No. LXII.

*An Agreement to Purchase Stock sold out for the Accommodation of a Borrower and pay amount of Dividends in the meantime (1).

AGREEMENTS.

Purchase Stock

MEMORANDUM of an agreement made this

year of our Lord 18

day of

BETWEEN, (the lender) of, &c., of

in the the one part, and (the borrower), of, &c., of the other part: WHERE- Recital of loan. As the said (lender), on or about the

day of

last, at the request of the said (borrower) sold out £ in the three per cent. Consolidated Bank Annuities, then standing in his name in the Books of the governor and company of the Bank of England, at the then market price of £ per cent. (producing in the whole after deducting commission, the sum of £ ); and advanced the same to the said (borrower) on his promising and agreeing to replace the said Bank Annuities on or before the

day of

and

Borrower will

in the mean time to pay the said (lender) an annual sum equal to the dividends from time to time payable for the same annuities. Now WITNESS. THESE PRESENTS WITNESS, that the said (borrower), for himself, transfer stock, his heirs, executors, and administrators, doth hereby promise, declare, and agree to and with the said (lender), his executors, administrators, and assigns, that he the said (borrower), his executors or administrators, shall and will on or before the

day of

which will be in the year 18 (or next ensuing the date hereof), well and truly transfer, or cause and procure to be transferred unto, in the name and to the account of him the said (lender), his executors, administrators, or assigns, in the said books of the governor and company of the Bank of England £ three per cent. Consolidated Bank Annuities, in the said fund of the said governor and company; AND likewise shall and will in the mean time, and until such transfer shall be made and perfected, pay or cause to be paid unto him the said (lend

(1) The payment of the dividends on stock sold out is not usurious, although they may happen to amount to more than 5l. per cent. on the produce of the stock sold, see Clarke v. Giraud, 1 Mad. 511.

and pay amount of dividends in

the meantime.

AGREEMENTS.

er), his executors and administrators, such sum and sums of money Purchase Stock. of lawful English value and currency, as shall be equal to the amount of the dividends or annual sums which he the said (lender), his executors or administrators, would have received or been entitled unto in case the said L had remained standing in the books of the said governor and company in the name and as the property of him the said (lender), his executors or administrators; and at and upon such days or times as the said dividends or annual sums would have been or are customarily payable, viz. on the 5th day of January and the 5th day of July in every year, without any deduction or abatement whatsoever. IN WITNESS, &c.

No. LXIII.

An Agreement to refer Disputes to the Arbitration of Persons named, and Covenant to abide the Award (1).

Variations where the submission is in pursuance of a prior agreement for a reference.

AGREEMENTS.

Reference of Disputes.

(1) References to arbitration for determining disputes between parties Submission faare greatly countenanced and encouraged, as well by the courts as the voured by the legislature, see 9 and 10 Will. 3. c. 15; as being calculated to afford re- Courts. dress without the expense and delay of litigation; they will not therefore listen to any objections against the submission which do not go to the substance of the rights between the parties, Browne v. Browne, 1 Vern. 157; Lingood v. Eade, 2 Atk. 505; Tittenson v. Peat, 3 ib. 529; nor raise any presumption against the validity of an award honestly made by the arbitrators, Knox v. Symonds, 1 Ves. jun. 369; Sumpter v. Life, 2 Dick. 474: but will on the contrary raise presumptions requisite to substantiate it, Crofton v. Connor, 1 Brow. P. C. 530; Routh v. Peach, 2 Aust. 519; and as sufficient powers may be given to the arbitrators fully to ascertain the interests, and award redress between the parties, it were much to be wished that this species of tribunal were more generally resorted to.

As to references to arbitration of disputes between masters and work- 4 Geo. 4. c. 96. men, see 4 Geo. 4. c. 96. post, p. 245.

Parol submis sion revocable

by parol.

Submission

rule of court.

(2) A submission to arbitration will be good, although made by parol, but as it will then be revocable also by parol, whilst otherwise it will be revocable only by deed, and if by parol be liable to great uncertainty as to the terms of submission; it is more proper that it should be by some instrument in writing, with mutual covenants, under a penalty to stand to be made a to the award, 8 Co. 80 b; Samways v. Eldesly, 2 Mod. 73; v. Mills, 7 Ves. 419, and Kyd. Aw. 11; nor can it (it should seem) unless in writing, be made a rule of court. See the above act 9 and 10 Will. 3; Ansel v. Evans, 7 Durnf. and E. 1 ; and — v. Mills, ubi sup. (3) Care should be taken to make all parties interested in the event of All parties inthe award parties to the submission, as no others will be bound by the terested to be reference; Thompson v. Noel, 1 Atk. 60; but all persons being parties submission. and sui juris will be bound by the award; Price v. Williams, 1 Ves, Jun.

365.

.

parties to the

AGREEMENTS.

Reference

of Disputes.

WITNESS.

Parties agree to

arbitration, and

covenant to abide the award.

WHEREAS (1) dis

party in difference), of, &c., of the other part. putes have arisen between the said (parties in difference) relative to [here state the subject of difference between the parties]. AND WHEREAs they the said (parties in difference) have agreed to refer the same to the judgment and determination of (the arbitrators), of, &c., and such other person, if any, as they may think proper to name in pursuance of the power hereinafter contained. Now THESE PRESENTS WITrefer disputes to NESS, that in pursuance of the said agreement, they the said (parties in difference) for themselves severally and respectively, and for their several and respective heirs, executors, and administrators, do hereby covenant, promise, and agree with and to each other, and the heirs, executors, and administrators of each other respectively, in the manner following (that is to say), that they the said (parties in difference) respectively, and their respective executors and administrators, shall and will well and truly observe, perform, and keep the award, order, arbitrament, and final determination of the said (arbitrators), or of such other person as they shall or may name and appoint to assist them, or as umpire therein, or of any two of them, in or concerning the premises, (and although they or either of them the said (parties in difference) shall have previously departed this life), of and concerning all and all manner of differences (2), controversies,

Reference in pursuance of a prior agreement. See Variation in

Chitt. C.L. 369. bearing date the

(1) If the submission be in pursuance of a clause of reference contained in articles of copartnership, or other previous agreement, say, "WHEREAS by articles of copartnership [or as the case may be] day of which was in the year and made or expressed to be made between the said (one party) of the one part, and the said (other party) of the other part, it was amongst other things declared and agreed, that in case any dispute or question should arise between the said parties relative to the construction of the said articles, or all or any of the matters or things therein contained, the same should be referred to the arbitration of two indifferent persons, one to be named by each of the parties, with power for the said arbitrators so to be named to appoint a third person to assist them in the execution of the premises, and such other powers and authorities as are hereinafter given; and that the award of the said arbitrators or umpire should be final and conclusive upon all persons interested therein. AND WHEREAS disputes have arisen, &c."

as above.

(2) The death of either party will, unless otherwise provided, be a revocation of the arbitrator's authority, see Cooper v. Johnson, 2 Bar. and Ald. 394.; 1 Chit. Rep. 187; Potts v. Ward, 1 Marsh. 366, and Edmunds v. Cox, 2 Chit. Rep. T. Mansf. 432.

claims, and demands whatsoever, whether legal or equitable (1),
now subsisting or depending by or between the said parties, or
any of them, and so hereby to them referred as aforesaid, or any
thing in any wise relating thereto; so that the award of the said
(arbitrators), and of such other person as aforesaid, if any shall be so
appointed, or of any two of them, be made in writing under their re-
spective hands, within the space of one calendar month (2) from the
date hereof. PROVIDED NEVERTHELESS, that in case the said
(arbitrators) should be desirious of having further time for making
their award (3), not exceeding
days from the expiration

of the period hereby appointed for that purpose, and shall
signify the same under their hands by indorsement on these
presents, then and in such case the award so to be by them
made within the said further or extended period, shall be equally
binding and effectual as if the same had been made and declared at
or before the expiration of the said period of one calendar month
from the date hereof. AND IT IS HEREBY DECLARED AND AGREED

AGREEMENTS.

Reference of Disputes. So that the same may be made within a given time.

Power for arbi

trators to en

large the time.

Power for the arbitrators to ap

by and between all and every the said parties hereto, that if they the point an umpire. said (arbitrators) shall not agree upon the said award or determination to be by them made in or concerning the premises; or if before any such disagreement take place they shall think proper so to do, it shall be lawful for them the said (arbitrators), and they are hereby expressly empowered (4) by writing under their respective hands, to

(1) Matters of law as well as of fact may be referred to the decision Matters of law of arbitrators, if the parties so choose; Price v. Hollis, 1 Maul. and as well as of fact, Selw. 105; and the award, although not agreeable to law, will be bind- may be referred. ing, Ching v. Ching, 6 Ves. 282; Young v. Walter, 9 ib. 364; Kent v. Elstob, 3 East, 18; Stiff v. Andrews, 2 Madd. 6; Wood v. Griffiths, 8 Swains. 55, and cases there cited; but the submission must expressly authorise the arbitrators to decide on them, as otherwise their award, if contrary to a plain point of law, will be bad; Ridout v. Pain, 3 Atk. 494; if however the law be doubtful the award will be final, ib. sed vid. contrà, Blennerhassett v. Day, 2 Ball and Beatty, 120; Leonard v. Leonard, ibid. 171. 323.; and see post. AWARD.

(2) Unless an award be made within the time stipulated by the submission, it will not be binding on the parties; Cooth v. Jackson, 6 Ves. 34. (3) If arbitrators be allowed to extend the time of making their award to any future day, they may enlarge it more than once; Payne v. Deakle, 1 Taunt. 509; Barrett v. Parry, 4 ib. 658; and it is a matter which circumstances frequently render proper should be left to their discretion; Reid v. Fryatt, 1 Maul. and Selw. 1.

Award must be made within the

time limited, but may be extended.

so directed.

(4) Arbitrators cannot delegate their power unless they are expressly Umpire cannot authorised so to do by the terms of submission; where therefore there be named unless are but two arbitrators appointed, this power to name a third, or an umpire, is necessary; Lingood v. Eade, 2 Atk. 505; but such nomination shall be fair and impartial, and not left to chance, for the award of an