Arbitrium Redivivum OR THE LAW OF Arbitration COLLECTED From the Law-Books both Ancient and Modern and deduced to these Times Wherein the whole Learning of Awards or Arbitrements is methodically treated WITH Several Forms of Submissions by way of Covenants and Bond As also several Forms of Arbitrements or Awards By the Author of Regula Placitandi LONDON Printed by the Assigns of Rich. and Edw. Atkins Esquires For Isaac Cleeve at the Star in Chancery-Lane near Serjeants-Inn 1694. TO THE READER ARbitrement is much esteemed and greatly favoured in our Common Law the end thereof being privately to compose Differences between Parties by the Judgment of honest Men and to prevent the great Trouble and frequent Expence of Law-Suits This therefore being rightly understood and practised may undoubtedly save our Purses and procure much Peace and Tranquility amongst us But on the other hand through Ignorance and Defect of good Arbitrators we may run our selves into far greater dangers than we thereby thought to avoid and so make that our Ruine which is intended for our Happiness For though it be said That the Power of Arbitrators is such That they may judge according to their Will and Pleasure and therefore greater than that of any publick Judge yet they must keep themselves within their Jurisdiction and their Awards must be measured by the Rules of the Law 'T is true they are not so tied up to Formalities as our Lawyers notwithstanding there are many things must be observed to make their Arbitrements good and effectual All which are methodically laid down in this small Treatise and though much may be said concerning Arbitrements in the Law-Books yet it is mostly mixt with other Matters or else lies so privately under the Shadow of some other Title that it hath not been so much as heard of by those who are most concerned to make use of it and therefore answers not the End for which it was intended A general Good should be generally known and enjoyed To this End therefore this Treatise is compiled that the People in general may have Benefit thereby which is the chief End of the Publisher who is a hearty Well-wisher to Peace and the Publick Interest Vale. THE CONTENTS CHAP. I. SHewing what Matters in Controversie may be submitted to Arbitrement and what not pag. 3 CHAP. II. Concerning the Submission and the Circumstances to be regarded therein 8 CHAP. III. Concerning the Parties to the Submission and who may submit c. 13 CHAP. IV. Concerning the Arbitrators and Umpire and their Power with several Presidents of Submission 17 CHAP. V. The Duty of the Parties after submission and concerning publishing the Award Notice and Delivery 39 CHAP. VI. What things are chiefly to be regarded in Arbitrements or Awards and first that it must be according to the Submission 40 CHAP. VII That an Award ought to be certain 51 CHAP. VIII That an Award must be equal and appoint either Party something beneficial 52 CHAP. IX That the Performance of an Award must be possible lawful and within the Parties Power without the Aid of others 57 CHAP. X. That there must be a means by Law to attain unto the thing awarded 61 CHAP. XI That an Award must be final 64 CHAP. XII Concerning an Umpire 66 CHAP. XIII Several Notes concerning Arbitrement in general 68 CHAP. XIV How Arbitrement or Award shall be expounded and intended 73 CHAP. XV. The Effect of every Arbitrement or Award 74 CHAP. XVI Concerning the Performance of an Award With several Presidents of Awards Umpirage and Release 77 THE LAW OF Arbitrement ARbitrement in Latin Arbitrium is an Award Arbitrement what Determination or Judgment made or given between persons in Controversie 8 E. 4.1 10. a 9 E. 4.43 b. 16 E. 4.9 a. 19 E. 4.1 a. 21 E. 4.39 a. 19 H. 6.36 37. a. b. Dyer 236. 10 Eliz. pl. 39. by the Arbitrators or Umpire being such person or persons as are thereunto elected by the Parties controverting for the ending and pacifying the said Controversie according to the Submission or Compromise of the said Parties and agreeable to Reason and good Conscience It is said to be called an Arbitrement Why so called either because the Judges elected therein may determine the Controversie not according to the Law but according to their Opinion and Judgment as honest Men Or else because the Parties to the Controversie have submitthemselves to the Judgment of the Arbitrators not by Compulsion or Coertion of the Law but of their own accord It is also called an Award of the French Word Agarder which signifies to decide or judge and sometime in the Saxon or Old English it was called a Love-Day because of the Quiet and Tranquility that should follow the ending of the Controversie There are five things incident to every Award or Arbitrement Incidents to Arbitrement 4 Eliz. Dyer 217. a. 1. Matter of Controversie 2. Submission to the Arbitrators 3. The Parties to the Submission 4. The Arbitrators or Umpire 5. The manner of the Award or yielding up their Judgment CHAP. I. First therefore we must see what Matters in Controversie may be subto Arbitrement and what not 1. Things incertain 22 H. 6.39 14 H. 4.24 4 H. 6.17 THings and Actions meerly personal and incertain are arbitrable as Trespass c. though the Submission be not by Deed. Arbitrement ought to be of a Duty incertain 6 H. 4.6 a. 2 H 5. Fitz. 23. 4. H. 6.17 b. 10 H. 7.4 a. 2. Things certain 4 H. 6.17 2 H. 5.2 12 R. 2. Dyer 33 H. 8. f. 51. pl. 14. But things certain are not arbitrable but when the Submission is by Specialty if they be not joined with others incertain as Debt with Trespass Controversie of Debt alone cannot be put into Arbitrement but Contract of Debt with another thing may well be put in Arbitrement 45 E. 3.16 a. 2 H. 5. Fitz. Arbit 23. 8 H. 5.3 b. 4 H. 6.17 b. 10 H. 7.4 a. Debt upon Contract without Specialty by the Resolution of some Books may be put in Arbitrement 45 E. 3.16 a. 6 H. 4.6 a. 4 H. 6.18 a. 3. Chattels real or mixt 9 H. 6.60 14 H. 4.24 3 H. 4.6 Chattels real or mixt as Charters of Lands are not arbitrable by themselves if the Submission be not by Specialty In Real Actions Arbitrement is no Plea In Mixt Actions Arbitrement is no Plea if the Submission be not by Deed 19 H. 6.37 In Personal Actions on personal Wrongs Arbitrement is a Plea although the Submission be not by Deed 14 H. 4.24 In a Controversie concerning the Property of Real Chattels aâ—â— Arbitrement transfers the Property of them according to the Award 21 H. 7.29 b. In Chattels personal Arbitrement transfers the Property In personal Duty grounded uâ—on a Specialty Plea of Arbitrement is not available 3 H. 4.1 b. 8 H. 5.3 And the Lord Cook in his Reports Li. 4. f. 43. b. 44. a. say That an Arbitrement is no
such a Sum awarded as Counsel shall advise 19 E. 4.1 Note It was held a good Award that an Action should be commenced betwixt the Parties by advice of W. and P. 8 Ed. 4.1.10 The Court will not suppose any thing to be awarded in an Award which is not submitted unto except the contrary be made to appear Pract. Reg. 28. Thus you see most of the former Cases confirmed by this Register And farther That a thing may be awarded to be done to a Stranger See before CHAP. XIV How an Arbitrement shall be expounded and intended EVery Arbitrement is a Judgment 8 E. 4.1 b. 8 E. 4.10 a. Arbitrement is a Judgment 21 E. 4.39 a. And there is Diversity where a Man is judged by Authority of the Law Diversity between Arbitrement and Judgment by Law and by Election of the Party himself for a Judge of Record does not give Judgment against the Parties if so be they are not called before him by Process of Law 8 E. 4.2 a. but otherwise it is of an Arbitrator who is Judge between the Parties And whereas every Judgment of Record shall be executed literally according to the Warrant issuing out of the Record How an Arbitrement shall be expounded and intended upon and for the executing the said Judgment Yet nevertheless 17 E. 4.3 21 E. 4.39 a. b. 19 H. 6.36 b. Every Arbitrement ought to be expounded and intended according to the intent of the Arbitrators and not literally 10 Co. f. 57. b. But if the intent of the Arbitrators will not stand with the Law To be performed in such Sense as agrees with the Law 21 E. 4.39 b. then the Parties shall perform it according to those Words in such Sense as agrees with the Law And note It hath been held That an Averment shall not be allowed to shew the intent of the Arbitrators if it be not expressed in the Award either directly or by Circumstance Dyer 242. CHAP. XV. The Effect of an Arbitrement or Award THE Effect of an Arbitrement or Award is as follows By Arbitrement the Controversie passes into a Matter judged of 49 E. 3.3 a. 20 H. 6.41 a. Arbitrement passeth into Judgment 6 H. 7.11 b. 9 E. 4.51 a. And therefore How to plead it 6 H. 7.11 b. 9 E. 4.51 a. 20 H. 6.12 b. 40. a. b. 28 H. 6.12 5 E. 4.7 a. where the Party brings his Action for the Wrong done him 't is a good Plea That he submitted himself to the Arbitrement of such and such who awarded that he should pay so much c. but the day of payment of it is not yet come But if the Day of Payment be passed Tender of Mony pleaded 16 E. 4.8 b. he ought to shew that he tendred the Mony at the Day and that he is yet ready to pay it c. 8 H. 6.25 b. See before Chap. 10. For Arbitrement by which the Arbitrators award Arbitrement for Mony gives Action 6 H. 7.11 9 E. 4.51 that one of the Parties shall pay Mony does give an Action 5 E. 4.7 a. 16 E. 4.9 a. 17 E. 4.2 b. 17 E. 4.8 a. Fitz. Nat. Brev. G. 121. And it is now held by the Court When Debt on Award shall be within Statute of Limitation That Debt upon an Award by Word of Mouth is within the Statute of Limitation 21 Jac. 16. That it must be sued for within six years after the Cause of Action But Debt upon an Award under Hand and Seal is as if it were a Specialty 2 Keb. p. 462. and so out of the Statute This is the same if the Submission be without Deed. And if the Parties do not perform the Arbitrement Party restored to his first Action 49 E. 3.3 a. Or he may have Debt upon the Award 49 E. 3.3 a. 33 H. 6.2 b. If the payment be made first wrong is determined Double Action the Party is restored to his first Action But yet it is at his Election to have a Writ of Debt upon the Award or the first Action But if the Payment be made the first Wrong is altogether determined by the Award 4 H. 6.1 a. 25. b. 21 H. 7.28 b. And if the Arbitrators award that one of the Parties shall pay so much Mony and either of them is bound to the other to stand to the Award 21 E. 4.41 b. 33 H. 6.2 b. the Party may have an Action upon the Award and also the Deed if the Award be not performed Quaere If the Submission be by Word Award of a Collateral things gives no Action and the Award is That one of the Parties shall do a Collateral Act other than payment of Mony it gives no Action and if it be not indeed executed and satisfied 20 H. 6.19 a. 5 E. 4.7 a. 11. b. the Arbitrement hath no Effect and such Arbitrement does not determine the first Wrong 19 H. 6.38 a. Yet if the Submission be by Bond Submission by Bond and Bond forfeited if a Collateral Act be awarded to be done if it be not performed the Bond shall be forfeit 9 E. 4.44 a. And 't is the usual course to sue the Bond on Non-performance of the Award Usual course of Practice CHAP. XVI Concerning the Performance of an Award With several Presidents of Awards Umpirage and Release LAstly we are to consider the Performance of the Award How the Parties ought to perform the Award They ought to use their utmost Endeavour whereof it is said That The Parties ought to do all that in them is to perform it 21 E. 4.39 b. See before Chap. 9. If by the Arbitrement it is awarded Things to be done two ways how to be performed That an Act shall be done which a Man may perform in two manners the one way by himself and by the other way he must have the Aid of another person the Party ought to perform it by such means as he himself can do 21 E. 4.40 b. without the Aid of another Arbitrement ought not to be performed in part Must be totally performed and in part not 6 H. 7.10 b. But though an Arbitrement cannot be made by the Arbitrators May be performed at several times 8 E. 4.10 b. part at one time and part at another time yet it may be performed part at one time and part at another time But this must be before the Day limited The Parties shall have reasonable time allowed them for the performance of an Award if no time be limited How to be performed when no day is limited 21 E. 4.41 a. b. c. One Act to be done depends upon another to be first done 5 E. 4.7 a. 20 E. 4.8 b. If the Act which the Arbitrators award that one of the Parties shall perform cannot be performed before another Act first done by the other Party if the Party does not do the first Act the other is excused Arbitrement
B. and C. D. Arbitrators indifferently Elected and Chosen between the said Parties to Arbitrate Award Order c. as the Words in the Condition of the Bond are expressed of and for the Premisses as by the said several Obligations with the Conditions for the performance thereof relation being thereunto had more at large may appear Now know ye That we the said Arbitrators having taken upon us the Business and Charge of the same Award and willing to set the said Parties at Peace and Concord by making a final End and Determination concerning the Premisses in Controversie and having taken good advice and deliberation and heard and examined both their Title Allegations and Proofs offered concerning the said Premisses in Controversie do with the assent and consent of both the said Parties make publish declare and give up this our Award concerning the Premisses in manner and form following viz. First We Award Order Judge and Determine That * Setting forth the Judgment or Award c. Also we award c. Finally we award judge and determine c. In Witness whereof we the said Arbitrators and also both the said Parties to the Submission have interchangeably put our Hands and Seals _____ day of _____ Annoque Domini 1692. Another most usual and general Form of an Award upon a submission by Bond. TO all People to whom this present Writing of Award indented shall come A. B. of c. and C. D. of c. Arbitrators indifferently chosen elected and named by and between E. F. of c. and G. H. of c. to Arbitrate * Reciting the words in the Condition of the Bond. Award Order Judge and Determine of for upon and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Judgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time before our said Election had made moved brought commenced sued prosecuted done suffered comitted or depending by or between the said Parties as by the several mutual Bonds or Writings Obligatory of the said Parties with the Conditions thereof relation being thereunto had more fully and at large may appear Now know ye That we the said Arbitrators in pursuance of our said Election and the power given us thereby for the ending of all the Matters to us therein submitted and for the future Peace and quiet of the said Parties concerning the Premisses do Arbitrate Award Order Judge and Determine thereupon as followeth First c. * Setting forth the Judgment In Witness whereof we the said Arbitrators have to these our present Indentures of Award interchangeably set our Hands and Seals the _____ day of _____ Annoque Domini 1692. The Form of an Umpirage briefly thus TO all People to whom this present Writing shall come I A. B. of C. c. Umpire indifferently chosen by E. F. of c. and G. H. of c. having deliberately heard and understood the Griefs and Allegations and Proofs of both the said Parties and willingly as much as in me lieth to set the said Parties at unity and good accord do by these Presents arbitrate award order deem decree and judge That the said E. F. his Executors or Administators shall well and truly pay or cause to be paid unto the said G. H. his Executors Administrators or Assigns at or in the dwelling House c. the full Sum of Ten Pounds of lawful Mony of England on the first day of Septemper next ensuing the Date hereof and that upon payment thereof either of the said E. F. and G. H. shall seal subscribe and as his several Act and Deed deliver unto the other of them a general Release in writing of all Matters Actions Suits Causes of Actions Bonds Bills Covenants Controversies and Demands whatsoever which either of them may might or in any wise ought to have of and against the other of them by reason aforesaid or means of any Matter Cause or Thing whatsoever from the beginning of the World until the 20th Day of * The Day of the Date of the Bonds of Submission July now last past In Witness whereof I have hereunto set my Hand and Seal the _____ Day of _____ in the _____ year of the Reign of c. Annoque Domini 1692. The Form of the Release KNOW all Men by these Presents Naming the Parties their Places and Trades or Qualities That I E. F. of c. have remised released and for ever quit claimed and by these Presents do for me my Heirs Executors and Administrators remise release and for ever quit claim unto G. H. of c. his Heirs Executors and Administrators all and all manner of Actions Cause and Causes of Actions Suits Bills Bonds Writings Obligatory Debts Dues Duties Accounts Sum and Sums of Mony Judgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever which against the said G. H. I ever had now have and which I my Heirs Executors or Administrators shall or may have Claim Challenge or Demand for or by reason or means of any Matter Cause or Thing whatsoever from the beginning of the World until the 20th Day of July now last past In Witness whereof I have hereunto set my Hand and Seal this _____ day of _____ in the _____ year of the Reign of c. Annoque Domini 1692. Sealed and delivered in the presence of Note You may date the Release upon the day to which it ought to release and then say From the beginning of the World unto the day of the date of these Presents FINIS