Assignment, (Clerkship). No. CXXIV. int property profit advantage claim and demand whatsr or howsr to arise be had or made to him the sd (O. M.) from henceforth of the service of the sd (C.) during the now residue. of the sd term of new master. And also yrs by force or virtue of the sd recited articles or orwise howsr And he the sd (N. M.) for himself &c. doth hby covt &c. with the said (O. M.) in manner &c. That he the sd (N. M.) shall and will at all times during the sd residue of &c. in the best manner he can instruct the sd (C.) as his clk Covenant from in the business practised &c. And also that he the sd (N. M.) his &c. shall and will from the day of the date hereof at his and their own costs and charges find allow and provide the sd (C.) in competent and sufficient meat &c. and thereof and therefrom save harmless and indemnified the sd (O. M.) his &c. shall and will pay to the sd (C.) during the last sd term the yrly sum of £ for and towards his expenses in providing clothes &c. And each of them the sd (O.) and (N. M.) doth hby sevlly covt with the sd (C.) that they the sd (O.) and (N. M.) at the request cost and chas of the sd (C.) at any time after the expiration of the sd term of yrs shall and will sevlly certify the respive times of service of him the sd (C.) with them the sd (O.) and (N. M.) and also at his request &c. do any or. Iful act for getting him to be admitted an atty &c. which shall be adjudged necessary for that purpose In witness &c. see ante, No. XLVI. yrs of the Submission, how made. SECT. 1. An agreement to refer any matter in dispute, commonly called a submission, may either be purely by the act of the parties themselves, or it may be by the interposition of a court of law. In Arbitration. the former case the submission may be by parol, but in the latter case By parol. it appears that a submission, unless in writing, cannot, by the 9th and By deed. 10th Will. 3, c. 15, be made a rule of court, Sammways v. Elderley, 2 Mod. 73; 7 Ves. 419; Ansel v. Evans, 7 T. R. 1; see further Dig. p. ii. tit. ARBITRATION. When the submission is in writing, it usually is with mutual covenants, under a penalty; sometimes by indenture or deed poll, or by bond, each party executing an obligation to the By bond. other, 8 Co. 80; Sammways v. Elderley, 2 Mod. 73. submission. 2. Every one who is capable of making a disposition of his pro- Paies to the perty, or a release of his right, may be a party to a reference, but not such as are under any natural or civil disability, as femes coverts, infants, &c. (see AGREEMENTS, Pref. sect. 2.) A married woman may, however, be made a party to a submission in any matter affecting her separate property, Stra. 351; Bateman v. Countess of Ross, Dow. 235. Those only who are parties to the submission shall be bound by it, 2 Mod. 228. But a man is bound by an award to which he submits for another, as a husband for his wife, Sty. 351; a guardian for an infant, Latch, 207; or one of many partners for the rest, 2 Mod. 228. An attorney may submit to arbitration for his client, Cayhill v. Fitzgerald, 1 Wils. 28, 58; but a submission by bond binds himself, 12 Mod. 129. 3. At common law, where a cause was depending, the submission might be made a rule of court before the trial. The 9 & 10 Will. 3 extends this privilege to parties where no action has been brought, Caldw. Arbit. 17; see also Dig. p. ii. tit. ARBITRATION. As to the effect of an agreement or covenant to refer to arbitrators, it was formerly held, that such a reference was an implied stay of proceedings in a court of law, 1 Mod. 24; but it was afterwards determined by a rule of court, that no reference of a cause depending in the King's Bench should stay proceedings, unless it was expressed in the rule of reference to be agreed, that proceedings in this court should be stayed, 2 Ld. Raymd. 789; so likewise if no step has been taken towards a reference, a mere agreement to refer will be no bar to an action, Kill v. Hollister, 1 Wils. 129; and it has been frequently held, that such an agreement will not oust the courts of law or equity of their jurisdiction, Thompson v. Charnock, 8 T. R. 139; Street v. Rigby, 6 Ves. 818: and an action is not maintainable on a covenant to refer disputes to arbitration, Tattersall v. Groote, 2 B. & P. 131; and even if it be expressly stipulated in the agreement, that there shall be no action or suit at law or in equity, it seems that a court of equity will not, except in particular cases, enforce specific Force of an agreement to efer to arbi ration. Arbitration. performance of such an agreement, Waters v. Taylor, 15 Ves. 10; Gourlay v. D. of Somerset, 19 Ves. 430. What matters 4. The proper matters for arbitration are penal wrongs and uncermay be referred. tain obligations, as trespasses, reckonings, and the like, 9 Co. 78. Things in the realty may be submitted; for although no freehold can pass by the award, arbitrators may award that lands shall be conveyed, or that one party shall give the other a bond for quiet enjoyment and the like, Dy. 242; Bac. Ab. tit. Award, [A]. Extent of submission. Power of examining on oath given to arbitrators. Time of making the award. Submission void or revoked. 5. The extent of the submission may be various, according to the pleasure of the parties, as of one particular matter only, or of many or every subject of litigation between them, which ought to be carefully expressed in the submission, to avoid ambiguity. A submission "of all matters in difference between the parties in the cause," and one "of all matters in difference in the cause between the parties," is not the same thing. By the former mode of expression, the submission is not confined to the subject matter of the particular action, as it is by the latter, Malcolm v. Fullarton, 2 T. R. 45. 6. It is usual to vest in the arbitrators a power of examining the parties and their witnesses upon oath, but if it were not a part of the agreement, the Court could give them the authority to examine upon oath; and the parties submitting could not authorize the arbitrators or any other person to administer the oath, for an extra-judicial oath is not binding so as to incur the penalty of perjury. Now by the 3 & 4 Will. 4, c. 42, s. 39, the arbitrators are empowered to administer an oath or take an affirmation in all cases: so likewise by s. 40 of the same statute, arbitrators are empowered to compel the attendance of witnesses, whether the submission be by order of court or by private agreement. 7. It is proper to fix the time within which the arbitrators shall pronounce their award; but where the submission limits no time, it shall be understood to be made within convenient time. If by the terms of the submission the arbitrator be enabled, as he frequently is, to enlarge the time for making his award, he may enlarge it more than once, Barrett v. Parry, 4 Taunt. 658. 8. The submission in general becomes void by the death of either of the parties, Potts v. Ward, 1 Marsh. 366; and may also be revoked by either party previous to the award being made and delivered, Clapham v. Higham, 7 B. Moore, 403; S. C. 1 Bing. 87. If the submission be by parol, the revocation may be by parol also, 2 Keb. 64; but where the submission is by deed, the revocation must be of as high a nature as the submission, 8 Co. 80b; Milne v. Greatrix, 7 E. 607; and where the submission is made a rule of court, it cannot, by 3 & 4 W. 4, c. 42, s. 39, be revoked without leave of the court. There may also be a virtual as well as an express revocation; as if a feme sole submit to arbitration, and marry before the award is delivered, the marriage is in effect a revocation, 2 Keb. 8, 65. In all cases of revocation where the submission is by bond, the bond is forfeited, 1 Brownl. 62. Arbitration 9. It is usual to insert in the submission the words " so as the ar- Publication of bitrator shall make and publish his award;" but the term "publish" an award. ence. 10. Arbitrators cannot award the costs of reference, unless such Costs of referpower be given to them for that purpose in the submission, 1 Cowp. 127; Whitehead v. Firth, 12 E. 166; and therefore where it is agreed that all the costs shall abide the event of the award, the arbitrator can make no award respecting the costs, Boodle v. Davis, 4 Nev. & Man. 788. If no direction be given respecting the costs of the award, they are to be paid by both parties equally, Grove v. Cox, 1 Taunt. 165; Hullock on Costs, 424. The safer and more usual way is to provide in the submission, that the costs shall be in the discretion of the arbitrator, Tidd's Pract. 825. 11. As an arbitrator is appointed at the discretion of the parties, Arbitrators, who any one whom the law supposes free, and capable of judging, may be may be. chosen, even although he may be an interested party himself, or related to the opposite party, Comb. 218, unless his interest in the subject of reference or connexion with the opposite party was unknown at the time, 2 Vern. 251. Where there are two arbitrators only, and Umpire. arbitrators. 12. Arbitrators cannot reserve to themselves an authority to decide Proceedings of at a future period any point relating to the matter referred to them, Palm. 145; 12 Mod. 139. Nor can they delegate their authority to others, 2 Atk. 504; but where arbitrators award the substance of Arbitration. Requisites of an awaid. Award by parol or by deed. Delivery of an award. Performance of an award. Stamp duty. a thing to be done, they may refer it to others who are competent to settle the manner in which it shall be put into execution, ib. 501, Emery v. Wase, 5 Ves. 846. Likewise arbitrators deriving their authority from the submission, their decision must not extend to persons and things beyond the scope of the submission, 2 Mod. 309. In any case of flagrant misconduct on the part of an arbitrator, the injured party may maintain an action against him to recover a compensation in damages, 2 Wils. 148; or file a bill against him in equity, Lonsdale v. Littledale, 2 Ves. Jun. 453. 13. As to the requisites of an award, see post, AWARD. 14. An award may be either by parol or by deed, 1 Salk. 75. If by the terms of the submission the award must be under the hands and seals of the arbitrators, sealing only is not sufficient, Palm. 109. 15. An award takes effect from the time of delivery, not from the day of the date, 3 Bulstr. 313. If an award be ready for delivery on a certain day, fixed in the submission, it is sufficient, although no delivery be made, Brown v. Vawser, 4 E. 584. 16. Where parties bind themselves jointly and severally to perform` an award, and two or more parties on one side be ordered to pay any sum of money, or do any particular act, each is answerable for the obedience of the others, Mansell v. Burridge, 7 T. R. 352. If no time be limited for the performance of what is directed to be done, it must be performed within a reasonable time, Jeuk. 136. If a thing is awarded to be done within a certain day after the date of the award, and it has no date, the day of delivery must be adopted in its place, Armit v. Breame, Ld. Raymd. 1076. Executors must obey the directions of an award, although not named in it, 2 Vent. 249. Where the submission is the mere act of the party, whether by parol or by obligation, performance may be enforced by an action upon the award or the submission, 1 Leon. 72; 1 Ld. Raymd. 122. If the submission be made a rule of court, non-performance is a contempt, and obedience to it may be enforced by attachment, otherwise the party may have his remedy by action, 1 Saund. 326; Stra. 695; Tidd's Pract. 834. When the payment of money only is awarded, application ought to be made to a court of law for enforcing payment; but where any thing is directed to be done in specie, as to convey an estate, a bill in equity for specific performance will lie, Hall v. Hardy, 3 P.Wms. 187. 17. As to the stamp duty on the arbitration bond, see post, BOND; on awards, see post, AWARD. See further as to Arbitration, Kyd on the Law of Awards; Watson on Arbitration and Awards; and Caldwell on Arbitration. |