FOR REFER TRATION. That all costs are to be in the discretion of the arbitrator. or against the said arbiter, in relation to the premises; and that these presents shall, and may be pleaded in bar ENCE TO ARBIto any such action, suit, or proceeding (n). THAT the costs (o), charges, and expenses, of and attending, or in anywise relating to this present submission to arbitration, including the expenses of preparing, perfecting, and executing two parts of these presents, and two parts of the award; and the charges of the respective solicitors of the parties respectively, or their respective heirs, executors, or administrators, in relation to such submission, and the previous correspondence; and including the compensation to be made to the said arbiter for his trouble, and the compensation to be made to any surveyor or surveyors, or other person or persons who may be called in by the said arbiter as aforesaid; and also the cost incurred in, or about, or in anywise relating to the said action, by the plaintiffs and defendants, and all costs, charges, and expenses incurred by the said A. B. and C. D., in the investigation of the title to the said purchased premises; and the costs, charges, and expenses incurred by the said respective parties, in anywise relating to the said purchase, shall be in the discretion of the said arbiter, who shall direct by whom, and to whom, and in what manner the same shall be paid; and who shall be at full liberty, if he see fit, to direct that any (n) Where disputes have been referred to arbitration, and the reference has been made a rule of a court of law, a court of equity has no jurisdiction. (Gwinett v. Banister, 14 Ves. 530; Dawson v. Sadler, 1 Sim. & Stu, 530; Nichols v. Roe, 3 My. & Ke. 431; (reversing the judgment of the court below, reported 5 Sim.156)). And it makes no difference that the parties stand to each other in the relation of trustee and cestui que trust; (Auriol v. Smith, 1 Turn. & Russ. 121); or that the reference is not made a rule of court, till after a bill is filed to impeach the award. (Smith v. Symes, 5 Mad. 74; Nichols v. Roe, ubi supra); see Watson on Arbitration, 314, 322. (0) It is desirable to determine, in exact terms, the discretion which the arbitrator is to have in awarding costs; as his authority, independent of special agreement, is limited, and somewhat uncertain. (See the cases of Whitehead v. Firth, 12 East, 165; Hartnell v. Hill, Forrest, 73; Taylor v. Gordon, 9 Bing. 570; S. C. 2 M. & Scott, 725; Firth v. Robinson, 1 B. & C. 277; Watson on Arbitration, 122, 136). If reference be made a rule of tion of equity is court, jurisdicexcluded. FOR REFER ENCE TO ARBI TRATION. That reference shall not abate by death of parties. of such costs and expenses shall be reckoned as between attorney and client, and not as between party and party. THAT, in case any of the said parties shall die (p) before the making of the said award, the said reference shall not abate, or be revoked by such death or deaths; and the heirs, executors, or administrators of the party or parties so dying, shall, (so far as circumstances may require or admit, and particular regard being had to the character of the said E. F. and G. H., as trustees), be considered and taken as parties to the said reference, in the stead of, and in the like manner as their ancestor or ancestors, testator or testators, intestate or intestates. AND THAT this made a rule of present submission to arbitration shall or may be made a rule of her Majesty's Court of Queen's Bench, at Westminster, according to the statute in that case made and provided, if such court shall so please, and either party, (including representatives aforesaid), shall be at liberty to apply to the said court for that purpose, and to instruct coun That submis sion may be court. Effect of the deaths of parties before the award. (p) The authority of an arbitrator is determined by the death of any of the parties to the submission, at any time before the award. Edmunds v. Cox, 3 Doug. 406; 2 Chit. 432; Cooper v. Johnson, 2 Bar. & Ald. 394; 1 Chit. 387; Potts v. Ward, 1 Marsh. 366; Toussaint v. Hartop, 7 Taunt. 571; President and Members of the Orphan Board V. Van Reenen, 1 Knapp, 100). But this consequence may be obviated by the insertion of a direction to the contrary effect, in the instrument of reference to arbitration. (M‘Dougall v. Robertson, 2 You. & Jerv. 11; Wrightson v. Bywater, 3 Mee. & Wels. 199; Dowse v. Coxe, 3 Bing. 20; S. C. 10 Moore, 272; Biddle v. Dowse, 6 B. & C. 255; 9 Dow. & Ry. 404; Clarke v. Crofts, 4 Bing. 143; S. C. 12 Moore, 149). And where an arbitrator had authority to enlarge the time for making the award, and also authority to make an award after the death of any of the parties, and enlarged the time, after the death of one party, it was held, that an award, made within such enlarged time, was valid and binding on the other party. (Tyler v. Jones, 3 B. & C. 144; S. C. 4 Dow. & Ry. 740; see further, Watson on Arbitration, 23). If parties agree for a sale, at a price to be fixed by arbitration, the death of one of the parties determines the agreement, unless the contrary is directed. (Blundell v. Brettargh, 17 Ves. 241). Of course, in all references to arbitration, a clause, to prevent the authority of the arbitrators from being determined by the death of the parties, should be inserted, unless the contrary be expressly directed. FOR REFER TRATION. sel to consent thereto for the other party, (including representatives as aforesaid (q)); AND for the due observance ENCE TO ARBIand performance of the covenants and agreements hereinbefore contained on the part of the said E. F. and G. H.; performed, un (9) The statute referred to in the text, is the 9 & 10 Will. 3, c. 15, which enables parties to make a submission to arbitration, by bond, or other writing, a rule of court; and puts such submission on the same footing with those actually made by rule of court. Every reference to arbitration should contain an agreement for making it a rule of court; both because the parties thereby obtain the power of having the award enforced by process of attachment, and because they are not otherwise entitled to the various advantages conferred by the stat. 3 & 4 Will. 4, c. 42, and which have been pointed out in some of the preceding notes. An additional reason for always having the reference agreed to be made a rule of court is, that it is no defence to an action for the non-performance of an award, in pursuance of a reference which has not been made a rule of court, to shew collusion or misconduct in the arbitrators. (1 Wms. Saund. 327, a.). But the statute 9 & 10 Will. 3, c. 15, s. 2, enacts, that any arbitration or umpirage procured by corruption, or undue means, shall be judged and esteemed void and of none effect, and accordingly be set aside by any court of law or equity, so as complaint be made in the court where the rule is made for submission. (See more on this statute, and on arbitration, 1 Wms. Saunds. 327, a. b.; Watson on Arbitration, 35, 44). The proper and usual method, according to the statute, is, to agree to make the submission or reference a rule of court; but even if it be agreed to make the award a rule of court, it is clear that such an agreement, although erroneously expressed, is sufficient to bring the case within the statute. (Pedley v. Westmacott, 3 East, 603; Soilleux v. Herbst, 2 Bos. & Pul. 444). The usual course is, to agree to make the reference a rule of a court of law; but there is no objection to its being made a rule of a court of equity. (Smith v. Symes, 5 Mad. 74; 1 Russ. & My. 498, n.). In conveyancing transactions, the latter is, perhaps, the best course, from the greater familiarity which courts of equity have with those affairs. Covenants to be der a penalty, by vendors, References to arbitration should always be agreed to be made rules of court. Agreement may be, to rule of court. make award a The reference may be made a rule of a court of equity. misconduct of arbitrators. If a reference to arbitration be not made a rule of court, the remedy Remedy for for the misconduct of the arbitrators is in equity. (Veale v. Warner, 1 Wms. Saund. 326; Greehill v. Church, 3 Ch. Rep. 88; Earl v. Stocker, 2 Vern. 251; Barton v. Knight, 2 Vern. 514). But a bill will not lie as to a question of fact referred, except for corruption, partiality, or irregularity of conduct in the arbitrator. (Goodman v. Sayers, 2 Jac. & Walk. 249). FOR REFER ENCE TO ARBI- -and purchasers. The effect of a penalty for non-performance of a cove nant or agreement. and each or either of them, and their, or each or either of (r) The insertion of a penalty, to be paid on the non-performance of an agreement, does not release the parties from the necessity of performing it, unless, in the construction of the whole contract, it appears that the stipulated sum was designed, not as a penalty, but as liquidated damages. (1 Swanst. 318, n. a.; see ante, page 101, note (e)). As neither party can now revoke the reference without permission of the court or a judge, the penalty is of little use in preventing a revocation, but it may serve as the measure of damages in an action for non-performance of the award. However, it is clear, that the award being made, a court of equity will enforce a specific performance, (Wood v. Griffith, 1 Swanst. 52; Milnes v. Gery, 14 Ves. 400, 407), reserving, however, the exercise of its discretion, as to whether the agreement is reasonable. (See 1 Swanst. 54). And a court of equity will enforce an award made under an order of the court, for a reference by consent, in a cause, although arbitration bonds may have been executed in pursuance of the order, and although the award may not have been made a rule of court. (Ormond v. Kynnersley, 2 Sim. & Stu. 15; but see Salmon v. Osborn, 3 Myl. & Kee. 429). VII. AGREEMENT for an EXCHANGE by WAY OF MUTUAL CONVEYANCE. ARTICLES OF AGREEMENT made and entered into this day of FOR AN EX- 18. BETWEEN A. B., of &c., Parties. of the one part; and C. D., of &c., of the other part; as follows (that is to say): EACH of them the said A. B. and C. D. (so far as relates to his own acts and deeds), doth hereby agree with the other of them in manner following (that is to say): THAT the said A. B. shall sell, and the said C. D. shall purchase, ALL THAT &c. [first parcels], with their appurtenances, and the inheritance thereof, in fee simple, free from incumbrances, in consideration (a) of the hereditaments hereinafter agreed to be sold by the said C. D. to the said A. B., and that the said C. D. shall sell, and the said A. B. shall purchase, ALL THAT &c. [second parcels], with their appurtenances, and the inheritance thereof, in fee simple, free from incumbrances, in consideration of the hereditaments hereinbefore agreed to be sold by the said A. B. to the said C. D.; THAT each of them the said A. B. and C. D. shall, within from the (a) The disadvantages incident to exchanges have been pointed out in a previous note, page 50, note (k), and in the first volume, page 170. And, for this reason, although the agreement in the text is entitled an agreement for an exchange, it is, in effect, an agreement for mutual sales, to which it is not intended to impart any of the incidents of an exchange. It is probable, that if the agreement be for an exchange, although the parties be not able to effect an exchange in strictness of law, yet, some of the incidents may, at least in equity, be considered to attach to the transaction. There is, in a subsequent part of this agreement, an express stipulation, (though not absolutely necessary), that the agreement is not to be considered as an agreement for an exchange. Agreement for mutual sales and purchases. for furnishing abstracts of title. |