there is in fact an agreement between the parties recorded in writing (Aitken v. Batchelor (1893), 62 L. J. Q. B. 193. See also Brandon v. Smith (1853), 22 L. J. Q. B. 321; Clements v. Devon Insurance Commissioners, [1918] 1 K. B. 94).

Under s. 11 of the Common Law Procedure Act, 1854, it was held that where articles of partnership containing an arbitration clause were entered into for one year, and the partnership was continued by verbal agreement beyond the year and ultimately dissolved, the articles constituted a deed in writing containing an agreement to refer to arbitration differences between the parties after the expiration of the year, and a suit to take the accounts was stayed (Gillett v. Thornton (1875), L. R. 19 Eq. 599). This case was followed in Cope v. Cope (1885), 52 L. T. 607.

Whether signature necessary.

It would seem that the agreement must be one which is binding on and enforceable against the parties, and, therefore, if it is within the Statute of Frauds, must be not only in writing, but also signed by the party to be charged therewith or by some other person thereunto lawfully authorised. For example, a contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, must, by the Statute of Frauds, be evidenced by a memorandum in writing, signed by the party to be charged or his duly authorised agent, otherwise it is not enforceable by action, and if not so enforceable, a clause in it providing for the reference of disputes to arbitration, or an award on such a reference would seem to be equally unenforceable (see Walters v. Morgan (1792), 2 Cox, Ch. Cas. 369).

In Morgan v. William Harrison, Ltd., [1907] 2 Ch. 137, at p. 144, Cozens-Hardy, M.R., said: “A point was suggested under the Arbitration Act, 1889, namely, that there was no submission in writing. But the letter of 22nd March headed 'Little Wyrley Colliery Lease,' signed by Mr. Chinn, whom I must treat as having signed as agent for all the lessors, seems to me, according to its true construction, to be an offer to the tenants to continue as tenants at will of the mine and wayleave upon the terms of the written document, namely, the lease which is mentioned. That is the offer which is accepted here, and, therefore, I think that that objection ought not to prevail."

There is some conflict of authority as to whether the signatures of the parties or their agents are necessary in cases which do not fall within the Statute of Frauds, and in which there is no other statutory provision expressly requiring such signatures.

Where in an action for the price of goods sold the bought note signed by the defendants contained a provision for arbitration in case of dispute, whilst in the sold note signed by the plaintiffs there was no such provision, it was held that there was no valid submission by the parties (Caerleon Tinplate Co. v. Hughes (1891), 60 L. J. Q. B. 640),

In this case Denman, J., said that in his judgment there could be no written agreement to submit unless it was in writing signed by the parties as their agreement, and Wills, J., took the same view as to the necessity of both signatures.

In Baker v. Yorkshire Assurance Co., [1892] 1 Q. B. 144; 61 L. J. Q. B. 638, it was held that an insurance policy containing an arbitration clause, though not signed by the assured, amounted to a valid submission to arbitration within the meaning of the Arbitration Act, and that an action on the policy which had been commenced by the assured was rightly stayed, Lord Coleridge, C.J., saying, "The plaintiff sues on the policy, and by so suing affirms it to be his contract." Caerleon Tinplate Co. v. Hughes (supra) was treated as depending on the facts of that particular case (see also United Kingdom, &c., Association v. Houston & Co., [1896] 1 Q. B. 567). The decision in Baker v. Yorkshire Assurance Co. was approved and applied in Hickman v. Kent or Romney Marsh Sheep Breeders' Association, [1915] 1 Ch. 881, where the plaintiff sought to enforce his rights under the articles of association of the defendant company, which contained a provision for the reference to arbitration of disputes between the company and any of the members, and it was held that the contract contained in the application for membership and the acceptance thereof by the company constituted a submission within the Act, Astbury, J., saying, "It would seem reasonable that the plaintiff ought not to be allowed, in the absence of any evidence filed by him, to proceed with an action to enforce his rights under the articles, seeing that the action is a breach of his obligation under Article 49 to submit his disputes with the association to arbitration, and if the case falls within the Act, I see no reason for exercising my discretion under s. 4 in his favour." But in Forden v. Whittle (18th April 1907, unreported, referred to in Halsbury's Laws of England, Vol. I. pp. 441, 476), Bray, J., held that the signatures of the parties or their agents were necessary.

In Re Lewis, Ex parte Munro (1876), 1 Q. B. D. 724, it was held that a document containing the terms of an agreement as to the amount of costs payable by a client to a solicitor, assented to by the client but signed only by the solicitor, was not an "agreement in writing" within the Attorneys and Solicitors Act, 1870 (33 & 34 Vict. c. 38), s. 4. But this was disapproved, and the contrary held, in Ex parte Baylis, In re Thompson, [1894] 1 Q. B. 462; 63 L. J. Q. B. 187.

"Differences." Distinction between arbitration and valuation.

The Arbitration Act has not altered the previous rule that to constitute a submission there must be a difference. If there is no difference there is nothing for the arbitrator to arbitrate about, and in the case of an agreement to refer future disputes to arbitration, the arbitrator's jurisdiction does not arise until a dispute has arisen. The distinction

between an agreement to refer a difference and an agreement to prevent differences from arising is sometimes difficult to determine.

One of the elements of an agreement to refer to arbitration, or of a submission to arbitration, is that the subject-matter to be decided must be a dispute, and this element must exist whether at common law or under the Arbitration Act. If the agreement between the parties is in effect to prevent disputes from arising, then it is neither an agreement to refer to arbitration nor a submission to arbitration, and it is not within the Arbitration Act.

In Chambers v. Goldthorpe, [1901] 1 K. B. 624, at p. 635, however, A. L. Smith, M.R., said: "It was argued that there was no dispute between the parties prior to the plaintiff giving his certificate, and that unless there was a dispute the plaintiff could not be in the position of an arbitrator. I do not see why there should not be an arbitration to settle matters, as to which, even if there was no actual dispute, there would probably be a dispute unless they were so settled."

Instances of agreements which may not constitute submissions to arbitration arise where parties agree to sell property or goods at a price to be fixed by a third person. In such cases, however, there may be a dispute, as, for instance, in cases where one party claims one price and the other party another, and they agree to refer the dispute. between them to some third person. Although an appraisement or valuation is not necessarily an award, there is no reason why it should not be" (per Lord Esher, M.R., in In re Dawdy and Hartcup (1885), 15 Q. B. D., at p. 431).

But here, again, another test may be necessary in order to discover whether the reference to the third person is a reference to him as an arbitrator or as a valuer. Speaking generally, if the third person is intended to act as valuer and to form an opinion between the parties as to which is the correct price from his own judgment and skill as a valuer, he is not an arbitrator. Even where the reference was to two persons described as arbitrators in the agreement, who were directed to appoint an umpire in case of dispute, and the question was as to the amount to be paid to a nurseryman for yielding up his lease, and for his plants, the Court refused to enforce the decision of the umpire as an award because it did not appear that any judicial enquiry was intended (In re Hammond and Waterton (1890), 62 L. T. 808).

This is not, however, an absolute test, because there may be cases where a dispute has arisen in which the third person is an arbitrator, though by reason of his knowledge of the subject-matter or his skill it is not intended that he should hear evidence or hold a judicial enquiry.

"If it appears from the terms of the agreement by which a matter is submitted to a person's decision that the intention of the parties was

that he should hold an enquiry in the nature of a judicial enquiry and hear the respective cases of the parties and decide upon evidence laid before him, then the case is one of an arbitration. The intention in such cases is that there shall be a judicial enquiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matter for the purpose of preventing differences from arising-not of settling them when they have arisen-and where the case is not one of arbitration but of a mere valuation. There may be cases of an intermediate kind, where, though a person is appointed to settle disputes that have arisen, still it is not intended that he shall be bound to hear evidence and arguments. In such cases it may be difficult to say whether he is intended to be an arbitrator or to exercise some function other than that of an arbitrator. Such cases must be determined each according to its particular circumstances (per Lord Esher, M.R., in In re Carus- Wilson and Greene (1886), 18 Q. B. D. 7, at p. 9).

In the construction of an agreement which provided for the appointment of two valuers and an umpire "in pursuance of and in accordance with the Arbitration Act, 1889," Neville, J., held that the parties intended an agreement for arbitration and not merely a valuation, but "you cannot make a valuer an arbitrator by calling him so, or vice versa" (Taylor v. Yielding (1912), 56 Sol. J. 253).

On the other hand, if it is clear that a judicial enquiry was intended, the reference is a submission to arbitration and the person referred to an arbitrator.

"If a reference is made to a person to state what is the value of a stack of hay or the plant of a brewery, and he has only to use his eyes, so to speak, to ascertain the value, that may not be an arbitration; but if the matter referred be one on which a judicial decision must be exercised, on which parties are heard and witnesses are examined, it is clearly an arbitration" (per Cockburn, C.J., in In re Hopper (1867), L. R. 2 Q. B. 367; 36 L. J. Q. B. 97).

Illustrations.

1. An agreement between an outgoing and an incoming tenant provided that the latter should buy the hay belonging to the former upon the farm, and that the former should allow to the latter the expense of repairing gates and fences, and that the value of the hay and of the repairs should be settled by third persons. Held that the decision of these persons was a valuation, not an award, and need only be stamped accordingly (Leeds v. Burrows (1810), 12 East, 1. See also Lee v. Hemingway (1834), 3 Nev. & M. 860; 3 L. J. (N. S.) K. B. 124; Jenkins v. Betham (1855), 15 C. B. 168; 24 L. J. C. P. 94; Boss v. Helsham (1866), L. R. 2 Ex. 72).

2. Parties entered into a contract to sell and purchase a brewery and plant at a price to be fixed by third persons, who were to choose an

umpire before entering on the consideration of the matter. These persons could not agree on an umpire. Held that these persons were valuers merely, and not arbitrators, and that the Court could not appoint an umpire (Collins v. Collins (1858), 26 Beav. 306).

3. On a sale of land one condition was that the purchaser should buy the timber on the land at a valuation, and that each party should appoint a valuer, who should appoint an umpire, and that, if the valuers could not agree, the umpire should value. The umpire in fact made the valuation. Held that this was a valuation and not in the nature of an award, and that an application to set it aside must be refused (In re Carus-Wilson and Greene (1886), 18 Q. B. D. 7 ; 56 L. J. Q. B. 530). 4. A lease of a farm stipulated that if the premises were sold during the term the tenant shall quit and yield up the premises, and each party should appoint a valuer to assess the compensation to be paid to the tenant. These circumstances having in fact arisen, the parties by deed referred the question of compensation to A. and B. or their umpire. Held that this was not a mere appraisement, but an arbitration within s. 17 of the Common Law Procedure Act, 1854 (In re Hopper (1867), L. R. 2 Q. B. 367; 36 L. J. Q. B. 97. See also Turner v. Goulden (1873), L. R. 9 C. P. 57; 43 L. J. C. P. 60).

5. The validity of a notice to dissolve partnership was disputed, and it was agreed that one partner should retire and that the value of his share and the question of notice (if raised) should be decided by third persons or their umpire. One of these persons died before their decision. had been arrived at, and his successor did not join in appointing an umpire. Held that this, as it was to decide upon a dispute existing at the date of reference, must be regarded as a submission to arbitration, and the Court ordered an umpire to be appointed under the Common Law Procedure Act, 1854 (Re Evans, Davies and Carrick (1870), 22 L. T. 507).

6. A building contract provided for payments on account of the price of the works during their progress, and for payment of the balance after their completion, upon certificates of the architect, and that a certificate of the architect, showing the final balance due to the contractor, should be conclusive evidence of the works having been duly completed, and that the contractor was entitled to receive payment of the final balance. The Court of Appeal (Romer, L.J., dissenting) held that the architect, in ascertaining the amount due to the contractor, and certifying for the same under the contract, occupied the position of an arbitrator (Chambers v. Goldthorpe, [1901] 1 K. B. 624; 70 L. J. K. B. 482).

7. A building agreement, authorising proceedings in case of certain defaults by the builder to be ascertained and decided on by the architect without appeal, was held not to be a submission to arbitration (Wadsworth v. Smith (1871), L. R. 6 Q. B. 332; 40 L. J. Q. B. 118. See also Jowett v. Neath R. D. C. (1916), 80 J. P. Jo. 207, and Hudson on Building Contracts, 4th ed., pp. 728-739, where the subject is discussed at length).