AGREEMENTS.

Reference

of Disputes.

Parties submit to be examined.

Majesty's Court of King's Bench, at Westminster, on the application of either of the parties hereto, his or her heirs, executors, administra tors, or assigns, and that no action or suit at law or in equity (1), shall be commenced or prosecuted against the said arbitrators or umpire, concerning his or their award or determination, after the same shall have been so made as aforesaid, nor to impeach the said award or umpirage, unless some collusion or other fraud be discovered or appear therein. AND the several parties hereto, do hereby respectively agree and submit to attend the said arbitrators and umpire, and to be examined upon oath (2) by the said arbitrators or umpire, relative to all or any of the matters so in difference as aforesaid; and also to produce unto and deposit with the said arbitrators or umpire, if thereto required, all or any deeds, writings, papers, and evidences, in their respective custody or power, concerning the same, when and as often as they shall respectively be thereunto required in writing, under the hands or hand of the said arbitrators or umpire; and in default thereof, the said arbitrators or umpire shall or lawfully may determine exparte, or otherwise, at their or his discretion (3). AND MOREOVER, that in case no time limited, the award shall be made by the arbitrators or umpire, within the time

If no award

imade within the

Lord Chancel

lor, &c. to award, hereinbefore appointed for that purpose, the Lord Chancellor, or

Award not to be impeached, unless for fraud or corruption.

Arbitrators can

not examine on oath, unless by

consent.

Arbitrators may determine exparte, on nonattendance.

Court cannot

Vice Chancellor, or Lord Keeper or Lords Commissioners of the Great Seal, for the time being, or any other judge, or justice, or judges or justices, before whom the aforesaid suit shall or may for the time being be depending (4), shall have and may exercise all the

the submission a rule of court, does not however shut out the Court of Chancery from granting relief in case of fraud, or other matters coming within the peculiar jurisdiction of that court; Featherstone v. Cooper, 9 Ves. 67.

(1) An agreement in a submission, that no exception shall be taken to the award of the arbitrator for any cause, is invalid; Hide v. Cooth, 2 Vern. 109; but it will be unimpeachable, unless partiality or corruption on the part of the arbitrators or umpire, or fraud on either of the parties be shewn; Lingood v. Croucher, 2 Atk. 395; Tittenson v. Peat, 3 ib. 529; Routh v. Peach, 2 Anst. 519.

(2) Arbitrators have no power to examine the parties on oath under a general power of reference, unless by the consent of the parties; Wellington v. Mackintosh, 2 Atk. 569.

(3) Arbitrators may at their discretion proceed to determine the matters referred to them exparte, if either of the parties refuse to attend on being duly summoned; Waller v. King, 9 Mod. 63. Wood v. Leake, 12 Ves. 412.

(4) The Court cannot put itself in the place of the arbitrators on their award unless by failure to make the award within the time, or in the manner prescribed,

AGREEMENTS

Reference of Disputes. And such award

to be binding although extra

judicial.

personal authorities hereby given, or intended to be given to the said arbitrators or umpire; and that his or their determination, order, or decree, concerning the same, whether judicially or extra-judicially made, shall be binding and conclusive upon all and every the parties hereto, and although extra-judicially made, shall or may be made a rule of court, at the instance of either of the said parties, or of the respective representatives. AND each of the said parties Nomine pœnæ hereto doth hereby bind himself, his heirs, executors, and administrators, unto the other of them, his executors, administrators and assigns, in the penal sum of £ (1) of good and lawful money of the United Kingdom of Great Britain and Ireland for the true and faithful observance and performance, on his and their respective parts, of the award, umpirage, or determination, which shall be so made as aforesaid, and of all and every the orders, directions, matters, and things, therein to be contained, which by him or them, severally and respectively, shall be required to be performed or observed. AND it is hereby lastly Costs to abide agreed, that all fees and monies, which the said arbitrators or umpire, or any or either of them, shall think proper to give to any counsel or others for advice, or otherwise relative to the premises aforesaid, and all other reasonable expences attending their or his award (2) or umpirage, in or concerning the premises, and also the costs (3) of the said suit, so depending as aforesaid, and of all matters and things in relation thereto, or to these presents, shall

unless such be the express agreement between the parties; Blundell v. Brittargh, 17 Ves. 242.

(1) As parties cannot be compelled in equity to a specific performance of the award of the arbitrators, Thompson v. Noel, 1 Atk. 60; nor of an agreement to refer, Gourlay v. Duke of Somerset, 19 Ves. 431.; a penalty is usually annexed to the deed of submission, or mutual bonds given for a legal remedy in case of default.

(2) Although arbitrators may award a sum to themselves for their time and trouble if authorized to do so, yet this sum is not conclusive upon the parties, but will be subject to be referred to the proper officers of the Court, if deemed unreasonable. Virany v. Warne, 4 Esp. Rep. 47; Miller v. Robe, 3 Taunt. 461; Fitzgerald v. Greves, 5 ib. 342; George v. Lousley, 8 East, 13.

(3) The arbitrators have no power to award the costs of reference unless empowered to do so by the terms of submission; Strutt v. Rogers, 7 Taunt. 213; and see Firth v. Robinson, 1 Barn. and Cress. 277, Bell v. Belson, 3 Chit. Rep. 157; or the submission is by bond only, in which case they have power to award costs, as between attorney and client. Hartnell v. Hill, For. Ex. Rep. 74; and see ante, Mod. Prec. 3d Edit. Vol. VI. p. 72, in notes.

the award.

consent of

parties.

Nomine pœnæ, for performance of the award.

Arbitrators may award a reason

able sum to themselves, if autho

rized to do so.

Costs of referawarded, if arbience may be

trators are autho

rized to do so.

AGREEMENTS.

Reference of Disputes.

abide the event of the said award, and be borne and paid by the party or parties, and at such time and manner as the same shall therein or thereby be ordered or directed to be paid or borne, and be reckoned and allowed in all things, as between party and party, and not as between attorney and client. IN WITNESS, &c. SIGNED, SEALED, &c.

Arbitrators may

award.

**It has been determined, [as will be perceived by a preceding note, enlarge time for (see ante, p. 213. n. (3),] that arbitrators may have power given them by the deed of submission, to enlarge the time of making their award of their own authority should they think proper; but should the submission not contain such authority, and any circumstances should arise to render it expedient that a further time should be allowed them for that purpose, it cannot be done without the consent of the parties in difference, which may be given by an indorsement on the deed in the following form:

Form of enlargement of

ties.

"KNOW ALL MEN BY THESE PRESENTS, that we the within time by the par- named (parties in difference), for ourselves severally and respectively, and for our several and respective heirs, executors, and administrators, do, by this instrument under our hands and seals, grant and allow unto the within named (arbitrators) the further period of one calendar month, for making their award of and concerning the several matters so referred to them as within mentioned, in addition to and augmentation of the time within given or allowed to them for that purpose; and which said augmentation of time, it is hereby agreed, shall be without prejudice to the within mentioned bonds in any wise howsoever." IN WITNESS, &c.

Agreement to enlarge time includes all the terms of the ori

This agreement virtually includes all the terms of the original submission to which it has reference, and therefore the submission for such enlarged time may be made a rule of Court without its being so ginal submission. expressly mentioned, Evans v. Thompson, 5 East, 189.

Form of enlargement of

66

If the arbitrators have the power of their own authority to enlarge the time for making their award, it may be to the following effect: KNOW ALL MEN BY THESE PRESENTS, that we the within named time by the arbi- (arbitrators), being desirous of having further time for considering the matters within referred to us, HAVE (as within authorized in that behalf), and by this writing under our hands, Do extend and enlarge the time within given to us for making our award, until the day of now next ensuing." IN WITNESS, &c.

trators.

Stamp.

No stamp seems to be necessary on this instrument, and see Herne et alt. v. Hale, 3 Esp. Rep. 237.

AGREEMENTS.

Retain Pur

chase-money.

No. LXIV.

*An Agreement between a Vendor and Purchaser for retaining part of the Purchase Money, until a Minor attain twenty-one and execute Conveyance.

ARTICLES of agreement indented made this

day of

in the

year of our Lord 18 BETWEEN (the vendor) of, &c., of the one part, and (the purchaser) of, &c., of the other part. WHEREAS, &c. Recitals. [recite shortly the deed or will by which the legacy or portion is charged upon the premises.] AND whereas the said (minor) is at present under the age of twenty-one years, namely, of the age of or thereabouts. AND whereas the said (purchaser) hath lately agreed with the said (vendor) for the purchase of a part of the hereditaments upon which the said legacy or sum of £ is made chargeable as aforesaid, at the price or sum of L but the said (minor) by reason of his minority, being incompetent to join in the conveyance of the said premises, or to release the same from the said sum of L it was agreed upon the treaty for the said purchase, that the said (purchaser) should retain in his hands the sum of £

part of the said purchase-money, upon and for the trusts and purposes hereinafter expressed, until the said (minor) should attain the age of twenty-one years, [upon &c. (1)]. AND whereas, by indentures of lease and re

(1) If the purchaser is to give a bond for payment of the money to the trustees or executors, which in some cases may be reasonably required, as where the premises are leasehold, and the executors or trustees are answerable for payment of the legacy or portion, and the premises are deemed an inadequate security for the sum retained, say,

"Upon his entering into a bond for payment thereof, with interest, at the time and in the manner hereinafter mentioned, and the said (purchaser) hath accordingly, by his bond or obligation in writing, bearing even date, become bound to the said (executors or trustees) in the penal sum of £ with a condition thereunder written for making void the same, on payment by the said (purchaser), his heirs, executors, or administrators, of the sum of £ and interest, at the times and in the manner following (that is to say) &c." (as the case may be).

SUP.-VOL. I.

R

Bond.

AGREEMENTS.

Retain Purchase-money.

WITNESS. Purchaser will

of purchase

in

lease, the lease bearing date the day next before the date of the release, and the release bearing even date herewith, and made BETWEEN, &c., the said hereditaments were conveyed and assured to the said (purchaser) and his heirs, in consideration of his paying down the sum of £ part of the said purchase-money, and retaining the sum of £ , being the remainder thereof, upon the trusts, and for the ends and purposes, and subject to the provisoes and agreements expressed or to be expressed concerning the same, in or by a certain deed or agreement therein mentioned to bear, or intended to bear, even date therewith, meaning and referring to these presents: Now THESE PRESENTS WITNESS, that in considerastand possessed tion of the agreements and premises aforesaid, it is hereby demoney retained. clared and agreed by and between the parties hereto, and particularly the said (purchaser) (1), for himself, his heirs, executors, and administrators, doth hereby covenant, agree, and declare, to and with the (vendor), his executors, administrators, and assigns, that he the said (purchaser), his executors and administrators, shall and will stand and be possessed of and interested in the said sum of L , together with interest for the same, after the rate of per cent. per ann. upon the trusts, for the intents and purposes, and subject to the provisoes and agreements hereinafter declared In trust for mi- or expressed concerning the same (that is to say), IN TRUST for the said (minor) until he shall attain the age of twenty-one years, or shall depart this life under that age, or shall upon attaining that age neglect or refuse to execute such deed or deeds as hereinafter is or are mentioned; and in case the said (minor) shall attain his age of twenty-one years, and shall execute such deed or deeds, then upon trust to pay the same (2), with all interest accrued

nor, &c. till he attain twenty

one;

or refuse to execute release.

Bond.

Expences.

(1) If a bond be given to the trustees or executors for payment of the money to them, say,

"The said (trustees or executors) for themselves severally and respectively, do hereby covenant, &c. that they the said (trustees or executors) respectively, shall and will stand, &c. [as above]."

"The sum of £

(2) If a greater sum than that chargeable upon the premises be retained by the purchaser, to indemnify against expences, say, with interest, &c., part of the said sum of L so by him retained as aforesaid, unto the said (minor), his executors, administrators, or assigns, and the remainder thereof unto him the said (vendor), his executors, &c. or other person or persons who shall or may under or by virtue of the said in part recited will or settlement be entitled thereto."