FORM I. 42. That the arbitrator shall be at liberty to order and determine Power to order what he shall think fit to be done by either of the parties respecting the matters referred, or any of them. what shall be done. Power to order drains to be made. Power to order removal of obstructions. Power to cause plans and maps of lands to be made. Costs of such maps and plans. Principle on which to calculate value of the land. 43. That the said arbitrator shall in and by his said award or awards order and direct what shall be done to remove the annoyances complained of, with reference to the drainage, by whomsoever they were created, and shall direct what drains and other works shall be made, and at whose expense and by whom the said drains and works and any other drains already made shall be used and maintained, so as to provide for the drainage, not only of the houses and premises of the parties in the said actions, but also of the houses and premises on the properties of the said C. D., E. F., and G. H., parties to this submission. 44. That the said arbitrator shall have power to direct what shall be done respecting the removal of any of the obstructions charged in the statement of claim in the said action, and to direct the prostration of the whole or any part of the embankment in the indictment mentioned, as ho shall think fit (0). 45. [In submissions respecting lands the following clause may be useful.] -That it shall be lawful for the said arbitrators, or their umpire, to admeasure, or cause the said lands to be admeasured, and to make, or cause to be made, a plan or map, or plans or maps, of the said messuage, farm lands, and hereditaments, and to do and execute all such further and other acts, matters, and things, with respect to the same, as they or he shall think necessary and proper for the purposes of this reference. 46. [This may follow the preceding clause]—and that the costs, charges, and expenses of preparing and executing these presents, and of making such admeasurements, plans, and maps as aforesaid [insert, when necessary, "and of making such valuation, appraisement, and division as aforesaid"], and of all such other necessary acts, matters, or things, which shall be done and executed as aforesaid, "shall be borne and paid by and between the said A. B. and C. D. in equal shares and proportions" [or "shall be in the discretion of the said arbitrators or umpire"]. 47. That for the purpose of making the valuation of the portion of White Acre Farm, mentioned in the schedule, the arbitrator shall previously fix and determine, and specify in his award, the best and most improved yearly rent, for which the lands mentioned in the schedule might reasonably be expected to have been let at the date of this agreement, and shall calculate the value of the said lands at [ years' purchase of such improved rent. (0) See P. II. ch. 8, s. 2, p. 430, as to arbitrator's duty in executing the power. See also award of prostra ] tion of the embankment, post, Form LXV. FORM I. 48. That if either party shall by affected delay, or otherwise, wilfully prevent the arbitrator from proceeding in the reference, or from making Party his award, he shall pay such costs to the other as "the above-men- preventing tioned court" [or "the arbitrator"] shall think reasonable (p). arbitrator to pay costs. 49. And because the parties hereto on both sides are willing to make Making the admissions hereinafter mentioned, so as to save the expense admissions. of proving the several matters so admitted, therefore "it is agreed" [or, if the submission be by judge's order, say instead, “by the like consent I do further order;" if by order of Nisi Prius, say, "it is further ordered"] that the following admissions be made, that is to say [here specify the admissions]. court to refer back. 50. [Instead of clause 14, Form I.]-that in the event of any applica- Power to tion to the said court on the subject of this order, the reference, or the award, the court may, if it think fit, refer back to the said arbitrator To same or [sometimes it may be as well to insert, "or to any other person whom different the court shall appoint"] the whole or any part of the matter of this order upon such terms as the said court shall think proper (9). arbitrator. new arbi 51. [Where U. V. has been nominated as arbitrator by A. B., and X. Y. Provisions for appointing by C. D., it may be convenient to add this clause]—that in case the said U. V. shall die, or refuse, or become incapable to act as arbitrator, trators. before the whole of the premises hereby referred shall be determined by the said arbitrators or their umpire, then the said A. B., his heirs, executors, or administrators, shall forthwith thereafter nominate and appoint some other fit and indifferent person to be arbitrator in the stead and place of the said U. V.; and so in like manner upon the decease, or neglect, or refusal to act, of any arbitrator succeeding to the place of the said U. V. [A similar clause should be inserted as to the arbitrator appointed by C. D. Then let it conclude] that every arbitrator so to be appointed as a substitute for the said U. V. or X. Y., or any succeeding arbitrator, shall have the same powers and authorities as the arbitrator for whom the substitution is made would have had, had he continued to act (r). damages for refusing to appoint new arbitrator. 52. [This may follow the preceding clause]—that if the said A. B. or Liquidated C. D., 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 one-and-twenty 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 (p) See P. I. ch. 3, s. 8, d. 2, p. 107, as to moving for costs under this clause. (2) See P. II. ch. 10, p. 479, as to power of court to refer back, and also as to power and duty of arbitrator on (r) See as to substituting new FORM I. Penalty for breach of submission. Parties to pay arbitrator's charges. parties shall pay to the former party or parties the sum of £ [ 53. And for the due execution and observance of the agreement herein before contained on the part of the said A. B. [and also for any other party for whom A. B. is liable], the said A. B. doth hereby bind himself, his heirs, executors, and administrators, in the sum of £ [ ]. [Add a similar agreement by C. D.]. 54. And the said parties [or "the said solicitor of the said parties"] jointly and severally agree to and with the said arbitrator, in consideration of his taking upon himself the burthen of the reference, to pay to the said arbitrator his reasonable charges for the arbitration and award. II. Agreement We agree to refer all matters in difference between us to the award of X. Y. (t). A. B. Agreement of reference by executor as to testator's estate. Reference not to be an ]. A.D. [ ], between A. B. of [ ], and C. D. of [ * whether the said A. B., as such executor, has any and what claim against the said C. D., and whether the said C. D. has any and what claim against the said testator's estate, so as, &c. [continue as in Form I., clauses 4, 5, 6]. And it is further agreed that this submission to arbitration shall not be deemed or taken to be an admission by the said A. B. that he has assets of the said testator, but that the said A. B. shall be at liberty to deny before the said arbitrator "that at the date of this submission he had any assets in his hands lawfully liable to the demands of the said C. D." [or "at any time before the case is closed, that he has at the time of such denial assets in his hands lawfully liable to the demands of the said C. D."]; and if the said (s) See P. I. ch. 3, s. 4, d. 2, p. 62, as to liquidated damages. (t) See p. 798 for terms in Sched. I., Arbitration Act. to assets. Finding assets, to direct executor to pay sum due. Finding no A. B. shall make such denial as aforesaid, that he the said arbitrator, if requested by the said C. D., shall inquire "whether at the date of this submission the said A. B. had" [or "whether at the time of such Arbitrator to inquiry the said A. B. has"] assets of the said testator lawfully liable inquire as to pay the whole or any part of the sums claimed by the said C. D. And if the said arbitrator shall on the balance find any money to be due to the said C. D., he shall, if he shall find that the said A. B. had at the time to which the said inquiry referred assets liable to the demands of the said C. D., direct the said A. B. to pay to the said C. D. the balance, or so much thereof as the assets so found to be liable shall be sufficient to satisfy. And if the said arbitrator shall find that the said A. B. had no such assets, or not enough of such assets to pay the whole amount so found due to the said C. D., he shall be at liberty to award that the said A. B. shall pay to the said C. D. the said amount (or as much thereof as the assets in hand do not avail to satisfy as aforesaid), out of any assets which may have come into the hands of the said A. B. since the time to which the said inquiry respecting the assets refers, or which may hereafter come into them. And that if the said arbitrator shall find any money due from Arbitrator the said C. D., he shall direct the latter to pay the same to the said payment to A. B. [Add such other clauses as may be suitable] (u). assets to direct executor to pay out of assets quando. to direct executor of money due. IV. Agreement of reference by executor as to liability, not as to assets. [Commence as in the previous Form as far as the asterisk]—and that the said arbitrator shall not consider or inquire whether the said A. B. had or has any assets of the said testator, nor shall his award conclude, or be construed to conclude, any questions as to assets, but shall leave the same entirely open. And it is further agreed that if the said arbitrator shall find any balance of money due to the said A. B. as such executor, he shall direct the said C. D. to pay the same to the said To direct A. B.; but if he shall find a balance in favour of the said C. D., he shall add a direction that the said A. B. shall pay the same to the said assets, if any. C. D. out of the assets (if any) which may be in his hands, or which may hereafter come to them; and that it shall not be lawful for the said arbitrator to direct the said A. B. to pay in any other manner. executor to pay out of V. And the said A. B. and the said C. D. do each of them, for himself, his executors, and administrators, covenant, promise, and agree to and with the other of them, his executors and administrators, that if at any time or times during the co-partnership, or at or after determination any (u) See P. I. ch. 2, s. 2, d. 4, p. 29, as to executors parties to reference. Arbitration clause in deed of partnership. Provision for liquidated damages for refusing to appoint an arbitrator. On refusal single arbi trator may act alone. Liquidated damages for revocation. Arbitrator to proceed notwithstanding revocation. thereof, any variance, dispute, doubt or question shall arise, happen, or be moved between the said parties or either of them, their executors or administrators, in, for, about, or touching the consideration of these presents, or the joint concern or co-partnership, or any covenant, agreement, clause, matter or thing herein contained, or in the construction hereof, or in anywise relating hereto; then every such variance, dispute, doubt, or question, shall be referred to, and be resolved and determined by two fit and indifferent persons, to be elected and chosen one by each of the said partners, within twenty days next after such variance, dispute, doubt, or question shall arise, happen, or be moved; with power to the arbitrators to elect an umpire in case of dispute: and that each of the said partners, his executors and administrators, shall abide by, perform, and keep the award and determination of the arbitrators, or of their umpire, without any further dispute or trouble whatsoever. And that, if either the said A. B. or C. D., his executors, or administrators, shall neglect or refuse to appoint an arbitrator pursuant to the above provisions for twenty-one days after the other of them shall have appointed such arbitrator on his part, and shall have served a written notice requiring the party so neglecting or refusing to make such appointment; the party so neglecting or refusing shall pay to such other the sum of £[ ], by way of liquidated damages * for such neglect or refusal (u). [Or this clause may be inserted after the asterisk, instead of the provision for liquidated damages]-then the arbitrator appointed by the party serving such notice shall at the request of such party proceed to hear and determine such matters in difference, as if he were an arbitrator appointed by both parties for that purpose; and that if after the said arbitrator shall have been so requested as aforesaid, either party shall revoke, or attempt to revoke the authority of the said arbitrator, such party shall pay to the other of them £ [ ], as liquidated damages; and the said arbitrator, if requested, shall proceed to hear and determine the said matters, notwithstanding such revocation or attempted revocation (x). VI. Submission by bond. ], in £ [ ], ], of (y) Know all men, by these presents, that I, C. D., of [ am held and firmly bound to A. B., of [ good and lawful money of Great Britain, to be paid to the said A. B., or his certain attorney, executors, administrators, or assigns; for (u) See P. I. ch. 3, s. 4, d. 2, p. 63, as to liquidated damages. (x) See P. II. ch. 3, s. 3, d. 3, p. 161, as to effect of award after revocation in equity. See also P. II. ch. 3, s. 3, d. 6, p. 165, as to substituting new arbitrators by statute. (y) See P. I. ch. 3, s. 2, d. 3, p. 54, as to submissions by bond. |