Callvillb : Tableau des fitats danois envisages sous les 
 Kapports du Mecanisme Social. Paris: 102. 3v. 29. 
 
 England 
 
 Domesday Book : or, the great Survey of England of William the 
 Conqueror, A. D. MLXXXVI. Photo-Zincographed by her 
 Majesty's command, at the Ordnance Survey Office, South- 
 ampton : Colonel Sir H. James, director. Lat. 35 Pts. 7. 
 
 Gilds 
 
 Gross, Charles: The gild merchant; a contribution to British 
 municipal history. Oxford: Clarendon Press, 1890. 2 v. 
 
 4,5. 
 India 
 
 Hodgson, B. H. : Miscellaneous essays relating to Indian sub- 
 jects . . . London : Triibner & Co., 1880. 2 v. 36. 
 
314 BIBLIOGRAPHY 
 
 Insurance 
 Park: A system of the law of Marine Insurances . . . 8th ed. 
 with considerable additions, by F. Hildyard. London: 1842. 
 2 V. 72. 
 
 Japan 
 
 Brinklet, Frank : Japan, its history, arts and literature. Bos- 
 ton: J. B. Millet Co. [cop. 1901-02.] 9 v. (Oriental Se- 
 ries. V 1-8.) 36. 
 Law 
 
 Abbot, Everett V.: Justice and the modem law. Boston: 
 Houghton Mifflin Co., 1913. 299 p. 124. 
 
 Blackstone, William: Commentaries on the laws of England. 
 8th ed. Oxford: Clarendon Press, 1778. 4 v. 65, 73. 
 
 BowEN, C. S. Christopher: Progress in the Administration of 
 Justice during the Victorian Period. (Select Essays in An- 
 glo-American Legal History. Vol. 1, p. 516-557. Boston: 
 Little, Brown & Co., 1907.) 40. 
 
 Brookes Abridgements. Brook, Sir Eobert: La graunde 
 abridgement . . . 1586. 2 v. in 1. n.t.p. 99, 106, 107, 117. 
 
 Carter, A. T. : A history of English legal institutions, 4th ed. 
 London : Butterworth & Co., 1910. 304 p. 
 
 2, 5, 7, 71, 77, 78, 79, 80, 81, 137. 
 
 Coke, Sir Edward : The Eeports of Sir E. C. New edition with 
 notes and references by I. H. Thomas and I. F. Eraser. 6 
 V. London: 1826-27. 85, 86, 87. 
 
 Evans, W. D. : Collection of statutes. 3d ed. By A. Hammond 
 and T. C. Granger. 10 v. London : 1836. 149. 
 
 FiTZHERBERT, Anthony : Graund Abridgement Collect, In Aedi- 
 bus Eichardi Tottell duodecimo Nouembris, 1565. Cum priu- 
 ilegio. 99, 106. 
 
 Glanville, Eantjub" de: Tractatvs de legibus & eonsuetudinibus 
 regni AngUae, tempore regis Henriei Secundi eompositus, 
 iusticial gubemacula tenente illustri, Et illas solum leges con- 
 tinet & eonsuetudines secundum quas plaeitatur in Curia regis 
 ad scacearium & coram iusticijs vbicunque fuerint. [Londini] 
 in aedibus Thomae Wight, 1604. 116 numb. 67. 
 
 Hall, E. S. : Law and Logic. (Illinois Law Review, Vol. XII, 
 
BIBLIOGRAPHY SI 5 
 
 No. 1, p. 14. May, 1917. Chicago : The Northwestern Univ. 
 Law Pub. Assoc.) 50. 
 
 HoLDSWORTH, W. S. : A history of English law. London: 
 Methuen & Co., 1903. 259. 
 
 Holmes, 0. "W., Jr. : The Common law. Boston : Little, Brown 
 & Co., 1881. 422 p. 41, 66, 108, 109. 
 
 Kent, James: Commentaries on American law. 13th ed. Bos- 
 ton: Little, Brown & Co., 1884. 4 v. 42,47. 
 
 Pollock, Sir Frederick, and F. W. Maitland: The History of 
 English law before the time of Edward I. (2nd ed.) Cam- 
 bridge: Univ. Press, 1903. 2 v. 60, 61, 69, 84, 85. 
 
 Reeves, John: Eeeves' History of the English law, from the 
 time of the Romans to the end of the reign of Elizabeth 
 [1603]. A new American ed. Philadelphia: M. Murphy, 
 1880. 5 v. 254, 255. 
 
 Scott, H. W. : The evolution of law, a historical review from 
 the earliest known history of mankind to the present era. 
 4th ed. New York: The Borden Press Publishing Co., 1908. 
 25-165 p. 280. 
 
 Select Essays in Anglo-American Legal History by various 
 authors. Compiled and edited by a Committee of the As- 
 sociation of American Law Schools. Boston : Little, Brown 
 & Co., 1907. 3 V. 137. 
 
 SoULE, C. C. : The lawyer's reference manual of law books and 
 citations. 2d thousand. Boston : C. C. Soule, 1884. 497 p. 
 
 87, 136. 
 
 Statham's Abridgment of the Law. Translated by Margaret 
 C. Klingelsmith. Boston : Boston Book Co., 1915. 2 v. 
 
 84, 87, 99, 105, 106, 108. 
 
 ViNER, Charles: General Abridgment of law and equity, with 
 notes and references. Aldershot in Hampshire near Fam- 
 ham in Surrey. 1745. 23 v. 101, 128, 129. 
 
 Legal Maxims 
 
 Broom, Herbert: A selection of legal maxims, classified and 
 illustrated, 7th American, from the 6th London ed. Phila- 
 delphia : T. & J. W. Johnson & Co., 1874. 993 p. 40, 47. 
 
316 BIBLIOGRAPHY 
 
 MtnsriciPAii Courts 
 
 Latter, E. J. : The New Practice and Procedure in the Munici- 
 pal Court of the City of New York. New York: Baker, 
 Voorhis & Co., 1916. 1069 p. 5, 7. 
 
 Negotiablb Instruments 
 
 Chalmers, Sir Mackenzie D. E. S.: A digest of the law of 
 bills of exchange, promissory notes and cheques, and nego- 
 tiable securities. 6th ed. London: Stevens & Sans, Ltd., 
 1903. 440 p. 72. 
 
 Cranch, W. : Promissory Notes before and after Lord Holt. 
 (Select Essays in Anglo- American Legal History. V. 3, 
 p. 72-97. Boston: Little, Brown & Co., 1909.) 138,139. 
 
 Persia 
 
 CuRZON, Q. N. : Persia and the Persian question. London: 
 1892. 2 V. 35. 
 
 Reports 
 
 Bracton's Note Book. A collection of cases decided in the 
 King's Courts during the reign of Henry the Third, an- 
 notated. Edited by F. W. Maitland. 3 v. Cambridge: 
 [printed], 1887. 67, 73, 103, 104. 
 
 Cart, R. : Le necessarie use and fruit de les pleadings, conteine 
 en'le lieur de le tres reverend Edward Coke. Londini: In 
 aedibus Thomse Wight, an Dom. 1601. Cum privilegis. 
 
 149. 
 
 Corpus Juris; being a complete and systematic statement of the 
 whole body of the law as embodied in and developed by all 
 reported decisions, edited by Wm. Mack & W. B. Hale. 
 New York: Amer. Law Book Co., 1916. 15 v. 15. 
 
 Keltng, Sir John: Report of Divers cases in pleas of the 
 crown, adjudged and determined in the reign of the late 
 King Charles II with directions for justices of the peace. 
 Dublin: P. Byrne, 1789. 151 p. 101. 
 
 Law Times Reports. London: 1871-etc. 22, 29. 
 
 Modern Reports, or select cases adjudged in the courts of 
 
BIBLIOGRAPHY 317 
 
 Kings Bench, Chancery, Common-Pleas, and Exchequer, 
 since the Restauration of His Majesty King Charles II. 
 London: T. Basset, 1682. 314 p. 139. 
 
 EoLLE, Henry: Un Abridgment des plusieurs Cases et resolu- 
 tions del common Ley, - ovesque un table des general titles 
 contenus en ceo. London : 1668. 2 v. 128. 
 
 Selden Society: Select pleas in manorial and other seignorial 
 Courts, edited by F. W. Maitland. London: Bernard 
 Quaritch, 1889. (Vol. 1. Reigns of Henry III and Ed- 
 ward I.) 214 p. 3. 
 
 The Solicitor's Journal and Reporter. London: 1857, etc. 
 
 22. 
 
 Veeder, Van Vechten: The English Reports 1537-1865. (Se- 
 lect Essays in Anglo-American Legal History. V. 2, p. 123- 
 168. Boston: Little, Brown & Co., 1908.) 
 
 121, 122, 137, 138, 139, 140, 141. 
 
 Year Books 
 
 Ames Foundation Year Book: Year Book of Richard II 
 . . . ed. for the Ames Foundation by Geo. F. Deiser . . . 
 Cambridge: Harvard Univ. Press, 1914. 112. 
 
 HoLDSWORTH, W. S. : The Year Book. (Select Essays in Anglo- 
 American Legal History. V. 2, p. 96-122. Boston: Little, 
 Brown & Co., 1908.) 118, 119. 
 
 Year Books of the Reign of Kino Edward the First — ^years 
 XX and XXI. Edited and translated by Alfred J. Hor- 
 wood. London : Long-mans, Green, 1866. 509 p. 118. 
 
 Lbs Reports des Cases argue et adjudge in le temps del Rot 
 Edward le Second et auxy memoranda del Exchequer en 
 temps le Roy Edward le Primer. London: Atkyns, 1678. 
 685 p. and index. 119, 121. 
 
 Selden Society: Year Books of Edward II, edited by F. W. 
 Maitland. London: Bernard Quaritch, 1903. 9 v. 53. 
 
 Soule: Year Book Bibliography. (Harvard Law Review, Vol. 
 XIV, no. 8, Apr., 1901, p. 557-587.) 125. 
 
TABLE OF STATUTES 
 
 PAGES 
 
 English Arbitration Act, 1889. .196, 212-213, 220, 221, 223, 224 
 
 English Common Law Procedure Act 1854 196, 198, 199, 201 
 
 English Ordinance: R3niier's Foedera, i. 75 225 
 
 Statute— 13 Edw. 1, Chapter 24 62 
 
 20 Edw. Ill, Chapter 1 258 
 
 27 Edw. Ill, Statutes II, Ch. 21 77, 78 
 
 43 Eliz. c. 12 81 
 
 3 & 4 Wm. 4, e. 42 180, 190, 196 
 
 8 & 9 Wm. Ill 148, 149, 151 
 
 9 & 10 Wm. 3, c. 15 126, 191, 
 
 France : Code de Procedure Civil (modem) 27 
 
 France: Koyal Ordonnance (1673), Title IV, Art. 9 27 
 
 Illinois Law of Arbitration, June 11, 1917 294-298 
 
 New York State. Code of Civil Procedure, Chapter 17, 
 
 Title VIII 249, 292-294 
 
 Laws 1909, Ch. 45, Sec. 44, as amended 
 
 by L. 1914, Ch. 507 43 
 
 Laws 1874, e. 278 6 
 
 1875, c. 495, sec. 6 6 
 
 1878, e. 252 6 
 
 Scotland Law of Arbitration 28 
 
 Railway Clauses Consolidation Act, 1845 191 
 
 United States. Comp. Stat. 1916, See. 10165, Sec. 10295. 46 
 
 Rev. Stat. See. 5392 46 
 
 35 Stat, at L. 1088, Chap. 321 ,. 46 
 
TABLE OF CASES 
 
 PAGES 
 
 Adinolfi V. Hazlett, 242 Pa. 25, 88 Atl. 869 13 
 
 Agar V. Macklew, 2 Sim. & Stu. 423 158 
 
 Ames V. New York Union Ins. Co., 14 N. Y. 253, 262 17 
 
 Anderson v. Erie R. R. Co., 171 App. Div. 687 18 
 
 Aston V. George (1819), 2 B. & Aid. 395 84, 126, 168, 
 
 183, 226, 227 
 
 Auriol V. Smith, Turn. 127 157 
 
 Austrian Lloyd Steamship Co. v. Gresham Life Assurance 
 
 Society, L. R. [1903] 7 K. B. D. 249, 72 L. J. (K. B) 
 
 211, 88 L. T. E. 6 17, 217, 220, 228, 245, 275 
 
 Awards, in matter of deliverance of, 3 Croke, 577-8 102 
 
 Baird ■;;. Baird, 145 N. Y. 659 70 
 
 Bank v. White, 220 Mo. 717, 736 16 
 
 Barlow v. Ocean Ins. Co., 4 Met. 270: 14 
 
 Belcher v. Eoedean School Site & Buildings Limited, 85 
 
 L. T. R. 468 (1901) 215, 228 
 
 Belfleld v. Bourne (1894), 8 R. 61 (1894), L. R. [1894] 1 
 
 Ch., 63 L. J. (Ch.) 104 215 
 
 Bennet v. Paine, 5 Watts 259 15 
 
 Benson v. Eastern Building and Loan Assoc, 174 N. Y. 
 
 83 237, 277 
 
 Benson v. United States, 146 U. S. 325, 36 L. ed. 991, 13 
 
 Sup. Ct. Rep. 60 46 
 
 Bertles v. Nunan, 92 N. Y. 152 (1883) 48 
 
 Bishop V. Bishop, 15 Car. 1, f. 59, 1641 134 
 
 Brakinrig v. Menzies, 4 Sess. Cases, 2nd Series, 274 166, 179 
 
 Braunstein v. Accidental Death Ins. Co., 101 Eng. Com. 
 
 Law R., 783, 1 Best & Smith 782, 50 N. Y. 250 184, 227, 
 
 228, 229, 231 
 
 Bremner v. Elder, 2 Sess. Cases (4th Ser.) 136 199, 227 
 
 Bridgman's Case, Hob. 11 82 
 
 Bright V. Gibson, 32 T. L. R. 533 223, 272 
 
 319 
 
TABLE OF CASES 
 
 PAGES 
 
 Broekleliurst & Potter Co. v. Marseh, 225 Mass. 3 277 
 
 Erode v. de Ripple (1375). 49 Ed. Ill, 8 & 9 124, 146, 
 
 147, 205, 226 
 
 Brown v. Overbury, 11 Exch. Rep. 715 178 
 
 Brown v. Sloan, 6 Watts 321 14 
 
 Browne v. Downing, 2 Rolle's Reports .143, 205, 206, 226 
 
 Burton v. Ellington, 3 Brown's Rep't. H. C. of Chancery. . 155 
 
 Calcraft v. Roebuck, 1 Vesey, Jr. 221 95 
 
 Caledonian Ins. Co. v. Grilmour, L. R. [1893] App. Cas. 
 
 85 209, 228 
 
 Caledonian Railway Co. v. Greenock and Wemyss Bay Rail- 
 way Co., 10 Sess. Cases (3rd Ser.) (1871-2), 892.... 191, 
 
 227, 264 
 
 Calvin, case of. 7 Rep. 4a 140 
 
 Calvin v. Provincial Insurance Co., 27 Up. Can. Q. B. 403 . . 15 
 
 Came v. Moye, 2 Sid. 121 82 
 
 Cameron v. Cuddy, L. R. [1914] A. C. 651 223, 228 
 
 The Cap Blanco, 83 L. J. (P.) 23 (1913) ; 109 L. T. R. 
 672; 29 T. L. R. 557. Evans, P. Appeal withdrawn. 
 
 . See 83 L. J. (P.) 23, C. A 220, 228 
 
 Contra a Carpenter. Y. B. 2 Hen. IV., 3 b. & 4 64 
 
 Christie v. Noble, L. R. 14 Ch. D. 203 202 
 
 Church-rate, in matter of. 1 Lofft's Rep. 426 129 
 
 Clapham v. Higham, 1 Bingham 87 127, 252 
 
 Clark V. Gamwell, 125 Mass. 428 15 
 
 Clark V. Hamburg-American Packet Co. (1913) (unpub- 
 lished) 249 
 
 Clemens v. American Eire Ins. Co., 70 App. Div. 435 17 
 
 Clerke v. Martin, Cranch: "Promissory Notes Before and 
 
 After Lord Holt" 138 
 
 Collins V. Locke, L. R. 4 App. Cas. 674 203, 227 
 
 Collins V. Oliver, 4 Humph. (Tenn.) 439 57 
 
 Couldery v. Bartrum, 19 Ch. Div. 399 138 
 
 Curtis V. Gokey, 68 N. Y. 300 235 
 
 Daley v. People's Building, Loan & Saving Assoc., 178 
 
 Mass. 13 273, 276 
 
 Davila v. Abnanza, 1 Salk. 73 145, 197 
 
 Davis V. Getty, Sim. & Stu. 414 157 
 
TABLE OF CASES 321 
 
 PAGES 
 
 Davis V. Starr, 60 Lit. R. 797; L. E. 41 Ch. D. 242 198, 
 
 215, 227 
 
 Dawson v. Fitzgerald, L. R. 1 Exeh. D. 257 193, 195, 212, 
 
 227, 245, 277 
 
 Dawson v. Sadler, 1 Sim. & Stu. 541 157 
 
 Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 50 
 
 N. Y. 250 (Welch v. Probst 151 App. Div. 147. 1912). 13, 
 15, 70, 228, 232, 235, 238, 244, 249 
 Dike V. Erie Railway Co., 41 N. Y. 113, 116; 45 N. Y. 
 
 113, 116 16, 241 
 
 Dimsdale v. Robertson, 2 Jones & La Touche's Reports 58. 157, 
 166, 169, 175, 190, 197, 205, 206, 222, 227, 233, 239, 243 
 Doleman & Sons v. Ossett Corporation, L. R. [1912] 3 K. 
 
 B. D. 256, 257 151, 221 
 
 Doyle V. Continental Insur. Co., 94 U. S. 535, 24 L. Ed. 148 244 
 Drew V. Drew, 2 Macqueen's Cases on Appeal (Scotch, 
 
 1855) 59, 180, 190, 227 
 
 Edwards v. The Aberayron Mutual Ship Insurance Society 
 
 (Limited), L. R. 1 Q. B. D. 563, 34 L. T. R. 457 192, 
 
 195, 211, 214, 219, 221, 227, 277 
 
 Egerton v. Brownlow, 4 H. L. C. 1 14, 177 
 
 Eichner v. Bowery Bank, 24 App. Div. 63 45 
 
 Eliot National Bank v. Beal, 141 Mass. 566 273 
 
 Elliott V. Royal Exchange Assurance Co., L. R. 2 Exch. 
 
 237 189, 193, 195, 227 
 
 Engel V. Shubert Co., N. Y. Supreme Court, App. Div., 1st 
 
 Department, 166 App. Div. 394, V. 3071 Bar Assoc. 
 
 Reports 17, 278 
 
 Erie R. R. Co. v. Stone, 37 Sup. Ct. Rep. 633 17 
 
 Exparte Lucy, 21 E. L. & E. 199 15 
 
 Fahs V. Darling, 82 111. 142 16 
 
 Fetherstone v. Cooper (1803) Per Lord Ch. Eldon, 9 Vesey, 
 
 Jr. 67, 67a .' 95 
 
 Fisher v. May, 2 Bibb. 448 14 
 
 Flannagan v. Kilcome, 58 N. H. 443 15 
 
 Foakes v. Beer, 9 App. Cas. 605 137 
 
 Fox V. The Railroad, 3 Wall. Jr. 243 15 
 
 Fraser v. Ehrensperger, L. R. 12 Q. B. D. 310 196, 197, 227 
 
TABLE OF CASES 
 
 PAGES 
 
 Fudickar v. Guardian Mutual Life Ins. Co., 62 N. Y. 392. . 234 
 
 Fullam V. N. Y. Ins. Co., 7 Gray 61 18 
 
 Gage, Case of, 5 Rep. 45b ; see 1 Salk. 53, and Will. 569 ... . 137 
 
 Gaw V. British Law Fire Ins. Co., [1908] 1 1. E. 245. . . .195, 214 
 
 218, 221, 228 
 
 The Genesee Chief v. Fitzhugh, 12 Howard 443 42 
 
 Gifford V. Livingston, 2 Denio 392 47 
 
 Godfrey v. Moser, 66 N. Y. 250 16 
 
 Gould V. The Hudson Eiver Railroad Co., 6 N. Y. 522 
 
 (1852) 46 
 
 Gourley v. Duke of Somerset, 19 Ves. 431 158 
 
 Grand v. Livingston, 4 App. Div. 589, 593, 596, aflBrmed 158 
 
 N. Y. 688 16, 241 
 
 Greason v. Keteltas, 17 N. Y. 491 239 
 
 Green v. Price, 13 M. & W. 695 149 
 
 Greer v. Poole, L. R. 5 Q. B. Div. 272 16 
 
 Grier v. Bilger, 13 Pa. 58 (1850) 15 
 
 Gumm V. Hallett, L. R. 14 Eq. 555 197 
 
 Haggart v. Morgan, 5 N. Y. (1 Seld.) 422 237 
 
 Halfhide v. Fenning, 2 Brown's Chancery Cases 336 (1788), 
 
 156, 157, 162, 163, 166, 169, 170, 172, 175, 197, 
 
 205, 206, 207, 208, 222, 227, 233, 239, 266 
 
 Hall V. People's Ins. Co., 6 Gray 185 277 
 
 Hamilton v. Ins. Co., 136 U. S. 242 70 
 
 Hamlyn & Co. v. Talisker Distillery, 21 Sess. Cases (4th 
 Series) 21, L. R. (1894 )A. C. 202 
 
 208, 217, 223, 228, 232, 239, 245, 249, 263, 267-271 
 Harcourt v. Ramsbottom, 1 Jac. & Walk. 505, 511 
 
 158, 167, 168, 172, 174, 190, 197, 205, 206, 222, 
 
 227, 239, 245, 248 
 
 Harris v. Reynolds, 7 Q. B. 71 222 
 
 Harrison v. Wright, 13 East 343 149 
 
 Hawkins v. Colclough, 1 Burrow 275 129 
 
 Hepburn v. Griswold, 8 Wall. 603 42 
 
 Hertz V. Woodman, 218 U. S. 205 42 
 
 Hickman v. Sawyer, 216 Fed. Rep. 289 18 
 
 Hide V. Petit, Freeman's Ch. Rep. 133; 1 Ch. Cas. 185, 1670; 
 
 Nelson's Ch. Rep. 83, 1673 132-134, 168, 183, 206, 227 
 
TABLE OF CASES 
 
 FAOES 
 
 Homer v. Flintoff, 9 M. & W. 678 149 
 
 Horton v. Sayer, 4 Hurlstone & Norman, 642, 643 
 
 182, 185-187, 194, 201, 227, 228, 239, 277 
 
 Hoste V. Dalton, 137 Mich. 522 16 
 
 Insurance Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365 
 
 244, 249, 250 
 Isaacs V. Third Avenue Eailroad Co., 47 N. Y. 122 (1871) ; 
 
 7 Am. Kep. 418 48 
 
 Jackson v. Barry Railway, L. R. [1893] 1 Ch. D. 238 (The 
 
 Justice of the Peace, Lond. Je. 24, 1911, Vol. 75, P. 
 
 291) 216, 261 
 
 Johnson v. Machielson, 3 Camp. 44 (1811) 276 
 
 Jones V. , 1 Rolle 380 143 
 
 Joplin V. Postlethwaite, 61 L. T. R. 629 215 
 
 Judson V. Gray, 11 N. Y. 408 47 
 
 Kemble v. Farren, 6 Bing. 141 149 
 
 Ketchum v. Belding, 58 App. Div. 295 17 
 
 Kharas v. Collier, Inc., 171 App. Div. 388 45 
 
 Kill V. Hollister, 18 Geo. II 1746, 1 Wils. 129 153-154, 156, 
 
 160, 170, 183, 190, 206, 226, 227, 239, 251, 262, 266 
 
 King V. Joseph (1814), 5 Taunt. 452 84, 157, 158, 167, 168 
 
 183, 188, 206, 226, 227, 252 
 Kirohner & Co. v. Gruban, 99 L. T. Rep. 932; L. R. [1909] 
 
 1 Ch. 413 221 
 
 Klein v. Maravelas, 219 N. Y. 383 43 
 
 Knox V. Lee, 12 Wall. 457, reversing Hepburn v. Griswold, 
 
 8 Wall. 603 42 
 
 La Greve v. iEtna Live Stock Ins. Co., 81 Hun 28 17 
 
 Law V. Garrett, 38 L. T. Rep. 3; 8 Ch. Div. 26 217, 220 
 
 Le Breton v. Miles, 8 Paige 261 16, 241 
 
 Leavitt & Lee v. Morrow, 6 Ohio St. 71 50 
 
 Lee V. Page, Law Journal, n. s. vol. 30, Pt. 1 188, 227 
 
 Lickbarrow v. Mason, 2 T. R. 63, 1 Smith's L. C, 11th 
 
 ed., 693 .71, 72 
 
 Logan V. Bank of Scotland, 94 L. T. Rep. 153; (1906) 1 
 
 K. B. 141 221 
 
 Logan V. United States, 144 U. S. 263-301, 36 L. ed. 429- 
 
 442, 13 Sup, Ct. Rep. 617 46 
 
324. TABLE OF CASES 
 
 PAGES 
 
 London Tramways Co. v. Bailey, L. R. 3 Q. B. D. 217. . .201, 227 
 Lord Lonsdale v. Littledale, 2 Vesey, Jr. 451, 452 (1794). 
 
 Per L. Ch. Loughborough 95 
 
 Love-day, in re. Y. B. 21 Ed. Ill, 7-20. 68 
 
 Lowe V. Peers, 4 Burr. 2225; 1 Saund. 58e 149 
 
 Luke V. Lyde, 2 Burr. 883 73, 74 
 
 McAllister v. Smith, 17 111. 328, 334 16, 241 
 
 McCaul V. Monkland Railway Co., 9 Sessions Cases, 1st 
 
 Series, 522 38 
 
 Mackenzie v. Girvan, 3 Sessions Cases, 2nd Ser., 318; 
 
 2 Bell's App. 43 76, 166, 178 
 
 M'Lean v. Clydesdale Bank, L. R. 9 Appeal Cas. 95 73 
 
 Manchester Ship Canal Co. v. S. Pearson & Son, Limited, 
 
 Per Contra, Q. B. Div. C. A., L. R. Q. B. D. 1900, 
 
 Vol. II, at 606 197, 245 
 
 Masterson v. Masterson, 22 Ky. L. Rep. 1193, 60 S. W. 
 
 301 70 
 
 Mayor of New York v. Hamilton Fire Ins. Co., 39 N. Y. 45 17 
 Meacham v. Jamestown, F. & C. R. R. Co. (1914), 211 N. Y. 
 
 346 '. 243, 277 
 
 Meeker v. Wright, 76 N. Y. 262 (1879) 48 
 
 Message Photoplay Co. v. Bell, 100 Misc. 267, 167 K. Y. 
 
 Supp. 129 125 
 
 Miles V. Schmidt, 168 Mass. 339 273 
 
 Mill, in the matter of . Y. B. 11 Hen. IV., 33 64 
 
 Mills V. Bayley, 2 H. & C. 36, 41 16j 187, 190, 
 
 192, 202, 227, 228, 247 
 
 Mills v. Lee, 6 Monr. 91 15 
 
 Milne v. Gratrix (1806), 7 East. 608, 611 84, 126, 157, 158, 
 
 167, 168, 183, 188, 206, 226, 227, 252 
 Mitchell V. Harris (1793), 2 Vesey Jr.'s Reports 129 
 
 153, 155, 157, 160, 166, 169, 222, 226, 227, 237, 239, 251 
 Mittenthal v. Mascagni, 183 Mass. 19, 66 N. E. 425, 60 
 
 L. R. A. 812, 97 Am. St. Rep. 404 17, 246, 272-274 
 
 Moffat V. Cornelius, 26 Weekly Reporter 1914 200, 227 
 
 Monongahela Navigation Co. v. Fenon (1842), 4 Watts & 
 
 Sergeant 205 15 
 
 Moore v. Fitzwater, 2 Rand (Va.) 442 15 
 
TABLE OF CASES 325 
 
 PAGES 
 
 Morris v. Creaeh, 22 Car. II, B. E. (1671), 1 Levinz's Rep. 
 
 292 101 
 
 Morse v. Goold, 11 N. Y. 281 47 
 
 Motion Picture Patents Co. v. Universal Film Mfg. Co., 
 
 243 U. S. 502 42 
 
 Mounteagle v. Penruddock, Godbolt's Reports (1613), p. 
 
 185, Y. B. 20 H. 6. 18 (1442) 98, 99, 100 
 
 Muldrow V. Norris, contra, 2 Cal. 74 16 
 
 N. Y., L. & W. R. R. Co., Matter of, 98 N. Y. 447 17 
 
 Newgate v. Degelder, 18 Car. II, 1 Sid. 281, 2 Keble's Re- 
 ports, 10, 20, 24 114 
 
 Noble V. Harris, 3 Keble's Reports 745, 29 Car. II B. R. 
 
 1688 '. 145-146 
 
 Northampton Gas-Light Co. v. Parnell, 15 C. B. 630, 645, 
 
 80 E. C. L. 630, 139 English Reprint 572. . . .16, 180, 227, 247 
 
 Northern Liberty Market Co. v. Kelley, 113 U. S. 199 70 
 
 Norton V. Mascall, 36 Car. 2; Repts. of Cases in Ch. Vol. 
 
 II, p. 304 (1694) 134-135, 137, 205, 206, 274 
 
 Nute V. Hamilton Mut. Ins. Co., 6 Gray 174 .14, 277 
 
 O. & L. C. R. R. Co. V. V. & C. R. R. Co., 63 N. Y. 176. . . 16 
 
 The Oranmore, 24 Fed. Rep. 922 241 
 
 Oregon, etc., Bank v. Amer., etc., Co. (C. C), 35 Fed. 22. . 244 
 
 Pacific Insurance Co. v. Soule, 7 Wall. 433 42 
 
 Pakas V. U. S. See Rosen v. U. S. 
 
 Pakner v. Lavers, 105 N. E. 1000 (Mass. Supreme Jud. Ct. 
 
 1914) 16 
 
 Pearson & Son, Ltd., v. Dublin Corp., L. R. [1907] A. C. 
 
 351 322 
 
 Penn v. Lord Baltimore, 1 Ves. Sen. 444 14 
 
 People V. Charles Schweinler Press, 214 N. Y. 395 43, 278 
 
 People V. Stephens, 52 N. Y. 306 16 
 
 People V, Williams, 189 N. Y. 131 43 
 
 Perkins v. U. S., etc., Co. (C. C), 16 Fed. 513 244 
 
 Philadelphia, etc., Co. v. Davis, etc., Co., 77 Fed. 879. . 70 
 
 Phillip V. Phillip, 160 N. Y. Supp. 624, 96 Misc. 471 94 
 
 Pierce v. Somerset Railway, 171 U. S. 641 68 
 
 Piercy v. Young, L. R. 14 Ch. D. 200 202, 227 
 
 Pierson v. McCahill, 21 Cal. 122 15 
 
326 TABLE OF CASES 
 
 PAGES 
 
 Pillans V. Van Mierop, 3 Burrow, 1663, 1669 66, 80 
 
 Pinnell, case of. 5 Rep. 117a; Co. Litt. 212b. See Foakes 
 
 V. Beer, 9 App. Cas. 605 137 
 
 Pollock V. Farmers' Loan & Trust Co., 157 U. S. 429, revers- 
 ing Springer v. United States, 102 U. S. 586, and Pa- 
 cific Insurance Co. i;. Soule, 7 Wall. 433 42 
 
 Pope V. Lord Duncannon, 9 Sim. 177 168, 248 
 
 President, etc., of Delaware & Hudson Canal Co. See Dela- 
 ware & Hudson Canal Co. 
 
 Price V. Williams, 3 Bro. C. C. 163; 1 Vesey Jr. 365 162, 207 
 
 Printing and Numerical Registering Co. v. Sampson, L. R. 
 
 19 Eq. 462 17 
 
 Randell v. Thompson, L. R. 1 Q. B. D. 748 192, 197, 201, 227 
 
 Rastetter v. Hoenninger, 214 N. Y. 66 94 
 
 Reed v. Washington Fire & Marine Ins. Co. (1885), 138 
 
 Mass. 572 277 
 
 Reichard v. Manhattan Ins. Co., 31 Mo. 518, 521 276 
 
 Renshaw v. Queen Anne Mansions Co., L. R. (1897) 1 Q. 
 
 B. D. 662 199, 214, 228 
 
 Rex V. Wheeler, 3 Burr. 1257 143-144 
 
 Rice V. Bixler, 1 W. & S. 456 14 
 
 Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386 (Collect- 
 ing authorities) 18 
 
 Riggs V. C. M. Ins. Co., 125 N. Y. 7 (25 N. E. 1058, 101 
 
 R. A. 684, 21 Am. St. Rep. 716) 16 
 
 Ripley v. Mtna. Ins. Co., 30 N. Y. 136, 163 17 
 
 Ripley v. Great Northern Railway Co., 31 L. T. R. 869. .201, 227 
 
 Roach V. N. Y. & Erie Co., 30 N. Y. 546 17 
 
 Rogers v Playford, 12 Pa. 181 16 
 
 Roper V. Lendon, 1 El. & El. 825 239, 277 
 
 Rosen v. United States, Pakas v. United States (U. S. Su- 
 preme Court Advance Opinions, Feb. 1, 1918, No. 5) . . 45 
 Rouse & Meier, in re, L. R. 6 C. P. 212. . . .191, 192, 197, 202, 227 
 
 Rowley v. Young, 3 Day 118 154 
 
 Rudston & Yates (Mich. 17 Car. in the King's Bench.) 55 
 
 Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79 (1892) . . 47 
 
 Russell V. Pellegrini, Ellis & Blackburn 1020 181, 182, 
 
 183, 227 
 
TABLE OF CASES 327 
 
 PAGES 
 
 Eussell V. Russell, L. R. 14 Ch. D. 471, 28 W. R. Dig. 154. . 215 
 
 Sainter v. Ferguson, 7 M., G. & S. 716 ' 150 
 
 Sanf prd v. Accident Assoc, 147 N. Y. 326 240 
 
 Sanford v. Commercial Traveler's Assoc, 86 Hun 380; 147 
 
 N. Y. 326 238 
 
 Scott V. Avery (1855-56), 5 H. L. Cas. 811; 25 L. J. 
 
 (Exch.) 308; 8 Exch. Rep. 487 69, 170, 171, 175, 176, 
 
 178, 180, 182, 185, 186, 187, 188, 189, 190, 
 193, 194, 195, 201, 203, 204, 205, 206, 207, 
 208, 210, 212, 214, 217, 218, 219, 226, 227, 
 228, 229, 230, 239, 243, 250, 252, 253-254, 
 264, 265, 266, 267 
 Scott V. Mercantile Accident & Guarantee Ins. Co., 66 L. T. 
 
 R. 811 195, 199, 213, 219, 228, 239 
 
 Scott V. San Sandeau, I. Q. B. 109a, I Adolphus & Ellis 
 
 Reports (N. S.) 456, 3 Bl. Com., p. 17, note 14 37 
 
 Seligman v. he Boutillier, L. R. 1 C. P. 681 183, 227 
 
 Shiell V. M'Nitt, 9 Paige 101 149 
 
 Slater v. May, 2 Ld. Raymond 1072 121 
 
 Smith V. Compton, ^20 Barb. 262 236 
 
 Smith & Service (1890), L. R. 25 Q. B. D. 545. . . .196, 222, 227 
 
 Snodgrass v. Gavit, 28 Pa. 221 (1857) 15 
 
 Southcote, in re case of, 4 Rep. 83b 137 
 
 Spackman v. Plumstead Board of Works, L. R. 10 App. 
 
 Cas. 229 203, 227 
 
 Springer v. United States, 102 U. S. 586 42 
 
 Spurrier et al. v. La Cloche, 71 L. J. (P. C.) 101; L. R. 
 
 [1902] A. C. 446; 86 L. T. H. 631; 51 W. R. 1; 18 T. 
 
 L. R. 606 > 217, 228 
 
 Stapilton v. Stapilton, 1 Atk. 3 14 
 
 State V. Bohan, 15 Kansas 407 49 
 
 The Steam-Boat Thomas Jefferson, 10 Wheaton 428 (1825) 43 
 Stewart v. Brooklyn and Crosstown Railroad Co., 90 N. Y. 
 
 588 (1882) 48 
 
 Stoddard v. Mix, 14 Conn. 12 14 
 
 Stone V. Marsh, 6 Barnewall and Cresswell 551 41 
 
 Street v. Rigby, 6 Vesey Jr. 814 159, 162, 163, 164, 165, 
 
 166, 169, 170, 239, 250, 251 
 
TABLE OF CASES 
 
 Tailor, in re., Six Carpenters' Case, 8 Rep. 147a 66 
 
 Taylor v. Marling, 2 Manning & Granger's Reports 55 
 
 (1840) 96 
 
 Taylor v. Patrick, 1 Bibb. 168 14 
 
 Theft, in the matter of. Y. B. 13 Edw. 4, p. 9 79 
 
 Thomas v. Sorrell (1673), Freeman's Reports 85 131 
 
 Thompson v. Chamoek, 8 T. R. 139 166, 169, 170, 190, 222, 
 
 226, 227, 233, 234, 239, 243, 245, 250, 262 
 
 Thomson v. Anderson, L. R. 9 Eq. 523 190, 197, 227 
 
 Thurston v. Fritz, 91 Kansas, 468 49 
 
 Tilford V. French, 1 Keb. 635, 599, 15 Car. II in B. R. 
 
 (1664), 1 Levinz. 113 100-102 
 
 Tobey v. The County of Bristol at al., 3 Story 800, 821, Fed. 
 
 Cas. no. 14065 14, 244, 251 
 
 Toledo S. S. Co. v. Zenith Transportation Ca, 184 Fed. 
 
 Rep. 391, 396 93, 159, 247, 248 
 
 Townsend v. Masterson, 15 N. Y. 587 16 
 
 Trainor v. Phoenix Fire Assurance Co., 65 L. T. R. 825 
 
 174, 194, 210, 214, 219, 228, 239 
 
 Tredwen v. Holman, 1 Hurlstone & Coltman 72 186, 188, 192, 
 
 193, 194, 219, 227, 228 
 
 Trippet v. Eyre (1689), 2 Ventris 113 130-131 
 
 Trombley & Carrier Co. v. Seligman, 133 App. Div. 525 45 
 
 Union Insurance Ca v. Central Trust Co., 157 N. Y. 633. . 84 
 
 Union National Bank v. Chapman, 169 N. Y. 538, 545 16, 241 
 
 United States v. Reid, 12 How. 361, 13 L. ed. 1023 46 
 
 U. S. Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 
 
 222 Fed. Rep. 1006 242 
 
 Universal Film Manufacturing Co. v. Bell. 100 Misc. 281, 
 
 167 N. Y. Supp. 124 125 
 
 Vawdrey v. Simpson (1895), per Chitty, J., 65 L. J. (Ch.) 
 
 369; L. R. [1896] 1 Ch.; 44 W. R. 123 215 
 
 Vere v. Cawdor, 11 East's Reports 568 42 
 
 Viney v. Bignold, L. R. 20 Q. B. D. 172 204, 227 
 
 Vivion V. Wilde. See Vynior's Case. 
 
 Vynior's Case. Y. B. at 7 Jac. 1, rot. 2629. Brownlow 
 
 and Goldesborough's Reports (2nd ed. 1654), Coke's 
 
 Reports, Part VIII, at p. 80 84-102, 105, 106, 107, 113, 
 
TABLE OF CASES 
 
 PAGES 
 
 115, 129, 131, 132, 167, 170, 183, 188, 191, 192, 
 
 196, 205, 223, 226, 227, 234, 243, 247, 252, 266 
 
 Walmsley v. White, 40 W. R. 675 (1892) 215 
 
 Warbrooke v. GrifEen, 2 Brownl. 254; Moore 876, 877, S. C. 66 
 
 Warburton v. Storr, Bamewall v. Cresswell's Reports, 103 . . 90 
 
 Waters v. Taylor, 15 Ves. Jr. 10. . . .158, 159, 160, 161, 165, 166, 
 
 169, 170, 172, 174, 175, 197, 205, 206, 207, 
 
 222, 227, 230, 239, 244, 250, 265, 274 
 
 Watson V. Wetter, 91 Pa. 385 16 
 
 Wellington v. Mackintosh, 2 Atk. 569 (1743). .. .154, 156, 157, 
 
 160, 169, 170, 227 
 
 Whitfield V. Levy, 35 N. J. Law Reports 149 148 
 
 Wickham v. Harding, 28 L. J. (Exch.) 215 182, 183, 227 
 
 Wilde V. Vinor. See Vynior's Case. 
 
 Wilkinson v. First National Fire Ins. Co., 72 N. Y. 499 17 
 
 Williams v. Fire Association of Philadelphia, 119 App. 
 
 Div. 573 18 
 
 Wills V. Maccarmick, 2 Wilson, 148, 149 95 
 
 Wilson V. Glasgow Tramway Co. (Je. 22, 1878), 5 Sess. 
 
 Cases (4th Ser.) 981 262 
 
 Winter v. Trimmer, 1 Wm. Black, 395 149 
 
 Wiseman v. Roper, 1 Chanc. 158 14 
 
 Wood V. Lafayette, 46 N. Y. 484 236 
 
 Wright V. Hart, 182 N. Y. 330 43 
 
 Yeomans v. Bell, 151 N. Y. 230; 45 N. E. 552 69 
 
 Zane v. Zane, 6 Munf. 406 14 
 
 Zenith case. See Toledo S. S. CO. 
 
INDEX 
 
 (Eeferences to books will be 
 found indexed under Bibliog- 
 raphy. Eeferences to cases and 
 statutes will be found indexed 
 under Tables of Cases and Stat- 
 utes.) 
 
 Abbot, Everett V., 39 
 Action is to be upon the award, 
 232, 265 
 See also Arbitrators must de- 
 cide before an appeal may 
 be made. 
 Action on revoked covenant, 113- 
 
 115, 154 
 Agency, nature of, not clearly un- 
 derstood in early develop- 
 ment of English common 
 law, 68-69 
 Agreement to arbitrate no hin- 
 drance to litigation, 155- 
 157, 173-177, 185, 189, 217, 
 221, 231, 232 
 See also Ousting court of 
 jurisdiction. 
 Agreements, containing clause 
 "In the usual way," ex- 
 plained, 271 
 Agreements given effect under 
 certain qualifications, 
 232 
 Agreements must be enforced, 
 165-169, 183 
 See also Eevoeability. 
 Allen, Judge, 13, 185, 227-237 
 
 American courts ousted by for- 
 eign courts, 272-278 
 American law, judicial errors in, 
 
 226-240 
 Appeals from agreements justifi- 
 able, 163-165 
 Arbitration, cause of, 18 
 
 See also Commercial arbitra- 
 tion, 
 considered unconstitutional, 
 
 240 
 contrary to public policy under 
 
 old rule of law, 233 
 development of as part of the 
 English Common Law, 106- 
 107 
 disputes which may be arbi- 
 trated, N. Y. S., 286 
 expert opinions gained by, 8, 
 
 26, 156 
 forms of, 11, 286 
 history of, 24-38, 105 
 ancient, 25 
 Austria-Hungary, 31 
 Belgium, 37 
 China, 37 
 Denmark, 28 
 Edinburgh, 30 
 Prance, 27, 30, 32, 33 
 Germany, 37 
 Greece, 24, 36 
 Hebrew state, 29 
 Holland, 31 
 India, State of Nepal, 36 
 
 331 
 
INDEX 
 
 Arbitration, history of, Ireland, 
 30 
 Italy, 30, 37 
 Japan, 35 
 Netherlands, 37 
 Norway, 37 
 Persia, 35 
 Portugal, 37 
 Eome, 27, 29 
 Scotland, 28, 37, 58 
 Spain, 30, 33, 37 
 Sweden, 37 
 informal, 286 
 international, 3 
 
 a means of ascertaining the 
 cause of action to be de- 
 cided by the courts, 174- 
 175, 184-186 
 parties eligible to arbitrate in 
 
 N. Y. S., 286 
 the present is the age of, 34 
 present methods irregular, 18 
 a preventive of litigation, 7 
 revocation of references, 16 
 the right of liberty in France, 
 
 34 
 satisfaction afforded by, 35, 38 
 satisfaction of, in England, 267 
 a social function, 18, 19 
 under auspices of the N. Y. S. 
 
 bodies, 287 
 under auspices of the N. T. S. 
 
 Bar Association, 287 
 
 under the code of N. Y. S., 287 
 
 versus Judicial disposition of 
 
 commercial controversy, 8 
 
 versus Judicial procedure, 19 
 
 Arbitration agreement adopted 
 
 by the Public Service 
 
 Commission for the first 
 
 district of N. Y. S. with 
 
 the Interborough Bapid 
 
 Transit Co. of N. Y., form 
 of, 298-300 
 arbitrators, appointment of, 
 
 fees, etc., 299-300 
 hearing by arbitrators, 299- 
 
 300 
 litigation, times when it ia le- 
 gitimate, 300 
 manner of conducting arbitra- 
 tion under, 299-300 
 submissions, conditions of un- 
 der, 298 
 Arbitration clause essential to a 
 
 contract, 183 
 Arbitration clauses explained, 
 
 266 
 Arbitrators are not agents, 57-58, 
 95 
 as agents. .See Arbitrators, 
 
 definition of. 
 authority of, countermandable, 
 53-59 
 . Boards of, Chamber of Com- 
 merce of N. Y., 6 
 Court of sessions, England, 
 
 8 
 Grecian, 36 
 Holland, 31 
 New Amsterdam, 5, 6 
 decisions of, final and binding, 
 
 181-183, 192 
 definition of, 55 
 
 Judge Andrew's, 234 
 jurisdiction of not to be ousted 
 
 by courts, 216 
 lawyers as, desirability of, 10, 
 
 11 
 must determine before parties 
 resort to courts, 174-176, 
 182, 193, 203-204, 207- 
 214, 219, 229, 232-233 
 oflacial list of, 10 
 
INDEX 
 
 333 
 
 Arbitrators, power of, 55 
 
 in re, to partnership, 215 
 Artificial reasoning of judiciary, 
 
 56-57 
 Ashbourne, Lord, 270 
 Ashton, Justice, 54, 123-124, 
 
 143 
 Assumpsit, development of, 63- 
 
 65 
 Authority, doctrine of, applica- 
 tion and revocability of, 
 129-134 
 Awards, early English opinions as 
 to whether awards are of 
 as high legal nature as 
 an obligation, 101 
 enforcement of, 134-135, 183 
 See also Agreements must be 
 enforced, 
 final and binding, 222, 234 
 
 meaning of explained, 155 
 liberally construed, 129 
 
 Bacon, Matthew, 279 
 
 Baldasseroni, 7 
 
 Bartley, Ch. J., 50 
 
 Bentwitch, 30 
 
 Bible advises to settle disputes 
 peacefully, 280 
 
 Bills of lading submitted to ar- 
 bitration, 220-221 
 
 Bonds, Coke v. Abbott's opinion 
 as to the form of, 90- 
 91 
 under seal, enforcement of was 
 a fixed concept of the com- 
 mon law at an early pe- 
 riod, 87-90 
 
 Bowe% Lord Justice, 40, 216 
 
 Bridgman, Lord Chancellor, 132 
 
 Business men, attitude toward 
 the law, 1, 2 
 
 Business men, wish only to estab- 
 lish cause of action by ar- 
 bitration, 265-266 
 wish to keep out of courts a 
 legitimate desire, 279 
 
 Campbell, Lord, 176-178, 181, 
 182, 186, 205, 253, 259, 
 264 
 
 Cardozo, Judge, 43, 277, 278 
 
 Carta Mercatoria, 3 
 
 Chamber of Commerce, N. Y. S., 
 
 accomplishing a public 
 
 good by prevention of 
 
 litigation, 260-261 
 
 See also Submissions. 
 
 arbitration, committee on, 
 
 9 
 arbitrator of, 6 
 cooperation with the Bar of 
 
 N. Y. S., 280 
 satisfaction afforded business 
 men, 9 
 
 Chancellors, early English, salary 
 and fees of, 255-259 
 
 Charters. See Individual names 
 of charters. 
 
 Chicago. See Trade organiza- 
 tions; Municipal Court of 
 Chicago 
 
 Clarke, Samuel B., 49 
 
 Coke, 3, 85, 91, 99, 131, 132, 136- 
 140, 141-145 
 
 Coke's dictum, difScult to des- 
 troy, 184 
 
 Coleridge, Lord, 37, 173-175, 194, 
 195, 197, 210, 212 
 
 Commerce of middle ages carried 
 on at fairs, 76 
 
 Commercial arbitration, effect of 
 war upon English practice 
 of, 22 
 
334 
 
 INDEX 
 
 Commercial aTbitration, English 
 practice of, cause, 19-20 
 growth of, 19, 22 
 result of, 21-23 
 
 Commercial contracts with the 
 clause "in the usual man- 
 ner," are treated accord- 
 ing to "the habitual form 
 of arbitration adopted in 
 fact," 223-225 
 
 Common law, arrested develop- 
 ment of, 62-65, 146-147, 
 223, 224 
 See also Arbitration, develop- 
 ment of. 
 many principles peculiar to, 
 
 are obsolete, 70 
 of England on arbitration 
 changed by courts, not 
 parliament, 245-246 
 
 Common law courts arresting the 
 development of common 
 law cause turning point in 
 history of English law, 62- 
 63 
 determined to drive mercan- 
 tile courts out of business, 
 81, 82 
 opposition to court of Admir- 
 alty, 82-83 
 
 "Condition precedent." See Ar- 
 bitrators must make 
 awards before an appeal 
 may be made. 
 
 Confucius believed in peaceful 
 settlements of disputes, 
 280 
 
 Consideration, doctrine of, forced 
 on merchants by courts of 
 common law, 80 
 
 Contracts, arbitration clause in- 
 troduced into, 23 
 
 Contracts, aversion of courts to 
 sanction, 13, 15 
 
 courts to be selected by par- 
 ties to, in event of con- 
 troversy, 17 
 
 development of in the common 
 law, 65 
 
 engineer or architect to be final 
 judge, 23 
 
 English, 22 
 
 executory, not under seal, are 
 enforceable, 64 
 
 freedom to make, 17 
 
 history of the development un- 
 der English law, 60-70 
 
 laws governing, may be stipu- 
 lated by parties to, 16 
 Court procedure, administration 
 of ought to be within the 
 understanding of laymen, 
 2 
 
 See also Arbitrators, boards 
 of; Litigation; Municipal 
 court. 
 Courts, arbitration encouraged 
 by, to prevent litigation, 
 234, 262 
 
 attitude toward arbitration, 18, 
 144-145, 159-163, 168-169, 
 198-202, 250-252, 262 
 
 See also New York Courts at- 
 titude. 
 
 power to decree specific per- 
 formance of an agreement, 
 196 
 
 privileged to aid arbitrators by 
 removing difficulties, 222 
 
 revocation considered a just 
 cause for action, 153 
 Cranworth, Lord Chancellor, 175, 
 180, 182, 184, 190, 205, 
 211, 220 
 
INDEX 
 
 385 
 
 CresBwell, Justice, 171-172 
 CuUen, Judge, 238 
 Custom of Avignon, 3 
 
 Damages, fixing of, as a penalty, 
 148-149 
 
 Davis, Judge Vernon M., 260 
 
 Debt, want of consideration orig- 
 inated with, 66 
 
 Defendant upon an award should 
 be notified of award by 
 arbitrator, 115 
 
 Denman, C. J., 37 
 
 Difficulties of safeguarding 
 clients against ineffective 
 agreements in case of 
 breach, 150-152 
 
 Discoveries, courts relieve upon a 
 bill for, 154-155 
 
 Dodridge, J., 143 
 
 Earl, Judge Eobert, 17, 48 
 
 Eldon, Lord, 159-165, 167-169, 
 171, 207, 265, 266, 274 
 
 Ellenborough, Lord, 42, 67, 126, 
 275, 278 
 
 English Arbitration Committee, 
 growth and success of, 20- 
 23 
 
 English common law reports, ef- 
 fect of, upon arbitration, 
 231 
 
 English courts ousted of jurisdic- 
 tion by courts of Hungary 
 or Germany, 218, 267 
 
 English law, confused state of, 
 207 
 
 Equity, cost of, versus cost of 
 arbitration, 29 
 
 Errors cause other errors, 238- 
 239, 246 
 See also Judicial errors. 
 
 Esher, Lord, 194, 195, 196, 197, 
 214 
 
 Pancher, Enoch L., 6 
 
 Fees, loss of, real cause of early 
 English opposition to ar- 
 bitration, 253-253 
 
 Eines and penalties, passing of, 
 148-152 
 
 Gild merchant, 4 
 
 Gild of St. John of Beverly, 4 
 
 Gilds, city of London, 5 
 
 city of York, 4 
 Grier, J., 15 
 
 Hamburg court, 220 
 Hardwicke, Iiord, 154, 157, 160 
 Harley, Herbert, 18 
 Herschell, Lord Chancellor, 209, 
 
 270 
 Hollister, Judge, 247-248 
 Holmes, Justice, 41, 276 
 Holt, Lord, 138-139 
 Horwood, 118 
 Hough, Judge, 16, 52, 242-249 
 
 Illinois law of arbitration, 294- 
 298 
 
 arbitrators, compensation of, 
 297 
 number of, etc., 295 
 power of, 295-296 
 
 awards, nature and enforce- 
 ment of, 296 
 
 definition of terms, 298 
 
 hearings of controversies, rules 
 for, etc., 295 
 
 jurisdiction of the court un- 
 der, 296-297 
 
 parties eligible to arbitrate un- 
 der, 294 
 
336 
 
 INDEX 
 
 Illinois law of arbitration, repeal 
 of the act of 1873, 298 
 
 revocability of, 295, 297 
 
 subjects that may be arbi- 
 trated under, 294 
 
 witnesses, fees, etc., 295 
 
 writs of error and appeals 
 from decision of court, 
 297 
 Implied quantum meruit. See 
 
 Promise implied. 
 Intention of parties to an agree- 
 ment decides system of 
 law which shall govern 
 their contract, 267-273 
 
 See also System of the law. 
 
 governs decision as to validity 
 of arbitration, 241 
 
 governs decisions upon con- 
 tracts, 232, 267-273 
 
 Jeffreys, Lord Chancellor and 
 
 Baron, 135, 137, 213, 274 
 
 Jessel, Sir George, 138, 201, 
 
 202 
 Judges' motive in preventing ar- 
 bitration from ousting 
 jurisdiction of the court, 
 231 
 Judicial error, 184, 213, 221 
 judicial method is wisest way 
 
 to correct, 40 
 leaves its impress, 184 
 Jurisdiction of courts, re arbitra- 
 tion, 208-209 
 defined, 273-274, 278 
 Justice, administration of, pre- 
 limin? T report on effi- 
 ciency in, 250 
 arbitration is satisfactory proc- 
 ess of administering, 31-32 
 See also Speedy justice. 
 
 Kenyon, Lord, 162, 164-166, 169, 
 
 171, 233 
 Kinnear, Lord, 271 
 Knowlton, C. J., 272, 278 
 
 Lauer, Judge, 6 
 
 Law, uncertainty in, 39 
 
 Law merchant a branch of the 
 
 Law of Nations, 72-73, 79 
 
 development of, 73 
 
 outgrowth of the market law 
 
 founded by merchants, 75 
 
 Law of admiralty, development 
 of, 76 
 
 Law of nations identified with 
 law of nature, 79 
 
 Limitations, statutes of, made by 
 contractors, 17 
 
 Limitations of subjects of which 
 courts have jurisdiction, 
 273 
 
 Limitations of time within which 
 suits may be brought ad- 
 justed by contract, 273 
 
 Litigation, fear of, the cause of 
 arbitration, 18 
 See also Prevention of unnec- 
 essary litigation, 
 modem courts do not encour- 
 age, 260 
 prevention of, favored by 
 "Public Policy," 14 
 
 London Court of Arbitration, 
 protest of, to N. T. Cham- 
 ber of Commerce upon 
 Judge Hough 's decision, 
 242 
 
 Loughborough, Lord Chancellor, 
 154 
 
 Lurton, Justice, 42 
 
 Macdonell, Sir John, 22 
 Macklin, Charles, 39 
 
INDEX 
 
 337 
 
 Mansfield, Lord, 71-75, 129, 137, 
 
 143, 154 
 Market courts, origin and devel- 
 opment of, 76-78 
 Martin, Baron, 16, 186, 190, 194 
 Massachusetts courts, attitude to- 
 ward arbitration, 276 
 Maule, J., 16, 57 
 Montague, Sir Henry, 102, 142, 
 
 143, 154, 155, 213 
 Moulton, Fletcher, 151 
 Municipal Court of Chicago, 
 rules governing arbitra- 
 tions, 301-302 
 jurisdiction, 301 
 law of 1917, 301-302 
 submission to arbitration, 
 forms of, 302-303 
 Municipal Court of New York, 
 arbitration and concilia- 
 tion branch of, 6, 7 
 arbitration, rules for, now in 
 
 operation in, 306-309 
 arbitrators, duties of, 307 
 awards, 307 
 establishment of, 306 
 fees, 307 
 
 forms of arbitration, 307-309 
 parties eligible to submit, 306 
 record of proceedings, 307 
 fevocability of the submission, 
 
 307 
 submissions, conditions to, 306 
 Mutual promises. See Promise 
 implied. 
 
 New York City. See Arbitrators, 
 boards of ; Municipal 
 Court of. 
 
 New York courts, attitude to- 
 ward arbitration, 12, 230- 
 235 
 
 New York State. See Chamber 
 of Commerce, N. Y. S. 
 
 ' ' Ousting courts of jurisdiction, ' ' 
 266-207, 210, 244, 250 
 
 See also Agreement to arbi- 
 trate no hindrance to liti- 
 gation; Appeals from 
 agreements. 
 
 American explanation of, 231- 
 233 
 
 not jiossible through arbitra- 
 tion, 172, 175, 176, 194, 
 211, 262-264 
 
 origin of the phrase, 153, 243 
 
 Ouzel Galley Arbitration, Society, 
 
 30 
 I 
 
 Page, Jpdge, 45 
 
 Part, Ji 127 
 
 Pa,rker, Judge, 17 
 
 Parol contracts, development of 
 law of, 68 
 
 Parol submissions insecure 
 method of arbitration un- 
 der the early English law, 
 99-100, 107-109 
 
 Pendency of arbitration bar to 
 action, 113, 153 
 
 Piepoudre Court. See Market 
 courts. 
 
 Pike, 118 
 
 Pole, 143 
 
 Prevention of unnecessary litiga- 
 tion, rules for, Rep't of 
 the Joint Committee of 
 the Chamber of Commerce 
 of N. Y. S. and of the 
 N. Y. S. Bar Association 
 on, 10-11 280, 283-2:8 
 See also Courts encourage ar- 
 bitration ; Unnecessary 
 litigation. 
 
338 
 
 INDEX 
 
 Prevention of unnecessary litiga- 
 tion, after the facts have 
 become fixed, 284-287 
 
 after suit, 287-288 
 
 approved hy Bench and Bar 
 alike, 260-262 
 
 at the source, 284 
 
 committee on, 10 
 
 differences, minimizing and ad- 
 justing of, 285 
 
 favored "bj court, 11-18 
 
 purpose and scope of, 283 
 Promise implied, validity of, 66- 
 
 67, 109, 142-144, 205 
 Public policy, doctrine of, 244 
 
 favors arbitration, 24, 25, 177, 
 213 
 
 favors liberty of parties to 
 work out their own salva- 
 tion, 14-15, 205 
 
 foundation for decisions, 41-50 
 
 foundation of the law, 41 
 
 opposed to arbitration, 240 
 
 opposed to penalties fixed in an 
 agreement, 149 
 
 requirements of, 17 
 
 Eansom, Judge, 1 
 
 Beason, the necessary basis for 
 
 decisions, 50 
 Beports, inaccuracy of, 85-86, 
 114, 118-127 
 See also English common law 
 reports. 
 EevocabUity, doctrine of. 
 Bee also Arbitrators, authority 
 
 and decisions of. 
 development of, in American 
 courts, 196, 327-241, 243, 
 247-249 
 hindrance to arbitration, 51, 
 281 
 
 Eevocability, doctrine of, list of 
 English cases on, 228 
 under the English law of ar- 
 bitration, 58-59 
 upheld by stare decisis, 52 
 Eevocability of agreements, 92- 
 98, 103-116, 157-158, 167, 
 184, 190-197, 201-202, 206, 
 222 
 See also Action upon revoked 
 covenant; Agreements 
 
 must be enforced, 
 prohibited by statute, 267 
 to submit without further hin- 
 drance to the contract, 
 236 
 upon charge of fraud, 218 
 of an arbitrator, power not 
 coupled with an interest, 
 180 
 Eevocation of an arbitration 
 must be sanctioned by the 
 court, 180 
 Eomer, Lord, 274, 278 
 Boot, Elihu, 2 
 
 Bosenbaum, Samuel G., 8, 19-22, 
 245, 253 
 
 Scotland, law on arbitration, 58, 
 75, 208-210 
 
 Scott, Sir John. See Eldon, 
 Lord. 
 
 Seldon, Judge, 240 
 
 SeweU, Judge, 44 
 
 Sharshull, J., 68 
 
 Southmayd, Charles F., 51, 
 232 
 
 Specific performance. See Judi- 
 cial error; Courts, power 
 of. 
 
 Speedy justice desired by mer- 
 cantile men, 2-4, 7, 78 
 
INDEX 
 
 stare decisis, attitude of Bar to- 
 ward, 39-51 
 
 exceptions to the rule of, 47 
 Story, Judge, 250-252 
 Submissions by deed, recognition 
 of the vaUdity of, 61-67, 
 107-113 
 
 See also Arbitration. 
 
 by obligation as compared to 
 submission without obliga- 
 tion, 94 
 
 Chamber of Commerce N. T. 
 S., Rules and regulations 
 governing, 288-294 
 
 forms of, 291-294 
 
 parol or by deed may be re- 
 voked, 157 
 
 upon agreed statement of facts, 
 rules for litigation of, 
 285-286 
 Sugden, Lord Chancellor, 157, 
 169, 171, 205, 233 
 
 Taney, Chief Justice, 43 
 Tenterden, Lord, 40 
 Thurlow, Chancellor, 95 
 Tracy, Judge Benjamin P., 48 
 Trade organizations in Chicago 
 agreeing to promote t19.de 
 
 arbitration, list efj 39.3- 
 306 
 Turley, Judge, 57 
 
 United States Shipping Board 
 charter, arbitration provi- 
 sioi of, bare boat form, 
 301 
 
 Unnecessary litigation defined, 
 284 
 
 Validity of covenants under early 
 
 English law, 67 
 Veeder, 121, 187-140 
 Vinogradoff, Prof., 86 
 Vynior's ease, authority on "Au- 
 thority," 128-129 
 authority for revocability, 
 
 54 
 basis of many judgments in. 
 England and United 
 States, 84 
 influence of the dictum of, 
 157, 191, 206, 220 
 
 "Watson, Lord, 208-209, 263, 269 
 Werner, Percy, 10 
 
 Telverton, II6-II5