An agreement to arbitrate, whether constituting the whole contract between the parties or merely forming part of a larger contract, met with some jealousy on the part of the courts as tending to oust them of their jurisdiction. It has been asserted and never denied that this hostility probably originated "in the contests of the courts of ancient times for extension of jurisdiction - all of them being opposed to anything that would altogether deprive every one of them of jurisdiction." 50 It has been said,51 "A more unworthy genesis cannot be imagined. Since (at the latest) the time of Lord Kenyon, it has been customary to stand rather upon the antiquity of the rule than upon its excellence or reason." 52 Such an agreement, however, will support an action at law.53 Yet as it will not be specifically enforced,54 and as only nominal damages can be recovered,65
N. E. 279; Griffin v. Chriswisser, 84 Neb. 196, 120 N. W. 909; Burton v. Belvin, 142 N. C. 151, 65 S. E. 71 Maxwell v. Campbell, 8 Ohio St. 265 Maurer v. Mitchell, 9 W. & S. 69 Wyant v. Leaner, 23 Pa. St. 338 Jangraw v. Perkins, 77 Vt. 375, 60 Atl. 385. In some of these cases bastardy proceedings were held to be civil in their character rather than criminal. Cf. Berry v. Dunn (Ala., 1918), 78 So. 51, L. R. A. 1918 D. 939, where the court held a promise to pay for forbearing to prosecute for seduction was illegal.
47 Price v. Summers, 2 South. 578.
48 Archie v. Brown (Ky.), 209 S. W. 522. (The agreement in this case was expressly made subject to the consent of the prosecuting attorney and the court.)
48 Soule v. Bonney, 37 Me. 128, 129.
49 Geier v. Shade, 109 Pa. 180; Commonwealth v. Carr, 28 Pa. Super. 122.
50 Lord Campbell in Scott v. Avery, 5 H. L. Cas. 811.
51 United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 Fed. 1006, per Hough, J.
52 "It is not necessary now to say how this point ought to have been determined if it were res integra - it having been decided again and again," etc. Per Kenyon, J., in Thompson v. Charnock, 8T.R. 139. See also Kill v. Hollister, 1 Wils. 129. Cf. Dimsdale v. Robertson, 2 Jones & Lat. 58, 90.
53 Livingston v. Ralli, 5 E. & B. 132; Hamilton v. Home Ins. Co., 137 U. S. 370, 385, 34 L. Ed. 708, 11 S. Ct. Rep. 133; Hill 9. More, 40 Me. 515, 523; Donegal v. Verner, 6 Ir. Rep. C. L. 504. See also Nute v. Hamilton Mut. Ins. Co., 6 Gray, 174,181; Union Insurance Co. v. Central Trust Co., 157 N. Y. 633,52 N. E. 671,44 L. R. A. 227; Gray v. Wilson, 4 Watts, 39,41. The authority of the arbitrators is revocable (infra, Sec. 1927), but it is a breach of contract to revoke it.
54 See supra, Sec. 1421.
55 Munson v. Straits of Dover Steamthe agreement is of little value unless it can be used as a bar to an action in the courts on the claim whieh it was agreed to arbitrate; and it is its validity in this respect which will be here considered.