Brodhurst and Tyrrell, JJ.:— It is admitted in this case that the parties agreed to an arbitration on the 18th May, 1883. One of them has brought this suit for part of the subject-matter referred to the arbitrators more than a year after that date. The defendants plead the bar of s. 21 of the Specific Relief Act, but they do not allege in their answer to the plaint that the plaintiff [61] refused to perform his contract to submit to arbitration. And one of the arbitrators, a witness in this case, has sworn that the arbitrators did not decide the case because “the parties were contentious among themselves.” The Judge, in appeal, held that the mere act of filing this suit on the part of the plaintiff is tantamount to a refusal to perform his contract in the sense of s. 21 of the Specific Relief Act. We cannot take this view; and we hold that the contract, the existence of which would bar a suit under the circumstances contemplated by this section, must be an operative contract and not a contract broken up by the conduct of all the parties to it. We allow the appeal, and setting aside the decree of the lower appellate Court, remit the appeal for determination on the merits, under s. 562 of the Civil Procedure Code. Costs will be cost in the cause.
Appeal allowed.