« ForrigeFortsett »
(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
now next 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 “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 now next ensuing.
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
[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 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 reser 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
property. torney to confess, &c., as a collateral security, to 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
a conveyance or release of land may be awarded, (3 Bl. Com. 16.) After the making of the award the
submission is not revocable.e Submissions Before the recent act of 3d and 4th William IV., not revocable. cap. 42, either party might have revoked his sub
mission 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.
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
· Phipps v. Ingram, 3 Dowl. P. C. 669.
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.
for him in the said court, within eight days after exe- (Bail Bond.) cution thereof on him, inclusive of the day of such execution. Now, the condition of this obligation is condition. such, that if the said C. D. do cause special bailt to
The following is the form of a bail-piece :“ In the, &c.
The first day of, &c., in the year of our Lord 1840,
(the day and year of taking bail.)
shire, (to wit.) A. B., of, &c., having been arrested by virtue of a writ of capias, is delivered to bail to C. D., of, &c., and E. F., of, &c., at the suit of G. H.
Oath for L.
L. M., Agent.
N. O., a Commissioner for taking bail.” N.B.- If in the Exchequer, the bail must sign their names, but not in the other courts. If in the Common Pleas, add, “ each of the bail in L. ,” (double the sum sworn to by plaintiff.)
The affidavit of the due taking of bail is thus : “In the, &c., between, &c.
A. B., of, &c., maketh oath and saith, that the recognize ance of the bail or bail-piece hereunto annexed was duly taken and acknowledged by, &c., (the bail therein named) before R. S., gent., the commissioner, who took the same in this deponent's presence, the day of, &c., instant."
N.B.-The above affidavit must not be sworn before the bail commissioner, (1 M. Clel. and Yo. 149,) but before a commissioner of the court in which the action is brought, so that he be not the defendant's attorney.
The following is the common form of the affidavit of jus tification of bail, to be sworn before the bail commissioner: “ In the, &c.
Between, &c. C. D., of, &c., and E. F., of, &c., bail for the above- Common named defendant in this cause, severally make oath and say; and first this deponent C. D. for himself saith, that he is a
davit of justihousekeeper, [or freeholder, as the case may be,] residing at, &c., aforesaid, and is worth the sum of, &c., (double the amount indorsed for bail,) over and above what will pay his just debts, and over and above every other sum for which he
form of affi.
(Bail bond.) be put in to the said action in her Majesty's said
court, as required by the said writ, then this present
is now bail. And this deponent, the said E. F., for himself saith, that,” &c., (similar to the first deponent.)
See Rule, 19 Hil, T. 1832.
By adopting the following form of justification, the plaintiff, upon excepting, wili (upon allowance of bail) have to pay costs. “In, &c.
Between, &c. A. B., of, &c., one of the bail for the above-named dejustification, fendant, maketh oath and saith, that he is a housekeeper, [or (Rule 3, T. T. 1831.)
freeholder, as the case may be,] residing at, [describing particularly the street or place, and number, if any ;] that he is worth property to the amount of L. [the amount re. quired by the practice of the courts,] over and above all his just debts; [if bail in any other action, add," and every other sum for which he is now bail;”] that he is not bail for any defendant except in this action ; [or if bail in any other action or actions, add, “ except for C. D., at the suit of E. F., in the court of
in the sum of L. ; for G. H., at the suit of I. K., in the court of
in the sum of L. ;" specifying the several actions, with the courts in which they are brought, and the sums in which the deponent is bail ;] that the deponent's property, to the amount of the said suni of L. over and above all his just debts, (and if bail in any other action or actions, “of all other sums for which he is now bail as aforesaid,"] consists of [here specify the nature and value of the property, in respect of which the bail proposes to justify, as follows :—Stock in trade in his business of carried on by him at of the value of L. ; of good book-debts owing to him to the amount of L. ; of furniture in his house at of the value of L. ; of a freehold or leasehold farm, of the value of L. situate at
occupied by dwelling-house of the value of L. situate at occupied by ; or of other property, particularising each description of property, with the value thereof ;] and that the deponent hath for the last six months resided at [describing the place or places of such residence.]
; or of a