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or against the said arbiter, in relation to the premises; POR REFER
ENCE TO ARBI. and that these presents shall, and may be pleaded in bar to any such action, suit, or proceeding (n). That the
That all costs costs (0), charges, and expenses, of and attending, or in any. are to be in the
discretion of wise 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 If reference be
a rule of reference has been made a rule of a court of law, a court of equity made has no jurisdiction. (Gwinett v. Banister, 14 Ves. 530; Dawson v. tion of equity is
court, jurisdicSadler, 1 Sim. & Stu, 530; Nichols v. Roe, 3 My. & Ke. 431; (re- excluded. versing 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).
ENCE TO ARBI
FOR Refer- 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 shall not abate the making of the said award, the said reference shall not by death of par
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, testaThat submis- tor or testators, intestate or intestates. And that this sion may be
present submission to arbitration shall or may be made a made a rule of
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
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.
ENCE TO ARBI
sel to consent thereto for the other party, (including repre- FOR REFERsentatives as aforesaid (9)); And for the due observance E and performance of the covenants and agreements herein
Covenants to be before contained on the part of the said E. F. and G. H.; performed, un
der a penalty, by vendors,
(2) The statute referred to in the text, is the 9 & 10 Will. 3, c. 15, References to which enables parties to make a submission to arbitration, by bond, arbi or other writing, a rule of court; and puts such submission on the be agreed to be
should always same footing with those actually made by rule of court. Every made rules of reference to arbitration should contain an agreement for making it court. 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 Agreement to make the submission or reference a rule of court; but even if it be may be, to
make award a agreed to make the award a rule of court, it is clear that such an rule of court. 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 The reference of law; but there is no objection to its being made a rule of a court may be made a
rule of a court of equity. (Smith v. Symes, 5 Mad. 74; 1 Russ. & My. 498, n.). In of equity. conveyancing transactions, the latter is, perhaps, the best course, from the greater familiarity which courts of equity have with those affairs.
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, misconduct of
arbitrators. 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).
ENCE TO ARBI
FOR REPER- and each or either of them, and their, or each or either of
" their heirs, executors, or administrators, they, the said
E. F. and G. H., do hereby bind themselves, jointly and severally, and their respective heirs, executors, and admi
nistrators, unto the said A. B. and C. D., their executors -and pur and administrators, in the sum of £„ , (): And for the
due observance and performance of the covenants and agreements hereinbefore contained on the part of the said A. B. and C. D., and each or either of them, their, and each of their executors or administrators, they, the said A. B. and C. D. do hereby bind themselves, jointly and severally, and their respective heirs, executors, and administrators, unto the said trustees, their executors and administrators, in the like sum of £ IN WITNESS &c.
The effect of a (r) The insertion of a penalty, to be paid on the non-performance penalty for of an agreement, does not release the parties from the necessity of non-performance of a cove
performing it, unless, in the construction of the whole contract, it nant or agree- appears that the stipulated sum was designed, not as a penalty, but VII.
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. 64). 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).
AGREEMENT for an ExchANGE by WAY OF FOR AN EX
ARTICLES OF AGREEMENT made and entered
- , of the one part; and C. D., of &c., of the other part;
(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.