Queen's Bench, on the reference failing, asserted the power of directing judgment to be entered up and execution to issue for the full amount of the verdict taken, unless the defendant would enter into a new submission; though it was said to be a matter of discretion when the court would exercise the power (g).

Where the arbitrator allowed the original time to elapse without enlargement, the court considering the reference beneficial, thus compelled the defendant to consent to a fresh enlargement (h). They refused, however, thus to compel a reference, but sent the case down to a new trial, where, through neglect of the plaintiff's attorney, the time for making the award had elapsed before the order of reference had been delivered to the arbitrator (i). Nor would they send a case back to the arbitrator, where one award had been made and afterwards set aside as defective, for the defendant might reasonably have no confidence that a second award of the same arbitrator would be more valid (k).

The Court of Exchequer, however, seemed to be of opinion, that when a general reference proved abortive, they had no power over a defendant to force him to refer again, and consequently could not exercise a discretion (1).

PART III.

CH. XII. S. 1.

refer, court

If the defendant were the party who pressed for a fresh Plaintiff recourse to arbitration, and the plaintiff refused to agree, the refusing to case must have gone down to a new trial; for though the not enter court could set aside the verdict entered for the plaintiff, defendant. they had no authority to allow a verdict to be entered for

the defendant (m).

verdict for

Similar to the rule in law was the practice in equity. For Reference there, when a suit was referred, and the reference proved in equity profailing, suit abortive, the suit proceeded as if there had never been a ceeds. recourse to arbitration (n). There was sometimes in orders of Chancery referring a suit, a provision, "any of the parties to be at liberty to apply to the court as they shall be advised."

CH. XII. S. 1.

PART III. This reserved liberty extended two ways. It authorized, if an award were made, proceedings on the award, and if the arbitration did not proceed, an application as if the reference had not been made (o).

Clause re

served liberty to apply.

Abortive

award on

On a reference by order of Quarter Sessions, if it becomes reference by impossible for an award to be made (p), or if the award made be set aside (q), the Queen's Bench Division may order the Court of Sessions to enter continuances, and hear the appeal.

Quarter
Sessions.

Under the

Lands Clauses
Act.

If, when a question of compensation is referred to arbitration under the Lands Clauses Consolidation Act, 1845, the arbitrators or umpire do not make their award within the three months allowed them respectively, or if no final award be made, the question of such compensation shall be settled by the verdict of a jury under the statute (»).

PART III.

CH. XII. S. 2. No action

when submis

SECTION II.

ENFORCING IN EQUITY A CONTRACT DEPENDENT ON AN

ABORTIVE REFERENCE.

A submission to arbitration is often made respecting some of the terms of a contract, as, for instance, for the sale or lease of lands. When the arbitrators are to decide that sion of essen- which is of the essence of the contract, and they fail to do so, and there has been no part performance, neither the submission nor the contract can be carried out in equity.

tial terms and

no part performance.

Reference

failing, equity

not divide

estate nor

The Court of Chancery could not be substituted for the arbitrators to make a division of an estate (s). On the like fix purchase principle, when estates were to be sold at a price to be fixed by arbitrators, and they could not agree in their valuation, or in the appointment of an umpire, the Court of Chancery

price.

(0) Crawshay v. Collins, 3 Swanst. 90.

(p) 12 & 13 Vict. c. 45, s. 14. See Appendix of Statutes.

(9) 12 & 13 Vict. c. 45, s. 13. See Appendix of Statutes.

(r) 8 & 9 Vict. c. 18, s. 23. See Appendix of Statutes.

(8) Cooth v. Jackson, 6 Ves. 11.

would refuse to direct the master, or any other person, to ascertain the price, and compel the intended purchaser to take the estate at that price; because his only agreement was, to take it at a price ascertained in a specified mode, and to make him take it at a price determined in any other way would be to make him do something which he had never agreed to do. For the price is of the very essence of a contract of sale, and when the arbitrators do not fix it there is no contract. The case of an agreement to sell at a fair valuation is essentially different. In that case no particular means of ascertaining the value is pointed out, and there is nothing, therefore, precluding the court from adopting any means adapted to that purpose (t).

A railway company having agreed with a landowner to make all such necessary crossings as his surveyor should, within one month after their taking the land, notify to them, refused to make the crossings which the surveyor, after the month had elapsed, notified to them to make; it was held that there was no contract which the court could enforce (u).

PART III.

CH. XII. S. 2.

whom esti

submitted for

By agreement, a railway company's engineer was to submit Death of to the landowner's agent "for approval" his estimate of the agent to cost of making a road, and in case of difference the amount mate is to be was to be determined by B., and the amount, when agreed or approval. determined, was to be paid to the landowner. The estimate was not sent in till after the death of the agent. It was held that the submission of the estimate for the agent's approval was of the essence of the contract, that B. had no authority to act, and that the court could not enforce a specific performance (x).

Even where the arbitrators had agreed on their award, and Death of put down the terms in writing, but one of the parties died party, award drawn but before they had executed the award, and thus consequently not executed. revoked their authority, the Court of Chancery refused to

(t) Milnes v. Gery, 14 Ves. 400; Pritchard v. Overy, 1 J. & W. 396; Tillet v. Charing Cross Bridge Co., 26 Beav. 419; Vickers v. Vickers, L. R. 4 Eq. 529; Richardson v. Smith, L. R. 5 Chanc. 648.

(u) Earl of Darnley v. London, Chatham, and Dover Rail. Co., 3 De G. J. & S. 24, S. C. 36 L. J. Ch. 404, S. C. House of Lords, L. R. 2 H. L. 43.

(x) Firth v. Midland Rail. Co., L. R. 20 Eq. Cas. 100, S. C. 44 L. J. Chanc. 538.

PART III.

CH. XII. S. 2.

Contract enforced when submission

enforce the contract according to the price which the arbitrators had agreed to allow (y).

But if the matter of the submission be not of the essence of the contract, and especially if there have been a part pernot of essence formance, a court of equity will enforce the contract, notwithand part performance. standing the reference has been ineffectual. Thus, where a party who had conveyed certain estates as security for a debt, the amount of which was to be ascertained by arbitration, on the reference failing by the death of the arbitrator, took proceedings in equity to have his lands conveyed to him, the court referred it to the master to ascertain the amount of the charge (). So, also, where a clause in a contract provided that the terms of a lease, to be granted by one party to the other, were to be settled by a party named, the court, being of opinion that the agreement was binding and concluded, and such as ought to be carried into execution, and that the agency of that particular individual was not of the essence of the contract, but only connected with matter of detail, decreed a specific performance, and directed the master to settle the terms of the lease (a).

When sub

mission not of essence.

Terms of separation.

When part performance,

mission of essence of contract.

Where a divorce suit was agreed to be settled on terms and a draft deed of separation was prepared by an arbitrator, the parties disagreeing, and the wife prayed for specific performance of the agreement by the executors of the deed as settled or modified as the court should think fit, Kay, J., deciding that the arbitrator had exceeded his authority in providing as he did that the wife should have the custody of the children, ordered that the draft should be amended, and the deed drawn up and executed with a clause giving the wife certain access to the children, but not their custody (b).

If there have been a part performance of the contract, though sub though the submission which fails be respecting the price, it will sometimes be enforced, and the duty of the arbitrator undertaken by the court. When a party agreed for a lease of certain lands, the rent to be fair and reasonable, and as arbitrators to be named should fix, and he entered into the lands and held possession of them many years, and expended

(y) Blundell v. Brettargh, 17 Ves. 232.

(z) Cheslyn v. Dalby, 2 Y. & C. 170.

(a) Gourlay v. Duke of Somerset, 19 Ves. 429. See Rowe v. Wood, 1 J. & W. 315, 346.

(b) Evershed v. Evershed, 46 L. T. N. S. Ch. D. 690.

money on them: the reference proving abortive, the Court of Chancery referred it to the master to ascertain what the fair rent should be (c).

PART III.

CH. XII. S. 2.

Where two partners had agreed that on the determination Valuation of of the partnership one should purchase the share of the other partnership. at a valuation to be made by two persons, one to be appointed by each partner, and the partnership, after having been carried on for some time, was determined, it was held that though the valuation could not be made because no umpire was provided, this court would carry out the agreement, and of itself ascertain the value of the share, as the determination of the price by valuers was not of the essence of the agreement (d).

Act of arbi

trator not part perform

tract.

preventing award being

made in time.

Acts done by the arbitrators towards the execution of their duty, such as surveying the lands, will not be considered acts of part performance of the agreement, so as to sustain the bill ance of confor specific performance (e). When the reference becomes abortive in consequence of Contract enthe fault of a party to the submission, equity has been known forced, party to interfere and enforce it against him. Thus, when on an agreement to sell lands at a valuation to be made before a certain day, the vendor refused to allow the referees to enter on the lands to value them, so that no price was fixed within the time limited, the Vice-Chancellor decreed that the valuation should be made by them, as if no time had been limited, and that the contract should be carried into execution according to such valuation; for though time is as essential in equity as in law, yet in equity a defendant is not permitted to set up a legal defence which has grown out of his own misconduct (f).