(Post-obit bond.) Condition. (Condition of an arbitration bond.*) Witnesses to be examined on oath. Now, the condition of the above-written obligation is such, that if, in the event of the said E. F. departing this life in the lifetime of the said C. D., the said C. D., his heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid, unto the said A. B., her executors, administrators, or assigns, within six calendar months next after the decease of the said E. F. aforesaid, in the lifetime of the said C. D., the sum of, &c., of lawful money of Great Britain; or in case the said C. D. shall happen to depart this life in the lifetime of the said E. F.; then, &c. Whereas certain differences and disputes have 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 Westminster, pursuant to the statute in such case made and provided. And it has been further agreed, that the witnesses, as well of him, the said A. B., as of 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. an arbitration bond.) reference hereby intended to be made, and of all (Condition of costs, charges, and expenses incidental or relating 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 to 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 borne, and when paid. Now, the condition of Condition. a The following are the usual indorsements : 66 of the accept 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 apdispute 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 1st day of May 184 ." of a joint ar 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- appointment 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 or within-written bond, or obligation, or indenture." 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.” other instru ment of arbi appointment "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 on bond of each of them had to offer and allege in his behalf, but not of umpire by 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 nominated given to us by the within-written agreement, elect, nomi- in bond. 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, (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 day of now next 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 parties in 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 arbitrators. Nomination of umpire by a separate instrument. “We, the undersigned arbitrators, by virtue of the powers given to us for this purpose, do hereby extend and enlarge the time for making our award until the now next ensuing. In witness," &c. day of If the nomination of an umpire be by a separate instru ment, it may be thus: "To all to whom these presents shall come, &c. Whereas [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. bond.) said C. D., his heirs, executors, or administrators, do (Conditions of and shall, upon his or their part and behalf, in all an arbitration 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 bond. 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, 1 Ld. Raymond, 115,) but Submissions a conveyance or release of land may be awarded, (3 Bl. Com. 16.) After the making of the award the submission is not revocable. Before the recent act of 3d and 4th William IV., not revocable. cap. 42, either party might have revoked his submission at any time before the making of the award, and before the submission was made a rule of court; but by the 39th section of that act, it is enacted, that submissions by rule of court shall not be revocable by any party without leave of court, but that the arbitrator may proceed with the reference, notwithstanding any revocation. The death of any of the parties, before the award is made, in most cases, determines the arbitrator's powers, unless it has been otherwise agreed. A parol submission cannot be made a rule of court. (Ansell v. Evans, 7 T. R. 1; Godfrey v. Wade, 6 Moore, 488.) See Awards, p. 311. Recital. BAIL BOND. Whereas the above-bounden C. D. was on this, &c., taken by the said sheriff in the bailiwick of the said sheriff, by virtue of the Queen's writ of capias issued out of her Majesty's court of, &c., bearing date at Westminster, the, &c., to the said sheriff directed, and delivered against the said C. D. in an action on, &c., (as the plea is,) at the suit of A. B.; and whereas a copy of the said writ, together with every memorandum and notice subscribed thereto, and all indorsements thereon, was on the execution thereof delivered to the said C. D.; and whereas he is by the said writ required to cause special bail to be put in e Phipps v. Ingram, 3 Dowl. P. C. 669. f For some exceptions to this rule, see 3 Dowl. and R. 610; 4 Id. 741; 2 B. and C. 345; Clarke v. Crofts, 4 Bing. 143. Toussaint v. Hartop, 7 Taunt. 571; MacDougall v. Robertson, 2 Yo. and J. 11; 4 Bing. 143. |