refer. agreement does not oust the jurisdiction of the ordinary legal tribunals to entertain an action respecting the matters. in dispute which are agreed to be referred, and constitutes no answer or defence to an action brought respecting those matters (a). An action for a breach of a covenant or agreement to refer disputes to arbitration would not, in general, serve any useful purpose, as the damages could only be nominal; unless the performance of the agreement was secured by a stipulation for liquidated damages in case of breach (b). A court of equity will not entertain suits for the specific performance of such agreements; nor is an agreement to refer a dispute to arbitration a good answer to a bill in equity respecting the matter referred (c). Staying By an enactment of the C. L. P. Act, 1854, 17 & 18 Vict. proceedings after agree. c. 125, s. 11," whenever the parties to any deed or instrument ment to in writing shall agree that any then existing or future differences between them shall be referred to arbitration, and any one of the parties so agreeing shall nevertheless commence any action at law or suit in equity against the other party or parties in respect of the matter so agreed to be referred, it shall be lawful for the court in which the action or suit is brought, or a judge thereof, on application by the defendant, 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, and that the defendant was at the time of bringing such action or suit, and still is, ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in the action or suit, on such terms as to costs and otherwise, as to such court or judge may seem fit” (d). Arbitration made a condition It may be validly stipulated as part of a contract that, before any right of action can arise under the contract, it (a) Livingston v. Ralli, 5 E. & B. 132; 24 L. J. Q. B. 269; see Thomas v. Fredricks, 10 Q. B. 775; Cooper v. Shuttleworth, 25 L. J. Ex. 114. (b) See Street v. Rigby, 6 Ves. 814. (c) Street v. Rigby, 6 Ves. 815; South Wales Ry. Co. v. Wythes, 5 De G. M. & G. 800; Agar v. Macklew, 2 S. & S. 418. (d) See Russell v. Pellegrini, 6 E. & B. 1020; Pennell v. Walker, 18 C. B. 651; Blyth v. Lafone, 1 E. & E. 435; 28 L. J. Q. B. 164; Wickham V. Harding, 28 L. J. Ex. 215; Randegger v. Holmes, L. R. 1 C. P. 679; Seligmann v. Le Boutillier, ib. 681. in contract. shall be a condition precedent that the sum to be claimed, or precedent the amount of damages to be recovered, shall be settled by a reference to arbitration, and then the settlement by arbitration becomes a condition precedent which must necessarily be fulfilled before a right of action upon the contract can arise (a). A policy of insurance on a ship contained the condition that the sum to be paid for loss or damage should be settled in a specified manner, and if a difference should arise relative to the settling any loss or damage, or any other matter relative to the insurance, it should be settled by arbitrators appointed in manner therein mentioned, and it was provided that no action should be brought on the policy until the matters in dispute should have been referred to and decided by the arbitrators, and then only for such sum as the said arbitrators should award, and the obtaining the decision of such arbitrators was declared in the policy to be a condition precedent to the right to maintain any action or suit; it was held that the condition was legal, and that no action could be maintained until it had been fulfilled (b). A policy of insurance against fire contained the condition, that in case any difference or dispute should arise between the insured and the company touching the loss or damage, such difference. should be referred to arbitration, and the award of the arbitrators be conclusive on all parties; it was held that the reference to arbitration of the amount of the loss was not a condition precedent to the right to sue on the policy, and did not oust the jurisdiction of the court in such action (c). By a policy of insurance against death or injury by accident the insurers were to pay such sum by way of compensation as should appear just and reasonable and in proportion to the injury received, such sum to be ascertained in case of difference in the manner provided by the conditions in (a) Scott v. Avery, 5 H. L. C. 811; 8 Ex. 487; 25 L. J. Ex. 308; per Bramwell, B., Horton v. Sayer, 4 H. & N. 643, 651; 29 L. J. Ex. 28, 33; Braunstein v. Accidental Death Ins. Co., 1 B. & S. 782; 31 L. J. Q. B. 17; Roper v. Lendon, 1 E. & E. 825; 28 L. J. Q. B. 260; Scott v. Corporation of Liverpool, 3 De G. & J. 334. (b) Scott v. Avery, 8 Ex. 487; 5 H. L. C. 811; 25 L. J. Ex. 308; and see Goldstone v. Osborne, 2 C. & P. 550; Tredwen v. Holman, 1 H. & C. 72; 31 L. J. Ex. 398. (c) Roper v. Lendon, 1 E. & E. 825; 28 L. J. Q. B. 260. dorsed A contract for the performance of certain works to be paid for in a certain manner contained a proviso that no sum should be considered due, nor should the contractor make any claim on account of any work executed by him, unless the engineer of the works should certify the amount thereof and that the contractor was reasonably entitled thereto; it was held that the claim of the contractor was left entirely to the judgment of the engineer, and that no right at law or in equity could arise without his decision (c). 522 CHAP. IV. SECT. XI. STATUTES OF LIMITATION. Statutes limiting Actions :- on Simple Contracts.... 521 Statutes: Effect of Renewal 541 Statutes of THE right of action for a breach of contract may be barred by the Statutes of Limitation, which prescribe a certain Limitation. (a) Braunstein v. Accidental Death Insurance Co., 1 B. & S. 782; 31 L. J. Q. B. 17. (b) Brown v. Overbury, 11 Ex. 715; 25 L. J. Ex. 169. (c) Scott v. Corporation of Liverpool, 3 De G. & J. 334; 28 L. J. C. 230. limit of time from the vesting of the right of action within which the action must be commenced. tracts. The principal enactments respecting the limitation of ac- Simple contions upon contracts are the following:--Actions founded upon simple contracts are included, with other actions, in the statute 21 Jac. I. c. 16, s. 3, which, so far as it relates to simple contracts, enacted "that all actions of account and upon the case, other than for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty, all actions of debt for arrearages of rent,-shall be commenced and sued within the time and limitation hereafter expressed, and not after, that is to say, the said actions upon the case, and the said actions for account, and the said actions for debt,-within six years next after the cause of such actions or suit, and not after." The actions upon the case in the above enactment include actions of assumpsit, which is the form of action appropriate for a breach of a simple contract other than a mere debt (a). The exception of actions of account between merchants has been repealed by the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 9 (b). under seal Actions founded upon contracts under seal and by spe- Contracts cialty are limited by the statute 3 & 4 Wm. IV. c. 42, s. 3, and by spewhich enacted "that all actions of debt for rent upon an in- cialty. denture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon. any award where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages, or sums of money given to the party grieved by any statute now or hereafter to be in force, -shall be commenced and sued within the time and limitation hereinafter expressed and not after; that is to say, the said actions of debt for rent upon an indenture of demise, or covenant, or debt upon any bond or other specialty, actions (a) Battley v. Faulkner, 3 B. & Ald. 288, 294; Chandler v. Vilett, 2 Wms. Saund. 120. (b) See Inglis v. Haigh, 8 M. & W. 769; per Tindal, C. J., Cottam v. Partridge, 4 M. & G. 271, 283. Debts created by statute. of debt or scire facias upon recognizance, within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, within two years after the cause of such actions or suits, but not after; and the said other actions within six years after the cause of such actions or suits, but not after; provided that nothing herein contained shall extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited." Before the passing of this statute, contracts by specialty were presumed by law to have been satisfied, if it did not appear that something had been done within twenty years to acknowledge them; and, accordingly, in actions upon such contracts, the Court would direct the jury to presume satisfaction in the absence of proof of such acknowledgment. The above enactment put an end to the doctrine of presumptive satisfaction, and substituted a peremptory bar to actions on contracts by specialty after twenty years, subject to the express provision as to acknowledgment contained in the 5th section of the statute (a). Actions for debts created by statutes are, in general, considered as founded on specialty, and are subject to the limitation of the above enactment (b); thus, an action by a company for calls under "the Companies Clauses Consolidation. Act, 1845," (8 Vict. c. 16, s. 25), was held not to be an action on a contract without specialty within the meaning of the before mentioned Statute of Limitation of James which prescribed six years as the limit for bringing such actions (c); and it has also been held that such calls constitute specialty debts in the administration of the estate of a deceased shareholder (). "The Joint Stock Companies Act, 1857," (20 & 21 Vict. c. 14, s. 13), expressly enacted that calls made under that statute on a contributory in the process of winding up a company should be deemed to be specialty debts due from such contributory to the company; and (a) Post, p. 542; Sanders v. Coward, 15 M. & W. 48, 57; Morley v. Morley, 5 De G. M. & G. 610, 625; 25 L. J. C. 1, 6; Roddam v. Morley, 2 K. & J. 336, 342; 25 L. J. C. 329, 331; 1 De G. & J. 1. (b) See Jones v. Pope, 1 Wms. Saund. 36; ante, p. 96. (c) Cork and Bandon Ry. Co. v. Goode, 13 C. B. 826. (d) Wentworth v. Chevill, 26 L. J. C. 760. |