acted on by Lord Eldon in Wood v. Griffith, (k) where his lordship enforced the specific performance of an award which ordered the sale of an estate under circumstances which greatly depreciated its value.

§ 1554. Where, on the other hand, the award is more than unreasonable,-where the award is in excess of the authority given to the arbitrator, the court, of course, refuses to enforce it. In a case that came before Knight Bruce and Turner, L. JJ., the award was objected to as unreasonable, but it was contended on the other side that the court could not entertain the objection. Turner, L. J., after expressing his dissent from the observations of Lord Eldon in Wood v. Griffith,(7) said, "If it be a fair subject of discussion and consideration, whether one course or another course be the right one to be taken by parties who have submitted their differences to arbitration, and have said that they will abide by the decision of the arbitrator, I might agree that the judgment of the arbitrator upon that question must decide the point. But here the judgment of the arbitrator goes to the length of destroying the right of one of the parties to the agreement, though the parties never authorized Mr. Carpmael to decide that any one of them had no right, and should acquire no interest in the subject in dispute, but only agreed that he should determine the mode in which their rights and interests should be regulated. It seems to me, therefore, that, if it was necessary to decide this question upon the point of unreasonableness, that point alone would be sufficient to decide it."(m)

§ 1555. The interference of the court in these cases being in exercise not of any jurisdiction peculiar to awards, but of its ordinary jurisdiction as applied to the specific performance of contracts, it follows that many, if not all, the principles applicable to ordinary actions of that nature must apply.(n)

§ 1556. Where, therefore, the contract contained in the submission is such in its character as, whether from the unreasonableness, unfairness or imprudence, the court would not specifically enforce, this will prevent its interference in respect of the award founded on it. (o)

(k) 1 Sw., 43. See supra, § 400.

(2) 1 Sw., 43.

(m) Nickels v. Hancock, 7 De G. M. & G.,

(n) Nickels v. Hancock, 7 De G. M. & G, 300. (0) S. C. See supra, § 400.

1557. Nor can the court interfere where the award is excessive or defective: not if it be excessive, for so far the arbitrator has gone beyond his authority, and there is no binding contract between the parties: not if it be defective, because the parties had contracted to be bound by his decision on the whole, and not on part of the matters submitted to him.(p)

1558. In a case where the submission was of all matters in difference, and the defendant omitted to submit questions which he alleged ought to have been decided, he was naturally held to be precluded from so doing by the course which he himself had pursued.(q)

$ 1559. Where the award is uncertain on its face, and that uncertainty is not removed by the arbitrator's evidence, the court refuses specific performance of the contract, though the plaintiff may waive all claims beyond the award as construed against him.(7)

1560. Where the plaintiff has first sought to set the award aside, it is doubtful whether he can afterwards turn round and maintain an action for the specific performance of it, especially where there has been a considerable lapse of time. (s)

$ 1561. The cases which have arisen of misconduct or impropriety of conduct on the part of persons appointed to value a rent, or the amount of purchase-money, throw light on the way in which the court would regard like misconduct on the part of persons more accurately described as arbitrators. (t)

(p) Nickels v. Hancock, 7 De G. M. & G., 300; Wakefield v. Llanelly Railway and Dock Co, 3 De G. J. & S., 11.

(q) Hawksworth v. Brammall, 5 My. & Cr, 281

(r) Wakefield v. Llanelly Railway and Dock Co., De G. J. & S., 11.

(8) Blackett v. Bates, L. R. 1 Ch., 117, reversing S C. 2 H. & M., 270, 610.

(t) See Emery v. Wase, 8 Ves., 505; Chichester v. McIntyre, 4 Bl. N. S., 78: Parken v. Whitby, T. & R., 366; Ormes v. Beadel, 2 Gif., 166, 2 De G. F. & J., 333.

1

CHAPTER VIII.

OF CONTRACTS TO REFER TO ARBITRATION.

§ 1562. With regard to contracts to refer to arbitration, it is clear that the court will not entertain actions for their specific performance,' a principle in the first place, it seems, acted upon by Lord Thurlow in a case of Price v. Williams, (a) and which has been since well established. (b) In one case Knight Bruce, and Turner, L. J. J., upon this amongst other grounds, refused to compel the specific execution of a bond to refer to arbitration. (c)

§ 1563. In like manner we have seen that, where there is a contract to buy at a price to be fixed by persons to be named, the court can neither compel a defendant to name a valuer, nor compel a valuer to value, nor compel the defendant to sell at any other value. (d)

$ 1564. There is, however, a case before Leach, V. C., somewhat briefly reported as to its circumstances, in which, the vendor refusing to permit the referees to come upon the land, the court compelled him to permit the valuation. (e)*

(a) Referred to in 6 Ves, 818.

(b) Street v. Rigby, 6 Ves., 815; per Grant, M. R., in Gourlay v Duke of Somerset, 19 Ves., 429; Agar y Macklew, 2 S. & S., 418; Gervais v Edwards, 2 Dr. & War, 80. See too Russell on awards (5th ed.), 63 et seq. (c) South Wales Railway Co. v. Wythes, 5

De G. M & G., 880.

(d) Wilks v. Davis, 3 Mer., 507; Darbey v. Whitaker, 4 Drew, 134; Vickers v. Vickers, L. R. 4 Eq., 529; supra, § 338 et seq.

(e) Morse v. Merest, 6 Mad., 26. See too supra, § 1125.

1 It is well established that these agreements will not be enforced. And it has been said that courts of equity never decree the specific performance of any agreement, when the decree would be a vain and imperfect one: liable at any moment to be defeated by the act of the parties themselves Tobey v. The County of Bristol, 3 Story, 800; see, also, Connor v. Drake, 1 Ohio St. R., 166. 2 Connor v. Drake, 1 Ohio St., 166; Tobey v. County of Bristol, 3 Story, 800; Noyes v. Marsh, 123 Mass., 286. The court will determine what is a fair value. Dunnell v. Ketletas, 16 Abb. Pr., 205. The lease made it optional with the lessor to pay for improvements to be valued by arbitrators, or to renew the lease; he refused to do either. Held, that although specific performance could not be decreed, yet as the court had acquired jurisdiction it would award compensation for the value of the improvements. Hopkins v. Gilman, 22 Wis., 476.

The award of arbitrators will be enforced.] Specific performance of an award of arbitrators will be enforced; e. g., that land be conveyed, a boundary line adopted, securities assigned, or a lease be renewed at a fixed rent; this is true, although the award has not been made the order of the court, and although the agreement for arbitration names a penalty, which the losing party offers to pay. Whitney v. Stone, 23 Cal., 275. An award supposes an agreement

1565. Though the court will thus refuse specifically to enforce references to arbitration, an inequitable refusal of a plaintiff to make such a reference may disentitle him to the aid of the court, on the principle that he who seeks equity must do equity. Thus, where a deed was executed which created a lien for the amount of a solicitor's bills and advances, the amount of which was to be settled by arbitration, and the arbitrator died before the award was made; in a suit seeking the reconveyance of the property, Alderson, B., held that the contract between the parties was composed of two distinct parts-the first admitting that some balance was due to the solicitor, and the second, a contract for a specific mode of ascertaining that balance; that the latter part alone had failed; that the former part remained entire, and that the court would not decree a reconveyance without the plaintiff's consenting to do equity by having the accounts taken by the master. (f)

§ 1566. Moreover, under the common law procedure act, 1854 (17 & 18 Vict., c. 125, s. 11), where any parties to any instrument in writing thereafter made or executed agree to refer any past or future differences to arbitration, and any party so agreeing, or any person claiming under such party, nevertheless commences any action against the other party or parties, or any of them, or against any person claiming under him or them in respect of any of the matters so to be referred, the court or a judge, on applica

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

between the parties, and contains no more than the terms of that agreement ascertained by a third person. Penniman v. Rodman, 13 Metc., 382; Thompson v. Deans, 6 Jones' Eq.. 22. Where the award is valid, both parties are concluded by it, and the validity of the partition cannot be drawn in question. Emans v. Emans, 14 N J. Eq., 114. Specific performance of an award will be decreed where the petitioner cannot obtain, by a verdict, all that it was the object of the award to give him Kirksey v. Fike, 27 Ala., 32; Jones v. Blalock, 31 Ala., 180. But an award will not be supported, merely for the payment of money, which can be recovered at law, or by the ordinary proceedings upon the award. Turpin v. Banton, Hardin (Ky.), 312; Howe v. Nickerson, 14 Allen, 400; Babier v. Babier, 24 Me., 42: contra, see Wood v. Shepherd, 2 Patton & Heath (Va.), 442.

Discretion as to awards.] The court will exercise a sound discretion in the enforcement of awards, and equity will not interfere when objections to the enforcing of an award appear upon its face, or otherwise. Backus' Appeal, 58 Pa. St., 186.

Lien of an award.] Where the amount fixed by an award is to be a lien upon property, the lien attaches upon the making of the award and furnishes an element of equity jurisdiction. Memphis and Charl. R. R. Co. v. Seruggs, 50 Miss., 284; see Overbee v. Thrasher, 47 Ga., 10.

tion by the defendant or defendants, or any of them, after appearance and before pleading, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to the agreement, and that the defendant was, at the time of bringing the action, and still is, ready and willing to join in all necessary and proper acts for causing such matters to be decided by arbitration, may stay all proceedings in the action on such terms as to the court or judge may seem fit. Under this enactment orders have been made which have indirectly the effect of compelling the plaintiff specifically to perform the contract to refer to arbitration. (9).

(g) For cases under this section in the Court of Chancery and in the Chancery Division, see Willesford v. Watson, L. R. 14 Eq., 572; 8 Ch., 473; Plews v. Baker, L. R. 16 Eq., 564;

Gillett v. Thornton, L. R., 19 id., 599; Newton v. Taylor, id., 14; Law v. Garrett, 8 Ch. D., 26.