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pay, or cause to be paid, unto the executors or ad- (Annuity ministrators of the said A. B. a proportional part of bond.) the said annuity of L. for the time which, at the decease of the said A. B., shall have elapsed of the quarterly payment thereof then growing due, without any deduction or abatement whatsoever ; then this obligation shall be void and of none effect, or else to remain in full force and virtue. Whereas the above-named A. B. hath contracted (Post-obit
bond.) and agreed with the above-bounden C. D. for the
Recital. purchase of the sum of L. , to be paid to her, the said A. B., her executors, administrators, or as. signs, in the event of E. F. departing this life in the lifetime of the said C. D., but not otherwise, at or for the price or sum of, &c. And whereas, in performance of the said recited contract, she, the said A. B., hath paid the sum of, &c., of lawful money of Great Britain, unto the said C. D., at or before the sealing and delivery of the above-written obligation, the receipt and payment whereof accordingly the said C. D. doth hereby accordingly acknowledge. And whereas, upon the treaty for the purchase of the said contingent sum of L. , it was agreed that the payment thereof should be secured by (among other securities) the bond of the said C. D.
c Where it is a loan, the recital may be thus : “ Whereas the above-bounden (obligor) is in expectation of receiving a considerable sum of money and other property, upon the decease of, &c., his father. And whereas the said (obligor) is now of the age of years, or thereabouts; and the said father is of the age of, &c., or thereabouts, and in good health. And whereas the said (obligor) having occasion for the sum of L. to supply his iminediate occasions, hath applied to the said (obligee) to lend him the same upon his entering into the above-written obligation, together with a warrant of attorney for entering up judgment, as hereinafter is mentioned.” (As to the validity of these bonds, see Whar. ton v. May, 5 Ves. 27 ; Lushington v. Waller, 2 Hen. Black. 95; Bernall v. Marquess of Donegal, 3 Dow, 133 ; Curting v, Marquess of Townshend, 19 Ves. 628; Murray v. Stair, 2 Bar. and Cress. 82, 83; Dow and Ryl. 278.)
(Post-obit , Now, the condition of the above-written obligation bond.)
is such, that if, in the event of the said E. F. departCondition.
ing this life in the lifetime of the said C. D., the said
then, &c. (Condition of Whereas certain differences and disputes have an arbitration bond.)
arisen, and are now depending between the abovebounden A. B. and the said C. D., respecting, &c.; and it has been agreed by and between the said A.B. and the said C. D. to refer the same to R. S. and T.
W. as arbitrators, as also all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, both at law and in equity, or otherwise howsoever, which at any time or times heretofore have been had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending, by and between the said parties, with liberty to the said arbitrators to appoint, choose, and name an umpire. And whereas it hath been agreed that this submission shall or may be made a rule of her Majesty's court of, &c., at West
minster, pursuant to the statute in such case made Witnesses to and provided. And it has been further agreed, that
the witnesses, as well of him, the said A. B., as of on oath,
the said C. D., shall be examined on oath by the said referees or their umpire, as aforesaid, touching the matters in difference between the said parties. And that the costs, charges, and expenses, as well of preparing and executing these presents, as of the
* See Agreements for Reference, p. 227.
reference hereby intended to be made, and of all (Condition of costs, charges, and expenses incidental or relating an arbitration thereto, (and likewise the costs and charges of the said action,) shall be in the discretion of the said referees, or the said umpire so tu be elected as aforesaid, who shall, in their or his award or umpirage, order and direct by which of the said parties, or in what proportion between them, the same shall be horne, and when paid. Now, the condition of Condition.
The following are the usual indorsements:“ We, the undersigned A. B. and C. D., the referees (Memoran-within-named and appointed, do hereby accept of the ap- dum written pointment as arbitrators, for the purposes therein expressed;
on the bond and for the proceeding in the investigation of the matters in ance of the ap
of the acceptdispute and difference between the parties in difference with- pointment in-mentioned, we appoint and fix to meet at the house of of arbitraE. F., in, &c., by 11 o'clock in the forenoon. Witness our tors.) hands, this Ist day of May 184 .”
“We, A. B. and C. D., the arbitrators within-named, by (Memoranthis memorandum in writing, under our hands, made before dum of an the entering upon the within-mentioned arbitration, do here- a
of a joint ar by nominate and appoint E. F., of, &c., the third arbitrator, bitrator, into whom, together with ourselves, the within-mentioned dorsed or matters in dispute between the parties within-named are re- written upon ferred, according to the tenor and effect of the within rule, bond, or
other instruor within-written bond, or obligation, or indenture.”
ment of arbi. If the consent of the third person has not been obtained, tration.) add, “On condition that he do, within days from the date hereof, by some writing under his hand, consent to act therein accordingly.”
“We, the undersigned A. B. and C. D., the arbitrators A memoranwithin-named, having considered of the said matters in dif. dum indorsed ference between the said parties, and having heard what o
on bond of each of them had to offer and allege in his behalf, but not Of umpire by
appointment having agreed in opinion in relation to the same, so as to arbitrators, enable us to make an award between the said parties in dif- when one is ference, do hereby, in pursuance of the power and direction not nom
nd direction not nominated
in bond. given to us by the within-written agreement, elect, nomi- om nate, and appoint E. F., of, &c., to be umpire between the said parties in relation to the matters in difference between them as aforesaid. As witness," &c.
“Know all men by these presents, that we, the within-nam
(Conditions of this obligation is such, that if the above-bounden C. an arbitration D., his heirs, executors, or administrators, do and bond.)
shall, upon his or their part and behalf, in all things well and truly stand to, obey, abide, observe, perform, fulfil, and keep the hereinbefore recited agreement, and the award, arbitrament, final end and determination of the said arbitrators, so as the said award be made in writing on or before, &c., (or on or before such other day not extending beyond the, &c., as the said arbitrators shall, by writing to be indorsed on these presents, from time to time appoint ;) or if the said arbitrators cannot agree and determine the same premises, and do not make such their award by the time aforesaid, that then, if the
Enlargement ed A. B. and C. D., do give and grant unto the withinof time by the named C. D. and E. F., until the day of now next parties in dis- ens
dis. ensuing, for making their award of and concerning the sepute.
veral matters and things to them referred, as within-mentioned; so that they make their award in writing under their respective hands and seals, ready to be delivered unto the said parties in difference on or before the said day of
In witness," &c. The like by “We, the undersigned arbitrators, by virtue of the powers arbitrators. given to us for this purpose, do hereby extend and enlarge
the time for making our award until the day of
In witness," &c. Nomination of If the nomination of an umpire be by a separate instruumpire by a ment, it may be thus : ' separate
“ To all to whom these presents shall come, &c. Whereas instrument.
[here recite the bond, or instrument of arbitration, ] and we, the said A. B. and C. D., having taken the matters so referred to us into our consideration, but not being able to agree in opinion concerning the same, have chosen E. F., of, &c., to be an umpire touching the premises. Now know ye, that, in pursuance of the power and authority so vested in us by the said hereinbefore in part recited agreement, we, the said arbitrators, do hereby elect, nominate, and appoint the said E. F. to be umpire between them, the said parties in dispute, in relation to the matters so in difference between them, and so referred to us as aforesaid. In witness," &c.
said C. D., his heirs, executors, or administrators, do (Conditions of and shall, upon his or their part and behalf, in all an arbitration
bond.) things well and truly stand to, obey, abide, observe, perform, fulfil, and keep the award, order, arbitrament, umpirage, final end and determination of such person as the said arbitrators shall elect, choose, and name as umpire, as aforesaid, (which umpire is to be elected and chosen by the said arbitrators previously to their proceeding upon the said reference,) so as the said umpire do make his award and umpirage in writing on or before, &c. ; then this obligation to be void, otherwise to remain in full force and virtue.
Observations on Arbitration Bonds. If an agreement or indenture has been entered in- By indenture to by the parties in respect to the submission, and and the bond is for the performance of the award to be made in pursuance thereof, the instrument should be recited shortly thus : “And whereas they, the said, &C., by an indenture bearing even date with the above-written obligation, and made, or expressed to be made, between the said A. B. of the one part, and the said C.D. of the other part, have agreed to refer and execute mutual bonds for the performance of the award of the said, &c., with such condition to be thereunder written for making void the same as hereinafter is expressed."
It is sometimes prudent to take a warrant of at. As to real torney to confess, &c., as a collateral security, to property. compel the performance of an award as to the title of land, with a defeasance that no execution shall be taken out unless the arbitrator by his award should direct the defendant to yield possession, which, if the party directed so to do should refuse, the warrant of attorney, given as in ejectment, might be entered up, and possession obtained. (See Chitty's Archbold, p. 1023.)
A right of real property cannot pass by mere award, (Marks v. Mariot, i Ld. Raymond, 115,) but