PART III. CH. II. S. 1. but not so if the attorney enter the continuance without his privity (r). The court has no power to order an award to be delivered up to be cancelled on paying the amount awarded (8). PART III. CH. II. S. 2. Whether request to execute the deed neces sary. Who to prepare and tender the conveyance for execution. Copyhold. SECTION II. PERFORMANCE OF AN AWARD DIRECTING THE EXECUTION Where the arbitrator directed that, on payment of the mortgaged debt, the mortgagee should reassign the mortgaged land, the duty of reassigning was held to attach, without any request from the mortgagor. And this distinction was taken by the court, that no request was necessary, because the reassignment might have been made without the presence of both parties, but that it would have been otherwise had the duty been to reinfeoff, because the intended feoffee must have been present to receive the livery (t). When the award orders conveyances of real or personal property, difficulties often arise as to which of the parties is to prepare and bear the expense of the instruments, and tender them for execution. In an old case, it is said, if a man be awarded to convey an estate to another person by such a time, he is to procure the conveyances to be made; or to convey an estate to another by such conveyances as shall be approved of by such a counsel, he is certainly to prepare the conveyances, and to procure them to be approved of by that counsel (u). In a more modern instance, where the award directed the lessor of the plaintiff to pay the defendant a certain sum for a piece of copyhold land, and that the defendant, in consideration of that sum, should, at the costs and charges of the (r) Gray v. Gray, Cro. Jac. 525. 526. (t) Rosse v. Hodges, 1 Ld. Raym. 233. ()Candler v. Fuller, Willes, former, surrender the land to his use, and that on such surrender being made and delivered to him, he should pay the defendant the price awarded; it was decided by the court that it was the defendant's business to prepare and execute the surrender, or at all events to give notice that she would attend on the steward of the manor to make it. It was proved that the defendant was requested to make the surrender, and that an offer was made to pay the price awarded, and the costs of the surrender, upon the surrender being effected by the defendant; and the court granted an attachment against her (x). It being referred to an arbitrator to decide whether a contract subsisted for the purchase of some land, and the award finding that the contract was in force, and directing the defendant to perform it, and to pay a certain sum on the conveyance of the land by the plaintiff to him, it was held that in order to bring the defendant into contempt for non-performance, the plaintiff should have executed and tendered a conveyance to the former and asked for the money (y). Both this case and the preceding one (z) were decided on what was supposed to be the general rule respecting the duty of a vendor on a contract for sale, to prepare and tender the conveyance for the execution of the vendee. But it seems, from Sir Edward Sugden's work on Vendors and Purchasers, that the rule, which never was sanctioned by the practice of conveyancers, has ceased to be law. PART III. CH. II. S. 2. on a contract The effect of what is there stated may be thus abridged: Ordinary rule When the contract for sale of lands is silent respecting the for sale of preparation and costs of the conveyance, it seems now to be lands. settled law, notwithstanding ancient cases, and many dicta to the contrary, that it is the duty of the purchaser, at his own expense, to prepare and tender the conveyance to the vendor for execution. If the agreement expressly require the purchaser to prepare and bear the expense of the conveyance, it was always clear that the vendor need not tender a conveyance. But when the conveyance is to be prepared at the expense of the vendor, and there is nothing in the agreement (x) Doe d. Clarke v. Stillwell, 8 A. & E. 645. (y) Standley v. Hemmington, 6 Taunt. 561. (z) Doe d. Clarke v. Stillwell, 8 A. & E. 645. PART III. CH. II. S. 2. Deed tendered should be to show who is to prepare it, it has been decided that the duty of preparing, as well as paying for the instruments, falls on the vendor (a). Very often the direction in the award is to assign upon drawn accord. request. When such is the case, the instrument of which ing to award. execution is requested should precisely agree with the terms of the award, or refusal to execute it would probably be no breach. Demanding execution by agent. Award to execute release on payment. Death of party before payment. An award directed the defendant to assign, according to law, a certain interest to one Duncan, upon request. The assignment tendered to the defendant for execution was an assignment to Duncan, his executors, administrators, and assigns; it was objected that the assignment tendered was too large in its terms, and Lord Ellenborough was inclined to think a personal assignment to Duncan himself might be meant; the case, however, was ultimately compromised (b). If an arbitrator direct a party to execute a deed, it is no excuse for non-performance that the deed was tendered for execution by a person not authorized by power of attorney to make the demand. It is sufficient if the person presenting the instrument were authorized so to do, and an attachment will issue on refusal. Demanding payment of money awarded is considered by the court to stand on a very different footing from demanding execution of a deed (c). If one party be ordered to pay a sum of money, and the other, on the receipt thereof, to execute a release, the latter by refusing the sum cannot free himself from his liability to perform the award, but must execute the release on the money being tendered to him (d). If the award direct payment to be made to a party or his assigns within a specified period, and that on the payment each party should give the other a release, and the party who is to receive the money die before the time has expired, payment must be made to his personal representatives, though (a) Sugd. Vend. and Purch., vol. 1, p. 262, 11th ed.; 14th ed., p. 241. See the cases there cited. (b) Russell v. Headington, 1 Stark. 13. (c) Kenyon v. Grayson, 2 Smith, 61. (d) Squire v. Grevett, 2 Ld. Raym. 961; Linnen v. Williamson, Rolle Ab. Arb. K. 16, p. 254; Lumley v. Hutton, Cro. Jac. 447; Simon v. Gavil, 1 Salk. 74. not named in the award, and the representative is bound to give a release of all demands the deceased has against the other (e). PART III. CH. II. S. 2. release to time of Where an arbitrator exceeds his authority in awarding a Award of release of all claims until the time of the award, instead of limiting it to the date of the submission, if the party execute award. a release to the time of the submission, this is a good performance of the award (f). If the defendant, being ordered to execute a release to the Delivering plaintiff, deliver a release properly executed to a stranger, to release to stranger for the use of the plaintiff, which the latter refuses to accept, plaintiff's use. such tender and refusal may be pleaded as a good performance of the award, if no particular place be mentioned for the delivery (g). execute If the arbitrator direct a party to execute a bond or cove- Award to nant indemnifying another against the costs of an action, and indemnity. the party execute the bond or covenant, the remedy on the arbitration bond is gone; and in case of a failure to save the party harmless, proceedings must be taken on the indemnity bond or covenant (h). In debt on bond for non-performance of an award, "that a suit in Chancery shall cease, and that the plaintiff shall stand acquitted of it," it was a sufficient plea that the defendant did not prosecute the suit, and that the plaintiff "staret inde quietus," for the award orders no act to be done by the party, but says that by virtue of the award he shall stand acquitted. The mere filing a fresh bill in Chancery for the same matter was no breach of the award, for until a subpoena issued on the bill the party was not damnified. But if one, being bound to save another harmless, obtain a process against him, this is a clear breach of the award (i). Award that plaintiff shall stand ac quitted of a suit. On an award that one "shall acquit the other of such a Award to debt or suit," it is not sufficient to save the latter harmless, acquit of a but the party directed to acquit ought to procure an actual (e) Dawney v. Vesey, 2 Vent. 249. (f) Stevens v. Matthews, 1 Ld. Raym. 116; Marks v. Marriott, 1 Ld. Raym. 114. (g) Alford v. Lea, 2 Leon. 110, S. C. Cro. Eliz. 54; Freeman v. Drew, 2 Leon. 181. (h) Phillips v. Knightly, 1 Barnard, 463. (i) Freeman v. Sheen, Cro. Jac. 339, S. C. 2 Bulst. 93; 2 Rolle, Rep. 7. PART III. CH. II. S. 2. discharge (). So, if one has a rent-charge out of the lands of another, and as touching this they submit to an award, and the arbitrator award for the latter "quod staret quietus" of the rent, he who has the rent ought to release the same to the other, for to be quit of the rent supposes the demand not in being (7). (k) Freeman v. Sheen, Cro. Jac. 339, S. C. Bulst. 93. (1) Freeman v. Sheen, 2 Bulst. 93, per Doddridge, J.; Bac. Ab. Arb. F. |