But in a later case, the doctrine, "that the bill ought to state that it had become necessary for the information of arbitrators that there should be a discovery," has been over-ruled; and it has been decided that, notwithstanding such a clause in articles of agreement, a bill will lie to obtain a discovery for the purpose of enabling the plaintiff to support an action at law.

The plaintiffs,' as partners in the Cornish Copper Company, in the business of smelting copper ore, filed their bill against the defendants as partners in the Cornish Metal Company, merely praying a discovery, and stating that by articles of agreement made between the defendants on behalf of themselves and the rest of the Cornish Metal Company on the one part, and several other persons, and the plaintiffs in the Cornish Copper Company, on the other, the defendants had agreed from time to time during the term of seven years to deliver to the Smelting Company a certain share of all the copper ore which should be procured or purchased by the defendants in the county of Cornwall, in certain specific proportions, that the plaintiffs should smelt it, and dispose of it in the manner described, and that the defendants should pay for it, at the usual times, the customary allowance being first made in the manner particularly described,—and that no copper should be delivered by the defendants for the purpose of being manufactured by any person whomsoever other than the Smelting Company.-The bill further stated that the defendants having entered into partnership, or into some contract with one Thomas Williams, who was then concerned in smelting and manufacturing copper

1 Michel and others v. Harris 2 Vez. Jun. 129.

and others, 4 Browne, 311.

ore and copper, had discontinued delivering copper ore to the plaintiffs, and had delivered large quantities to the account of Williams, to the great detriment of the plaintiffs, and in direct violation of the agreement.— The bill particularly charged that the defendants ought to discover the several transactions between them and Williams, respecting the delivering and manufacturing of such copper ore and copper, and the quantity of copper ore so by them had and purchased during the time mentioned, and smelted and manufactured at other works and mills than those of the plaintiffs, and the value and amount of the profits, which would have arisen to them, had they been permitted to smelt and manufacture their proper shares, according to the / articles of agreement.-The bill likewise charged that the defendants had in their custody several books, papers, accounts, writings, or letters respecting such matters, and tending to shew that some such agreement, as alleged, existed between them and Williams, and that from these it would appear that the defendants had sold very large quantities of copper ore obtained within the county of Cornwall, and had procured it to be smelted and manufactured at other mills than those belonging to the plaintiffs, and that without such a discovery the plaintiffs were totally unable to proceed at law against the defendants to recover a compensation for such breaches of the agreement.

The defendants pleaded that by the articles of agreement mentioned in the bill, it was agreed that in case any variance or dispute should at any time thereafter arise between the parties, respecting the construction of any of the clauses therein contained, or any of their dealings, or transactions, under the said

C

the other, in a certain sum penal, on condition to be void on performance of the award; but it is not essentially necessary that they should be so given; they may be given to a third person, or even to the arbitrator himself:3 and they may be given by other persons than the parties themselves, who will incur the forfeiture if the parties do not perform the award.

Nor is it necessary that, on each of the bonds, it should appear of how many persons the parties to the submission consist. Thus, where it appeared that there were three brothers, Richard, Robert, and William; that their father had devised certain lands to the, two latter, and that several disputes arising between them and Richard, they had, by bond, submitted to arbitration; Richard entering into a bond to Robert and William jointly, but they giving him separate bonds: it was held, after several arguments on an action brought by Richard against Robert, that the submission was properly made.

The submission may also be by indenture with mutual covenants to stand to the award."

It is usual, in articles of copartnership, and not uncommon in other agreements, to insert a provision or covenant, that all disputes arising between the parties relative to their intended transactions, or to any covenant in the articles, shall be referred to arbitration. Whether such a provision shall so far have the effect of a submission as to be a bar to either of the parties

3 Vid. 36 H. VI. 8. 22 Ed. IV. 25 a. Owdy v. Gibbons, Comb. 100. 1

4 Hayes v. Hayes, Cro. Car. 433.

5 2 Mod. 73.

suing the other on any matter within the terms or meaning of it, without having first had an actual reference, which has proved ineffectual, or a proposal by the plaintiff, to refer, and refusal by the defendant, has been the subject of contrary decisions.

In an early case on this subject the question seems not so much to have been whether such a plea, if properly applied, would have been valid, but whether it clearly appeared that the subject of controversy fell within the meaning of the covenant to refer.-In an indenture containing several covenants there was a proviso that if any misunderstanding or controversy should arise in future by reason of any clause, article, or other agreement in the indenture contained, that then before any suit should be attempted, the parties should choose arbitrators for the determination of the dispute. A bond was also given for the performance of covenants contained in the indenture: the defendant being sued on this bond pleaded this proviso, and alleged that the dispute and controversy, on which the action was brought, arose on the indenture. The court held the plea was defective, because it did not specially shew on what particular article the controversy arose, and enable them to judge whether the matter was the proper subject of reference within the meaning of the indenture. They also held, that the words of this proviso did not extend to bind the parties to submit the "breach" of every covenant or article in the indenture, but were confined to the case where a dispute arose on the "construction" of any covenant,

• Parmort v. Griffina, 1 Leon, 37.

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But in a later case it was expressly decided, that such an agreement could not alone exclude the jurisdiction of a court of law. An action was brought on a policy of insurance, in which a clause was inserted, that in case of any loss or dispute about the policy, it should be referred to arbitration. The plaintiff in his declaration averred that there had been no reference; on the trial at Guildhall, it was reserved for the consideration of the Court of King's Bench, whether the action could be maintained before a reference had taken place; and the whole court were of opinion, that if there had been a reference depending, or a reference had taken place and been determined, this might have been a bar to the action, but that the mere agreement of the parties could not exclude the jurisdiction of the Court."

8 To a bill filed for discovery and relief against frauds, the defendant pleaded, that the plaintiff and he had, on the 15th of November, 1728, executed articles of copartnership, by which they had covenanted to become joint traders, as Blackwell-hall factors, for eight years, and agreed that in case any difference should arise relating to their business, or with respect to any covenant in the articles, it should be referred: and averred that all matters in the plaintiff's bill related only to the partnership, and that they had never been submitted to arbitration, nor had the plaintiff ever proposed a reference, or nominated any person to be an arbitrator, though the defendant had offered and was always ready to submit all matters to arbitration.

7 Kill v. Hollister, 1 Wils. 129.

8 Wellington v. Mackintosh, 2 Atk. 585 (569).