Page:Harvard Law Review Volume 32.djvu/621

BOOK REVIEWS 585 agreement, he fails to cite any authority for his criticism of Story. He may have been relying on a few early cases in which courts of equity have refused to lend their special aid to a plaintiff who filed his bill in actual breach of an agreement to arbitrate. He discusses these cases in Chapter XIII. However, the difference between, on the one hand, refusing the aid of an equity court to one who violates an arbitration agreement and, on the other hand, specifically enforcing such an agreement is obvious. Specific performance aside, one may in the main agree with Mr. Cohen's contentions concerning what the law ought to be. That agreements to arbi- trate are valid contracts for the breach of which an action for damages will lie, should be and is the common law. Whether a court should refuse relief to a party who has broken an agreement to arbitrate depends on whether such a breach is substantial, goes to the essence of the contract. Probably it is of the essence in most cases. The common law refused to consider such a breach a bar. It took a statute in England to change the rule. But the common law held that a party could protect himself against a suit in disregard of a contract to arbitrate by making arbitration an express condition precedent to UabiUty. Then no suit could b"©^ brought prior to the performance of the condition. This common-law rule with the addition of the EngUsh statutory rule just mentioned seems then to reach the sound result. Unfortunately statutes like the English one have not been generally adopted in this country. It would seem that Mr. Cohen should urge the adoption of such statutes. Instead he attempts to con- vince us that the early common law did bar suits in breach of an agreement (not put as a condition precedent) for arbitration and, that after a period of unfortunate error the English courts have at last returned to their original and correct position. In this he fails. Outside the condition precedent cases, the English courts do not refuse to entertain suits in violation of an arbitration agreement except under the statute already mentioned. The writer wishes to express no opinion on the accuracy of Mr. Cohen's use of authorities: he simply offers the following samples of it. {a) On page 104 a case from Bracton's Note Book (number 649) is explained at some length. The actual gist of the case is that Simon de Chelefeuldia sued WiUiam de la Mare for having prosecuted an action against Simon, concerning a rick of hay, in the Court Christian — contrary to a prohibition from, probably, the King's Bench. Simon produced his suite (sectam) which was examined and found insufficient. WilHam put in a plea (possibly actually proffered before the examination of Simon's secta) that he had not sued Simon after the prohibition and that in truth they had agreed to arbitrate the matter. It was decided that since Simon's suite was insufficient, WiUiam should go without hay and Simon be in mercy. Mr. Cohen's idea of the case is that William sued Simon for damages to hay, that Simon pleaded that the matter should be tried in a peaceful Christian court under an agreement to arbitrate, that William contended that the agreement was insufficient, that Simon pro- duced another such agreement which the court held sufficient to bar William from this suit in the King's Bench. Mr. Cohen in his interpretation of the case translates secta as equivalent to writing or agreement. That it means the suite of witnesses which a party in early procedure was bound to bring with him is sufficiently established by referring to Pollock and Maitland's "History of English Law," I, 467, II, 599, 607, 634-37. (b) On page 113 Mr. Cohen discusses a case found in Y. B. 21 H. VT, pi. 300. It was an action of debt. The defendant pleaded nil debet. Quoting now Mr. Cohen's language, "The case does not disclose its outcome. AU that we find at the end is: "And he made his law." That this means that the defendant won by compurgation is clear by a reference to Pollock and Maitland's "History of English Law," II, 212, 608, 633. (c) To turn to more modern matters, on page 227, Mr. Cohen gives two lists