To grant so to be chosen as aforesaid, shall nominate and appoint, whose decision and award shall be final and conclusive on the said parties; AND the said A. B. and C. D. further agree, that they will severally stand to, abide, perform, and keep, the award and determination of the said arbitrators, (or their umpire in case of their disagreement,) as to the matters that may be in dispute, touching the several matters and things referred to them as aforesaid, so as the same be made in writing under the hands and seals of the said arbitrators, or their umpire, within three calendar months next after such matters in dispute being referred; AND for the true performance of this agreement, the said A. B. binds himself to the said C. D., in the penal sum of £ (or say, in the sum of £, to be recovered as liquidated or ascertained damages).(o) In witness, &c. (11.) Agreement with Conditions for a building Lease. CONDITIONS for granting a lease for twenty-one years to C. D., of, &c., of a piece or parcel of land, situate, &c., containing, &c., and delineated in the ground plot or plan (annexed to or included in the margin) of these presents, the property of A. B., of, &c., Esquire. The said A. B. to grant and execute a lease of (0) A clause in agreements of this description is usually inserted, stipulating for the payment of a sum of money, either by way of penalty, or for liquidated or ascertained damages, in case of violating any of the articles of the contract by either party. When it is expressed as liquidated damages, a reference to a jury will be prevented, and is the same as if the damages were fixed; and this has been so considered by the courts.-See Astley v. Welden, 2 B. & P. 346. Lowe v. Peers, 4 Burr. 2225. Barton v. Glover, Holt, 43. Fletcher v. Dytche, 2 T. R. 32. Reilly v. Jones, 1 Bing. 302. 8 Moor. 244. But it appears the agreement must specify the particular stipulation or stipulations to which the liquidated damages are to be confined.-Kemble v. Farren, 6 Bing. 141. 3 M. & P. 425. If inserted by way of penalty or "penal sum," the court is precluded from considering it as, or in the nature of, liquidated damages, but as a mere penalty, leaving the damages to be ascertained.-See Astley v. Weldon, ubi supra; Smith v. Dickenson, 3 B. & P. 630. Davis v. Penton, 6 B. & C. 216. 9 D. & R. 369. Kemble v. Farren, ubi supra. It seems that a court of equity will compel a specific performance where the damages fixed turn out to be inadequate.--Hobson v. Trevor, 2 P. Wms. on erection of the said piece of the land as soon as the dwelling- lease house and premises, hereinafter stipulated to be buildings. erected by the said C. D., shall be covered in; and that the lease shall be made to hold from the day of, &c., for the term of, &c., next ensuing, at an annual rent of, &c., (being at the rate of, &c., per foot, of the said piece of land,) subject to all rates and taxes whatsoever. out of the years' rent. to be lease. con The said C. D. to deduct out of the first three Deduction years' rent one third part of the said annual rent first three for his own use and benefit, The said lease to contain all usual covenants, and Covenants particularly covenants on the part of the said C. D., tained in that no bricks, or tiles, or other wares, shall be made upon the said premises; and that no inn, tavern, or public-house, trade, or manufactory, shall be carried on there, but that the same shall be used only as a private dwelling-house; and that no gravel or loam shall be dug or sold, or any dilapidations or waste committed or suffered on any part of the said premises. The said C. D. to insure, and keep insured, the Lessee to inpremises from fire, in the sum of £ in the sure. Insurance Office, in London. The said C. D. to proceed forthwith to erect, and Lessee to to cover in, finish, and complete, on or before the forthwith to day of, &c., at his own costs and charges, in a build. good and workmanlike manner, a substantial brickbuilt messuage or dwelling-house, with suitable outhouses, buildings, and appurtenances, agreeable to a plan and elevation of the same, to be first approved by the said A. B. The said C. D. to erect such dwelling-house at Mode of not less than twenty feet from the public road ad- erection. joining the premises leading from E. to F.; and that no part of the back buildings at a distance of more than fifteen feet from the said dwelling-house, shall be erected above the height of - feet from the surface of the ground. be expended The said C. D. to lay out and expend in the mounted building of the dwelling-house, exclusive of all in building. Memorandum of agreement. Parties. Recital. other erections, the sum of £ -; and at his own expense erect a paling of iron of five feet in height from the surface of the ground, on the east and south sides of the said piece of land, so agreed to be taken by him for building as aforesaid. It is hereby agreed, BETWEEN the said A. B., for himself, his heirs, executors, and administrators, and the said C. D., for himself, his heirs, executors, and administrators, that he, the said A. B., shall and will execute an indenture of lease to the said C. D., of the said piece of land, and buildings when erected, at the time aforesaid, at the rent and upon the terms and conditions before mentioned; and the said C. D. on his part, agrees to build the said dwelling-house upon the said piece or parcel of land, on or before the time before mentioned, and pay the rent to the said A. B., his heirs or assigns, (deducting for the said first three years one third part thereof as aforesaid,) and will execute a counterpart of the said lease, both of which shall be prepared at his expense, and will, in all respects, conform to the foregoing stipulations and conditions on his part to be performed. (12.) Building Agreement, and to grant a Lease when WHEREAS the said A. B. being entitled (among others) as lessee, under and by virtue of a lease dated, &c., and made between, &c., for a term of ninety-nine years, to the piece or parcel of land hereinafter agreed to be let to the said C. D., hath made proposals to the said C. D. for letting the same to him on a building lease, for a term of twentyone years, on payment down of the sum of £ tion. and at the rent hereinafter mentioned; and the said C. D. hath agreed to accept thereof, and to pay such sum, and also to build two houses thereupon, within two years from the date hereof, upon having a lease granted of the same at the end of such period, upon completion of the houses, at the rent and upon the conditions hereinafter mentioned.(p) Now these presents witness, that, for Witness. and in consideration of the sum of, &c., of lawful Consideramoney of Great Britain, to the said A. B., in hand, well and truly paid by the said C. D., at or immediately before the sealing and delivery of these presents, the receipt whereof he, the said A. B., doth hereby acknowledge, and of and from the same and every part thereof, doth hereby acquit, release, and for ever discharge, the said C. D., his executors, administrators, and assigns, by these presents; he, the said A. B., doth hereby agree to let unto the Agreement said C. D., all that, &c., (describe the land particularly,) be the same more or less, as the same is or are more particularly described or delineated in the ground plot or plan drawn in the margin of these presents, and all ways, paths, passages, lights, easements, waters, water-courses, profits, commodities, and appurtenances whatsoever, to the said premises belonging, or in anywise appertaining; TO HOLD Term. the said piece or parcel of ground, with the appurtenances, unto the said C. D., his executors, administrators, and assigns, from, &c., now last past, for, and during, and unto, the full end and term of years, at and under the yearly rent of, &c., clear of the land tax, sewers' rate, and all other rates, taxes, charges, and assessments, whatsoever; AND the said C. D., for himself, his executors, Agreement administrators, and assigns, doth hereby promise premises on and agree, to and with the said A. B., his executors, (p) If the land has been put up to auction, say, "Whereas the piece or parcel of ground, hereinafter agreed to be leased, was (subject to the rents, and covenants, and conditions, therein and hereinafter contained) put up to sale by public auction, to the highest bidder, at &c., and the said C. D. was then and there declared the highest bidder for the same, subject as aforesaid." to let. Property. General words. to take the lease. And pay rent without Lessee build within three years. administrators, and assigns, that he, the said C. D., his executors, administrators, and assigns, shall and will take the said piece or parcel of ground for the term and at the yearly rent aforesaid; and shall and deduction. will well and truly pay, or cause to be paid, unto the said A. B., his executors, administrators, and assigns, the yearly rent or sum of, &c., as and when the same shall become due, and payable as aforesaid, clear of the land tax, and all other rates, taxes, to charges, and assessments, whatsoever; AND also, that the said C. D., his executors, administrators, or assigns, shall and will, within the time or space of three years, to be computed from the day of the date of these presents, erect, build, set up, and tile or slate, and cover, and in all respects completely finish, (fit for habitation,) in a good and workmanlike manner, upon the said piece or parcel of ground, two substantial brick messuages or tenements, with such party walls, conveniences, and necessaries to the same, as shall be requisite and fitting, according to the manner of building new houses now used in that neighbourhood, the same to be built with good materials, under the inspection, and to the satisfaction, of the said A. B., his executors, administrators, and assigns, or his surveyor; in maye erecting and building of which messuages or tenebuilding. ments, shall be laid out the full sum of £ the least; AND the said A. B., for himself, his executors, administrators, and assigns, doth hereby lease when promise and agree, to and with the said C. D., his the buildings are erected. executors, administrators, and assigns, in manner following, (that is to say,) that when and so soon as the said two or more messuages or tenements and premises shall be erected and built, as aforesaid, he, the said A. B., his executors, administrators, and assigns, shall and will, well and effectually, by indenture, demise and lease the said piece or parcel of ground, and messuages, or tenements and premises, so to be erected and built as aforesaid, unto the said C. D., his executors, administrators, and assigns; TO HOLD to the said C. D., his executors, Sum of to be Lessor to grant and execute a For the term then to come at |