(3) INDORSEMENT OF ARBITRATORS APPOINTING Third ARBITRATOR. Form No. 2068. We, the within named Samuel Short and William West, do by this memorandum under our hands,1 nominate and appoint Mr. Joseph Hunt, of Riverhead, in the county of Suffolk, the third person or arbitrator, to whom, together with ourselves, all matters in difference between the said parties within mentioned shall be referred, according to the tenor and effect of the within deed.2 Witness our hands this first day of June, 1896. Signed in the presence of Joseph Jones. Samuel Short. William West.3 (4) Two ARBITRATORS AND A THIRD TO BE APPOINTED BY THE COURT. Form No. 2069. (Commencing as in Form No. 2068, and continuing down to *) as shall be appointed by the court in accordance with the statute in such case made and provided. (5) Two ARBITRATORS AND AN UMPIRE. Form No. 2070. To the award, order, final end, and determination of William West and Samuel Short, arbitrators, nominated by the said John Doe and the said Richard Roe respectively, and, in case they shall not agree, to the umpirage of Joseph Hunt.4 (6) Two ARBITRATORS WHO ARE TO APPOINT AN UMPIRE FROM TIME TO TIME. Form No. 2071. To the award, order, final end, and determination of Samuel Short, of Riverhead, in the county of Suffolk, and William West, by less than the whole number, or consent to a majority award is shown in some proper manner, all must concur or the award will not be binding upon the parties; but in nearly all the statutes provision is now made for a majority award. 1. If made before entering on the arbitration these words may be inserted: "made before we enter or proceed on the arbitration within mentioned." 2. Or "agreement" or "bond," as the case may be. 3. In Bryan v. Jeffreys, 104 N. Car. 242, it was held that the appointment of a third arbitrator by the two arbitrators appointed in the submission need not be under seal, although the agreement to submit was itself under seal. 4. In Price v. Kyle, 9 Gratt. (Va.) 247, the following indorsement on a bond of submission to arbitration was held to be a part of the bond itself: "I, the within bound John M. Price, having understood that the within named arbitrators, Thomas F. Michie and James L. Woodville, cannot agree upon an award in the within case referred to them, I am willing, and do hereby authorize the said arbitrators of Northport, in said county, and in case the said arbitrators shall not agree 1 in determining any matter or thing, or matters or things, hereby referred to them, the matter or thing, or matters or things, on which they shall not agree, shall from time to time be referred to and determined by such person as they, the said arbitrators, shall appoint 2 in writing [before they enter upon the consideration of the matters referred].3 (7) INDORSEMENT OF ARBITRATORS APPOINTING AN UMPIRE. Form No. 2072. We, the within named Samuel Short and William West, do hereby nominate and appoint Joseph Hunt, of Riverhead, in the county of Suffolk, to be umpire between us in and concerning the matters in difference within referred.4 Witness our hands this first day of June, A.D. 1896. Witness, Joseph Jones. Samuel Short. (8) PROVISION FOR APPOINTING NEW ARBITRATORS.6 Form No. 2073. And it is further agreed that in case the said Samuel Short shall die, or refuse or become incapable to act as arbitrator before the whole of the premises hereby referred shall be determined by the said arbitrators or their umpire, then the said John Doe, his heirs, executors, or administrators, shall forthwith thereafter nominate and appoint some other fit and indifferent person to be arbitrator in to choose an umpire, whose award I hereby bind myself, my heirs, etc., to submit to and abide and forever be governed by, in the premises. As witness my hand and seal this 8th day of April, 1847. John M. Price (SEAL)." 1. Where a submission authorizes and directs the arbitrators to select an umpire, it means that if there should be a disagreement the umpire shall settle it, but if, under such submission, there is no disagreement, and no umpire is chosen, the award will not be bad because the arbitrators did not choose an umpire. Rogers v. Corrothers, 26 W. Va. 245. mission required the three, in case of a disagreement between the first two, to deliberate conjointly upon the matters in dispute; if the one, however, upon being notified, refused to attend, it seems that the other two, upon agreement, might proceed to make a valid award. 3. Or if desired, the following clause may be substituted for the words enclosed in [ ] in the form: "and such appointment of an umpire shall from time to time be made, as soon as conveniently may be after such difference of opinion shall from time to time arise." 4. If it is desired the following clause may be inserted: "on condition that he do, within five days from the date hereof, by some writing under his hand, accept the umpirage." 2. In Mullins v. Arnold, 4 Sneed (Tenn.) 262, the instrument of submission contained the following provision: "In case said Bomar and Stokes cannot agree they shall select a third disinterested person as umpire, and in that case the determination of the majority shall be the award." It was held that the terms of the sub- trator. 5. See supra, note 3, p. 41. 6. This form may be used advantageously when each of the parties to the submission nominates one arbi the stead and place of the said Samuel Short, and so in like manner upon the decease, or neglect or refusal to act of any arbitrator succeeding to the place of the said Samuel Short; (here a similar clause should be inserted as to the arbitrator appointed by the other party, then conclude:) and that every arbitrator so to be appointed as a substitute for the said Samuel Short, or William West, or any succeeding arbitrator, shall have the same powers and authorities as the arbitrator for whom the substitution is made would have had if he had continued to act. (9) LIQUIDATEd Damages for REFUSING TO APPOINT NEW ARBITRATOR.1 Form No. 2074. And that if the said John Doe, or Richard Roe, or their heirs, executors, or administrators, or any of them, respectively, when bound to appoint a new arbitrator pursuant to the above provisions in lieu of any arbitrator who may die, refuse to act, or become incapable, shall neglect or refuse so to do for twenty-one days after a notice in writing on the part of the party, or parties, entitled to require such appointment shall have been served on the party, or parties, bound to make such appointment, then the latter party, or parties, shall pay to the former party, or parties, the sum of five hundred dollars by way of liquidated damages for such neglect or refusal. d. Formal Requisites of the Award. Form No. 2075. So as the above mentioned arbitrator (or arbitrators) make and publish his (or their) award in writing and signed by him (or them) of and concerning the matters referred, ready to be delivered to the parties or to either of them. Form No. 2076. So as the said arbitrators (or the said arbitrators or any two of them, or the said arbitrators or umpire) make and publish their (or his) award (or umpirage) in writing under their (or his) hands (or under their hands and seals) of and concerning the matters referred, ready to be delivered to the parties, or any of them. e. Provision in Relation to the Death of Either Party.2 Or if they, or either of them, shall be dead before the making of the award, to their respective personal representatives, who shall require the same. 1. This form should be used only when the preceding one has been, in which case it should follow it immediately in the submission. 2. In the absence of an express pro vision to the contrary, the death of either party to a submission has the effect of a revocation, unless the submission be a statutory one. Form No. 2078. That the submission hereby made shall not be defeated or affected by the death of the said parties or any of them pending the same, but shall or may be proceeded in, and the matters in difference determined in the same manner, as if the award of said arbitrators had been made or determined in the lifetime of the party, or parties, so dying, and the executor or administrator, executors or administrators, of the party, or parties, so dying shall be deemed and considered to be a party, or parties, to the reference or submission hereby made, any rule of law or equity to the contrary notwithstanding.1 f. Duration. (1) PROVISION FOR ENLARGING TIME. Form No. 2079. On or before the first day of June next, or on or before any other day to which the arbitrator (or arbitrators) shall, by any writing signed by him (or them) indorsed on this submission from time to time enlarge the time for making his (or their) award.2 (2) INDORSEMENT BY PARTIES ENLARGING TIME. Form No. 2080. We, the within named John Doe and Richard Roe, for ourselves severally and respectively, and for our several and respective heirs, executors, and administrators, do hereby give, grant, and allow unto the within named arbitrators further time for making their award of and concerning the several matters within referred to them, until the first day of July next. In witness whereof we have hereunto set our hands (or our hands and seals) the thirtieth day of May, A.D. 1896. Witness, John Jones. John Doe. Richard Roe. (3) INDORSEMENT BY ARBITRATORS ENLARGING TIME. Form No. 2081. We, the within named arbitrators, by virtue of the power to us given for this purpose, do hereby appoint, extend, and enlarge (or and further enlarge) the time for making our award until the first day of July next, on or before which said day our award in writing of and concerning the matters in difference within mentioned and referred to us shall be made and published. 1. This form may be added immediately after Form No. 2077, supra, if it is deemed desirable. 2. When the arbitrator is to have a limited power of enlargement these words should be used: "on or before the first day of June, 1896, or on or before any other day not later than the first day of December, 1896.” In witness whereof we have hereunto set our hands (or our hands and seals) the thirtieth day of May, A.D. 1896. Witness, John Jones. Samuel Short. (4) HEARINGS TO COMMENCE When. Form No. 2082. And said arbitrators are to commence their hearing on the eighteenth day of June, 1896, with power of adjournment from time to time, provided they shall make and publish their award in writing on or before the said first day of July, A.D. 1896. g. Costs. (1) TO BE IN THE DISCRETIon of the Arbitrators. Form No. 2083. And it is further agreed that the costs of preparing and executing these presents and a duplicate hereof, and the costs of reference and award, shall be in the discretion of the arbitrator (or arbitrators) who may direct to, and by whom, and in what manner the same, or any part thereof, shall be paid. (2) TO ABIDE the Event. Form No. 2084. And it is further agreed that the costs of the reference and award shall abide the event of the award. (3) Of Cause to Abide the EVENT.1 Form No. 2085. And it is further agreed that the costs of the cause 2 (or of the cause and of the special jury) shall abide the event of the award as to the cause, and the costs of the reference and award shall be in the discretion of the arbitrator who may direct to, and by whom, and in what manner the same, or any part thereof, shall be paid.3 1. This clause may be used when a pending suit has been referred. 2. In Averill v. Buckingham, 36 Conn. 360, it was held that the clause the costs on said suit in the Superior Court are to be taxed according to law in favor of the successful party, and the costs of this arbitration are to follow the award," meant that the arbitrators were to be governed by legal rules in estimating the amount of the costs, and not that the costs were to be taxed by the court independently of the arbitrators. 3. When the costs of the cause abide the event this clause may often usefully be added: "that the said arbitrator shall, unless requested in argument to find on any specific issues joined in the said action, be at liberty to find generally for the plaintiff or for the defendant; and that the costs of any specific issues, if found, shall abide the event of the award on each. ̈` |