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CONVEYANCE

WITH RESERV

ATION OF

MINES.

Agreement to refer to arbibration.

Inutility of arbitration clauses.

and C. D., so far as relates to the acts and deeds of himself, his heirs and assigns (g), doth hereby for himself, his heirs, executors, administrators, and assigns, covenant with the other of them, his heirs and assigns, in manner following, (that is to say), THAT if any doubt, difference, or dispute shall at any time or times hereafter arise between the said A. B. and C. D., or their respective heirs or assigns (h) or any of them, respectively, touching the land or ground, or other matters in respect of which satisfaction ought to be made, in pursuance of the covenants herein before contained, or any of them, or touching

drains, &c., for working the coal, except as to such lands as lay within 150 yards of the messuage and buildings, and except any homestead. On the construction of this conveyance, it was held, that the vendor had reserved to himself the right to dig coals under the messuage, buildings, and homesteads, and within 150 yards of the same respectively, but that he had not the right to sink pits, erect engines, and make drains within 150 yards of the messuage or buildings, or within the homestead. (Bowler v. Wolley, 15 East, 444). Questions of this nature, for the most part, may and ought to be avoided by care on the part of the draftsınan; but, questions of fact sometimes arise, which can only be settled by extrinsic evidence. As, for instance, what constitutes a garden? (Gilbert v. Tomison, 4 Dow. & Ry. 222). See, further, with respect to the extent and duration of a grant of powers of mining, Hodgson v. Field, 7 East, 613; S. C. 3 Smith, 538. And with respect to the usual parliamentary restrictions on mining operations in the neighbourhood of canals, see Dudley Canal Navigation Company v. Grazebrook, 1 B. & Ad. 59; and the cases there cited.

(g) The utility of these prospective references to arbitration is very doubtful, for it is next to impossible so to frame them as to render them applicable to the complicated interests which are commonly carved out of real estate. The clauses have, however, been retained, in deference to custom, and an endeavour has been made to render them more available in practice than the usual forms. But it is proper to observe, that, according to the most approved practice of conveyancers at the present time, arbitration clauses are only inserted in deeds of this nature in obedience to instructions.

66

(h) It may, perhaps, be fitting to add here in parentheses,

(including lessees, tenants, or occupiers, and their representatives)."

the amount or quantum of such satisfaction, or touching the construction of these presents, or any matter or thing whatsoever in any wise relating to the premises, then and in such case, and so often as the same shall happen, such doubt, difference, or dispute shall be reduced into writing, and be submitted and referred to the arbitration of three indifferent persons, one to be from time to time chosen by each of the two parties so doubting, differing, or disputing, within one calendar month after either of them shall have made to the other a requisition to that effect,and the third to be named by the two persons from time to time first chosen, within one calendar month after they shall have been themselves chosen: AND FURTHER, THAT if either of the parties so doubting, differing, or disputing as aforesaid, shall, by any writing under his or their hand or hands, require the other of the said parties to submit and refer the same to arbitration, and in pursuance of the covenant lastly hereinbefore contained to name some person as arbitrator, and if the party to whom such requisition shall be made, shall, for the space of one calendar month after such requisition, neglect or refuse to comply therewith, then and in such case, and so often as the same shall happen, it shall be lawful for the person chosen to be arbitrator on behalf of the party making such requisition, by any writing under his hand to appoint some person to act as arbitrator, on behalf of the party so refusing or neglecting as aforesaid, and that such two persons shall name a third arbitrator as aforesaid: AND FURTHER, THAT (i) it shall be lawful for the said arbitrators or any two of them to arbitrate, determine, and award, of and concerning all and every the matters and things touching which such doubt, difference, or dispute as aforesaid shall have arisen, and, (if they or any two of them shall see fit so to do), at the expense of the parties in difference or one of them, to require the aid and take the opinion of any surveyor or surveyors, or counsel or other person or persons, and to adopt such other measures, and give

(i) See the notes, supra, pp. 126–133, inclusive, as to the object and effect of the subsequent provisions; and see Hetherington v. Robinson, 4 Mee. & Wels. 608.

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CONVEYANCE

WITH RESERV

ATION OF

MINES.

Power to ar

bitrators to hear

and determine.

CONVEYANCE

WITH RESERV

ATION OF

MINES.

Agreement to abide by the award.

Agreement to

be examined

as witnesses,

evidence.

all such directions as shall appear to the said arbitrators or any two of them advisable or expedient: AND FURTHER, THAT the parties so doubting, differing, or disputing as aforesaid, and all persons claiming by, from, through, or under them respectively, shall in all things obey, abide by, observe, and perform the award, order, and determination of the aforesaid arbitrators, or of any two of them, so as the award of the said arbitrators or of such two of them as shall concur be made in writing under their hands, and be ready to be delivered to the said parties respectively, or such of them as shall desire the same, within three calendar months next after the third of such three arbitrators for the time being shall have been named: THAT THE SAID parties so doubting, differing, or disputing as aforesaid, and all persons claiming by, from, through, or and to produce under them respectively, will, if required by the said arbitrators, or any two of them, attend personally and submit to be examined relative to the matters in doubt, difference, or dispute, and will produce to and deposit with the said arbitrators, or any two of them, all such deeds, evidences, letters, papers, and writings, relative to the matters in doubt, difference, or dispute, as shall be in the possession or power of the said parties respectively, or their respective heirs, executors, or administrators, and as the said arbitrators, or any two of them, may wish to peruse or inspect, and will, so far as in them respectively may lie, furnish or cause to be furnished all such documents, proofs, and evidence, and do or cause to be done all such acts and things for better enabling them to make the said award, as the said arbitrators, or any two of them, shall require: THAT THE SAID parties respectively, and all persons claiming by, from, through, or under them respectively, if examined, and all other witnesses who shall be produced to give evidence before the said arbitrators, or any two of them, of and concerning the premises, (if required by the opposite party, or the party against whom such witness shall be produced), and also any surveyor or surveyors, or other person or persons (except counsel) who may be called upon by the said arbitrators, or any two of them, as afore

That evidence may be taken on oath.

said, shall (if the same shall be thought proper by such arbitrators) be examined upon oath or upon their affirmation in cases where affirmation is allowed by law instead of oath THAT THE costs, charges, and expenses of and attending, or in anywise relating to any arbitration, including the compensation to be made to the arbitrators for their trouble, and the fees and compensation to be made to any surveyor or surveyors, counsel, or other person or persons who may be called on as aforesaid, shall be in the discretion of the said arbitrators, or any two of them, 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 they see fit, to direct that any of such costs and expenses shall be reckoned as between attorney and client, and not as between party and party: AND THAT any submission or reference to arbitration, under or by virtue of these presents, shall or may be made a rule of any of her Majesty's courts at Westminster, according to the statute in that case made and provided, if any such court shall so please, and either party shall be at liberty to apply to the said court for that purpose, and to instruct counsel to consent thereto for the other party. [Covenants for title by A. B. with C. D., his heirs and assigns; see supra, Precedent XVI. p. 201, confining the covenants to "the closes of land, hereditaments, and premises hereinbefore limited to the use of the said C. D., his heirs and assigns."] IN WITNESS &c.

CONVEYANCE

WITH RESERV-
ATION OF

MINES.

That arbitrators

shall have power to give costs.

That any subbitration may

mission to ar

be made a rule

of court.

BANKRUPT'S
FREEHOLD

ESTATE.

Parties.

Disposition
under statute
6 Geo. 4, c. 16,
of a bankrupt's
personal estate,

-and real estate.

XLIV.

CONVEYANCE by the MORTGAGEES and
ASSIGNEES and the OFFICIAL ASSIGNEE of a
BANKRUPT (a).

THIS INDENTURE, made &c. BETWEEN E. F., of

(a) It is enacted by the statute 6 Geo. 4, c. 16, s. 63, that the commissioners under a commission in bankruptcy shall assign to the assignees for the benefit of the creditors all the present and future personal estate of the bankrupt, and all property which he may purchase, or which may revert, descend, be devised or bequeathed, or come to him, before he shall have obtained his certificate, and all debts due to the bankrupt, and which are made recoverable by the assignees. By sect. 64 of the same statute, it is enacted, that the commissioners shall by deed indented, and inrolled in any of His Majesty's courts of record, convey to the assignees, for the benefit of the creditors, all lands, tenements, and hereditaments, (except copy or customary hold), in England, Scotland, Ireland, or any of the dominions, plantations, or colonies belonging to His Majesty, to which any bankrupt is entitled, and all interest to which such bankrupt is entitled in any of such lands, tenements, or hereditaments, and of which he might, according to the laws of the several countries, dominions, plantations, or colonies, have disposed; and all such lands, tenements, and hereditaments as he shall purchase, or shall descend, be devised, revert, or come to such bankrupt before he shall have obtained his certificate. And by the same section it is provided, that the conveyance by the commissioners shall be registered in any colony whose laws require registration. By section 66, the Lord Chan cellor is empowered to order any conveyance or assignment made to the assignees of either the real or personal estate to be vacated, but so that no title of any purchaser prior to such order be thereby affected, and to order a new conveyance and assignment to be made. And it is enacted, that the order for the new assignment shall have the effect of vesting the debts and personal estate in the assignees, and that the new conveyance shall be valid without a conveyance from the former assignees. The conveyance by the commissioners to the assignees was made by a common law bargain and sale, (see ante, p. 197, n.), and the assignees had no title whatever to the bankrupt's property, real or personal, until the assignment or bargain and sale was actually executed. Then as to per

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