Page:Federal Reporter, 1st Series, Volume 10.djvu/367

 GAUCHE V. LONDON & LANCASHIBB INS. 00. 355 �according to the conditions of the policy sued on 60 days prior to the commencement of this suit. �3. The third special plea of the defendant is to the effect that it was a part of the contract of insurance, made a condition precedent to the right to maintain an action thereon, that in case of difference between the parties there should be an arbitra tion and award as to amount of loss or damage ; that there was a difference ; that there has been no arbitration or award ; and ayers willingness at all times on the part of defendants to submit the amount of loss or damage to arbi- tration. �The stipulations aa to award are as follows : �(11) " If any difference shall arise with respect to the amount of any clalm for loss or damage by fire, and no fraud suspected, such difEerence shall be submitted to arbitrators indifEerently chosen, whose award, or that of the umpire, shall be conclusive." �And— �(14) " It is further hereby expressed, provided, and mutually agreed that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery until after an award shall have been obtained, flxing the amount of such clalm in the manner above provided." �It has been urged that this stipulation is void as bemg against the policy of the law in that it withdraws the questions from the courts. I think the weight of authority is decidedly in f avor of the conclusion that parties may legally by their own agreement refer the amount of damage under a contract to arbitrators, and by a proper covenant with- draw that one question from the courts. In Scott v. Avery, 5 H. of L. Cas. 811, this was decided in 1856, and that decision has been, so far as I can ascertain, acquiesced in both in Great Britain and in this coun- try. The cases which seem to conflict with this case are those which were, or were thought to be, distinguishable from it. The doctrine there established has not been doubted. The cases to which I have been referred which were construed to be opposed to it are where there was no covenant not to sue until an award, but merely a covenant to refer. Those cases are in harmony with Scott v. Avery, as appears by the lucid statement of Baron Bramwell, in Elliot v. Royal Exchange Assurance Co. L. E. 2 Exch. (1866-1867) p. 245, and adopted by Lord Coleridge in Dawson v. Fitzgerald, 1 Law Eep. Ex. Div. (1875-1876) p. 260. That statement is as follows : ��� �