Horace Gray

“ In the case now before us, on the other hand, the appraisal and the award are distinct things, and to take place at separate times, and the effect assigned to each is quite different from that given to the appraisal and award in the other policy. The 'appraisal,' without which the loss is not payable, is required to be made not merely when differences arise as to its amount, but in all cases, and results in a mere 'report in writing,' which is not declared to be binding upon the parties in any respect, and is in truth but a part of the proofs of loss. ”

“ That policy looked to a single appraisal and award, to be made as one thing, and by one board of appraisers or arbitrators, whenever any difference should arise between the parties, and to be binding and conclusive as to the amount of the loss, although not to determine the question of the liability of the company; and the policy contained, not only a provision that until such an appraisal the loss should not be payable, but an express condition that no action upon the policy should be sustainable in any court until after such an award. ”

“ In all other cases where there is, first, a covenant to pay, and, secondly, a covenant to refer, the covenants are distinct and collateral, and the plaintiff may sue on the first, leaving the defendant' 'to bring an action for not referring,' or (under a modern English statute) 'to stay the action till there has been an arbitration.' 1 Exch. ”