that if the insurers by their acts prevent the insured from bringing a suit within the time specified, this will amount to a waiver of the clause.1

It has long been a settled principle, both in this country and in England, that the parties to a contract can not oust the courts of their jurisdiction by any agreement that all claims shall be submitted to arbitration.2 And such a clause has been held to have no effect, although the matters in controversy have been referred to arbitrators and are still pending at the time of action brought. Courts of equity have also refused to enforce a bill for the specific performance of an agreement to refer to arbitration, or to compel a party to appoint an arbitrator under such an agreement.1 And where a case is referred to

under seal not to sue for a limited time could not be pleaded in bar, or as a release, but that the defendant must resort to his action for breach of the agreement. See also, Cuyler v. Cuyler, 2 Johns. 186; Harrison v. Close, id. 448.

1 Ames v. New York Union Ins. Co., 4 Kern. 253. The policy in this case contained two clauses. One that the loss was to be paid within ninety days after proof of the loss, and the other that suit should be brought within six months after the loss. The loss took place July 5th. The proofs were furnished July 14th. A defect in them pointed out October 7th, and supplied October 14th. The application for payment was made January 2d, when the secretary of the company said it would not be due till the 14th, when it would be made. The company having refused to pay, an action was brought on the 18th of January, and the court held that it could be maintained. See also, Grant v. Lexington F. L. & M. Ins. Co., 5 Ind. 23.

2 Kill v. Hollister, 1 Wils. 129; Thompson v. Charnock, 8 T. R. 139; Goldstone v. Osborn, 2 Car. & P. 550; Mitchell v. Harris, 2 Ves. 129; Wellington v. Mackintosh, 2 Atk. 569; Nichols v. Chalie, 14 Ves. 265; Robinson v. Georges Ins. Co., 17 Maine, 131; Hill v. More, 40 Maine, 515; Allegre v. Maryland Ins. Co., 6 Harris & J. 408; Gray v. Wilson, 4 Watts, 39; Contee v. Dawson, 2 Bland, 264; Randel v. Chesapeake & Delaware Canal Co., 1 Harring. Del. 233; Horton v. Stanley, 1 Miles, 418; Stone v. Dennis, 3 Porter, 231; Haggart v. Morgan, 4 Sandf. 198, 1 Seld. 422.

Harris v. Reynolds, 7 Q. B. 71.

♦ Wellington v. Mackintosh, 2 Atk. 569; Street v. Rigby, 6 Ves. 815; Milnes v. Gery, 14 id. 400; Blundell v. Brettargh, 17 id. 232; Gourlay v. Duke of Somerset, 19 id. 429; Wilks v. Davis, 3 Meriv. 507; Agar v. Macklew, 2 Simons & S. 418; Mexborough v. Bower, 7 Beav. 127; Copper v. Wells, Saxton, 10; Tobey v. County of Bristol, 3 Story, 800. In Halfhed v. Jenning, 2 Dickens, 702, nom. Halfhide v. Fenning, 2 Bro. Ch. 336, a bill was brought by one partner against another and the representative of a deceased partner for an account and for a production and a discovery. The defendants pleaded that there was a clause in the articles that no bill or suit should be brought respecting the partnership, until the matter should have been referred to arbitration and the arbitrator should have made his award; and the plea was sustained. This decision has generally been considered as incorrectly decided, but it appears to us not to be opposed to the doctrine of the cases above cited, and is sustained by Lord

arbitration by consent, the court have refused to order the arbitrators to proceed.1 But in England, in some late cases, the principles upon which these rules rest, have been questioned; 2 and it has been held that an agreement that the amount of damages to be recovered in an action at law, shall be first determined by arbitrators is binding, and that no action will lie till such an arbitration is had. And even if an agreement to refer a

Chancellor Sugden, in Dimsdale v. Robertson, 2 Jones & La Touche, 58. In this case, a submission had been entered into by the parties, the arbitrators were designated, and their powers and duties fully pointed out. But before they had taken any proceedings, the plaintiff filed his bill alleging that the arbitrators could not do him justice under the powers conferred upon them. It is provided in England and Ireland by statute, that after the arbitrators are appointed in pursuance of any submission to reference, containing an agreement that such submission shall be made a rule of court, etc., that the submission cannot be revoked by either party without leave of court. The chancellor held, that the bill would not lie in this case, and the whole subject of the power of a court of equity in the premises was considered at length, and the case of Half hide v. Fenning, was considered as correctly decided.

1 Crawshay v. Collins, 1 Swanst. 40.

2 In Scott v. Avery, 5 H. L. Cas. 811, 36 Eng. L. & Eq. 1, 13, Creswell, J., said: "The whole of the doctrine as to ousting the jurisdiction of the courts, appears to have been based upon the passage quoted by Parke, B., in 8 Exch. 494, from Co. Litt. 536: 'If a man makes a lease for life, and by deed grants that if any waste or destruction be done, it shall be redressed by neighbors, and not by suit or plea, notwithstanding an action of waste shall lie, for the place wasted cannot be recovered without plea.' The case is not to be found in the Year Book, 3 Edw. 3, referred to, but is in Fitz. Ab., Waste,' pl. 5; and the whole of it is given in Co. Litt. 536. It seems, that this decision proceeded on the ground that the neighbors could not redress the wrong done; that it could only be done by plea; therefore, notwithstanding the deed, an action of waste would lie. There is not a word leading to the supposition, that an action would have been maintainable, if the neighbors 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. But in subsequent cases, it has been considered to have established that parties cannot by agreement, oust the jurisdiction of the courts of the realm."

And in Russell v. Pellegrini, 6 Ellis & B. 1020, 38 Eng. L. & Eq. 99, Lord Campbell, C. J., said: "For some time the courts had a great horror of arbitrations, and doubts were entertained, whether a clause for referring matters in dispute, introduced in an agreement, was not illegal. But I cannot imagine why parties should not be allowed to settle their differences in the manner which they think most convenient. When a cause of action has arisen, the courts are not to be ousted of their jurisdiction; but parties may come to an agreement that they shall be no cause of action, until their differences have been referred to arbitration."

8 In Scott v. Avery, 8 Exch. 487; 20 Eng. L. & Eq. 327, the policy contained the clause : "that the sum to be paid to any suffering member for any loss or damage, shall, in the first instance, be ascertained and settled by the committee; and the suffering member, if he agrees to accept such sum in full satisfaction of his claim, shall be

case to arbitration is invalid, so that it cannot be pleaded in bar to a suit, yet it has been held, that an action for damages will lie for the breach.1

In England, it is now provided by statute, that whenever there is an agreement in any written instrument, to refer a cause to arbitration, and a suit is brought, the court may grant a rule to stay proceedings at the request of the defendants.2

entitled to demand and sue for the same, as soon as the amount to be paid has been ascertained and settled and not before, which can only be claimed according to the customary mode of payment in use by the society." The arbitration clause followed immediately after this, which provided that in case of any difference between the committee and any member relative to the settlement of any loss or damage or any other matter relating to the insurance, arbitrators should be appointed, etc., and it was also provided, that "the obtaining the decision of such arbitrators on the matters and claims in dispute, is hereby declared to be a condition precedent to the right of any member to maintain any such action or suit." The defendants' plea set forth that a difference had arisen between the committee and the insured relative to the extent of the loss, that the amount had, therefore, never been ascertained and that the defendants were, and always had been ready and willing to have the same decided by arbitrators, but the plaintiff was not ready and willing so to do, and that the loss had not been settled or ascertained by arbitrators. On demurrer, the Court of Exchequer gave judgment for the plaintiff. But in the Exchequer Chamber the judgment was reversed, on the ground, that the provisions mentioned did not oust the courts of their jurisdiction, but merely provided that the amount should be ascertained in a certain way, before the party was at liberty to sue; and that this was in the nature of a condition precedent. Avery v. Scott, 8 Exch. 497, 20 Eng. L. & Eq. 334. This decision was affirmed in the House of Lords, 5 H. L. Cas. 811, 36 Eng. L. & Eq. 1, Martin, B., Alderson, B., and Crompton, J., dissenting. Lord Chancellor Cranworth, stated the law, as follows: "If I covenant with A. not to do a particular act, and it is agreed between us that any question which might arise, should be decided by an arbitrator without bringing an action, then a plea to that effect would be no bar to an action; but if we agreed that J. S. was to award the amount of damages to be recoverable at law, then if such*arbitration did not take place, no action could be brought."

1 Livingstone v. Ralli, 5 Ellis & B. 132, 30 Eng. L. & Eq. 279. This doctrine was doubted in Tattersall v. Groote, 2 B. & P. 131.

2 17 & 18 Vict. c. 125, § 11. This statute provides, that "Whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them 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 at law or suit in equity against the other party or parties or any of them, or against any person or persons claiming through or under him or them in respect of the matters so agreed to be referred or any of them, it shall be lawful for the court in which such action or suit is brought or a judge thereof, on application by the defendants or any of them 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,

In this country, it has been held, that if the insurance company takes possession of the vessel and proceeds to repair her, with the view thus to make good the loss, this amounts to a waiver of the submission to arbitration.1

SECTION III.

OF THE EVIDENCE.

There are few rules or usages as to the evidence admissible in actions on policies which are peculiar to these contracts. It may be useful, however, to state a few of the questions which have passed under adjudication.

If a part-owner is insured, the presumption is that the insurance is on his own separate interest; and the other part-owners have no claim against him for any part of what he recovers, unless on evidence that he insured for them.2

It is often important to prove the correctness of foreign records, judgments, or decrees; as a general rule, they must be under seal, and it is not sufficient to prove the handwriting of the officers signing them. The great seal of the country is said to

at the time of the bringing of 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 such action or suit on such terms as to cost and otherwise as to such court or judge may seem fit; Provided always, that any such rule or order may at any time afterwards be discharged, or varied as justice may require." See Russell v. Pellegrini, 6 Ellis & B. 1020, 38 Eng. L. & Eq. 99.

1 Cobb v. New England Mut. M. Ins. Co., 6 Gray, 192, 204.

2 Garrels v. Hanna, 5 Harris & J. 412.

8 Appleton v. Braybrook, 2 Stark. 6, 6 M. & S. 34; Black v. Braybrook, 2 Stark. 7, 6 M. & S. 39. If the court has no seal, it has been said that the record may be authenticated in another manner. Alves v. Bunbury, 4 Camp. 28. In Cavan v. Stewart, 1 Stark. 525, a foreign judgment obtained in Jamaica, was attempted to be proved by a certificate of the governor of the island, to which the great seal of the island was appended, that A. was secretary of the island and notary-public, by a certificate of A. as notary-public, that the person who signed the copy of the judgment was the clerk of the court, and by the judgment itself. The copy was not under seal, but it appeared that the court had a seal which was so much worn as to be incapable

prove itself,1 but to come within this rule, it must be a government which is recognized by the executive and legislative departments of the country where the evidence is sought to be introduced.2 The seal of an admiralty court is said to prove itself, but the seal of a municipal court must be proved by evidence.4

The certificate of a foreign consul would have little or no weight, and indeed, would not, of itself, be admissible in our courts. Nor would the certificate of an American consul be of greater efficacy, unless in cases in which our statutes provide

of making any impression, though it was sometimes used for some purposes, but not for the attestation or exemplification of judgments. Lord Ellenborough held, that the proof offered was insufficient.

Although mere words or lines in writing might not constitute a seal, yet an actual seal stamped upon paper of sufficient tenacity to receive and retain the impression, must be deemed a seal in the technical sense, and within the strict definition of the common law." Ross v. Bedell, 5 Duer, 462; Curtis v. Leavitt, 17 Barb. 309, 318. In Talcot v. Delaware Ins. Co., 2 Wash. C. C. 449, the copy of the record was not sealed, but there was a flourish of the pen on the margin of each page. In the absence of any proof on the point, whether the court had or had not a seal, the court held that this was not sufficient.

1 Anonymous, 9 Mod. 66; Lincoln v. Battelle, 6 Wend. 475. But the certificate in such a case, must be given by a party having charge of the record. Vandervoort v. Smith, 2 Caines, 155.

2 United States v. Palmer, 3 Wheat. 610.

Green v. Waller, 2 Ld. Raym. 891; Thompson v. Stewart, 3 Conn. 171. In this case, the decree of a vice-admiralty court purported to be under the seal of the court and to be certified by the deputy registrar. It was held, that the seal proved itself. In some cases more formal proof has been made, though it does not appear that it was required. See Yeaton v. Fry, 5 Cranch, 335, where the copies of the records of the court were certified under the seal of the court by the deputy registrar, and he was certified by the judge of the court, and he in turn by a notary-public. In Gardere v. Columbian Ins. Co., 7 Johns. 514, a sentence of condemnation under the seal of the court, signed by the actuary in the absence of the registrar, accompanied with a deposition of a witness proving the seal and signature, was held to be a sufficient authentication. The case of Catlett v. Pacific Ins. Co., 1 Paine, C. C. 594, where Mr. Justice Thompson held, that the decree of a foreign vice-admiralty court certified by a person as registrar, and a certificate of the American consul that this person was the registrar, were not admissible in evidence. But in this case, the impression of the seal was so effaced as not to be legible, and was not considered as a seal.

De Sobry v. De Laistre, 2 Harris & J. 191, 218; Henry v. Adey, 3 East, 221, 4 Esp. 228. In Buttrick v. Allen, 8 Mass. 273, a copy of the record, under the scal of the court and certified by the clerk, was offered in evidence, together with the affidavit of a person who compared the copy with the record and saw the clerk affix the seal, of these facts, and that the person purporting to be the clerk, was the clerk. This was held to be admissible.