1841.

KING

v.

in which the costs were to be paid by the parties, and the plea concluded with a special traverse, that the said H. B., and T. R. H., did make their certificate in writing, of and and Another. concerning the said matters in reference to them as aforesaid, in manner and form, &c."

BOWEN

At the trial before Gurney, B., at the Middlesex Sittings, in Easter Term, the plaintiff produced the agreement of reference which corresponded with the statement of it, in the declaration, together with the certificate of the arbitrators, as set out in the plea; but he did not shew, by extrinsic evidence, that the only matter adjudicated on by the arbitrators was the account delivered by the plaintiff, to T. S. C. It was, therefore, contended for the defendants, that the plaintiff ought to be nonsuited, on the ground that the sum found to be due by the arbitrators, was not the sum for which the defendants had agreed to be bound; that by the agreement, the account between the plaintiff, and T. S. C. alone, was referred, whereas the sum found due by the arbitrators was general, and not confined to that account. The learned judge refused to nonsuit, and the plaintiff had a verdict for 128/. 4s., leave being reserved to the defendants to move to enter a nonsuit or verdict for them.

A rule nisi having been obtained for that purpose,

Wordsworth shewed cause, and contended, that primâ facie the certificate applied to the matters referred; but that at all events, as there was no plea of non assumpsit, the defendants were not at liberty to raise the objection.

E. V. Williams in support of the rule, contended, that the plaintiff had not shewn that the defendants were liable to pay the amount claimed. The declaration alleged a liability to pay so much as certain arbitrators should find to be due on reference of a particular cause, but the certificate in support of it was not confined to the cause only, but might have extended to other matters. The

question is raised by the special traverse upon which the plaintiff joined issue.

Lord ABINGER, C. B.-The rule must be absolute for entering a nonsuit. The declaration states that the plaintiff consented to stay proceedings against Cave, upon security being given to him for such sum of money as might be found due upon a particular account between the plaintiff and Cave, which was to be submitted to arbitration, and it then alleges that the defendants agreed to pay the plaintiff such part of the account as should be found due on such arbitration. Then the plea sets out the certificate, which is not confined to the particular account, but appears to be made of all matters in difference. The defendant could only meet the case by shewing that no such certificate exists as was agreed upon between the parties. Upon the production of the certificate, there appears to be a variance, and as the plaintiff has not shewn by extrinsic evidence that the arbitrators only took the particular account into consideration, and that the certificate is confined to that, I think the rule must be absolute.

GURNEY and ROLFE, BS., concurred.

1841.

KING

v.

BOWEN

and Another.

Rule absolute.

DOE v. AMEY.

THIS was an action for mesne profits, which, together The superior

Courts have power to call

with all matters in difference, was referred to arbitration. By the submission, which was dated the 15th of February, upon a party (the submission

to which has been made a rule of Court,) to shew cause why he should not pay the amount awarded; and such rule may be moved for before the time limited for applying to set aside the award has expired, and upon its being made absolute, execution may issue under the 1 & 2 Vict. c. 110, s. 18.

An affidavit of the due enlargement of the time for making the award is not necessary on making such an application.

Where on a party applying at the house of the person ordered to pay the money, he was told that the latter had assigned his effects to his daughter-in-law, and gone abroad, the Court granted the above rule nisi to be served on the daughter-in-law.

1841.

DOE

v.

AMEY.

1840, the arbitrator was to make his award on or before the 30th of April, 1841, with power to enlarge the time by indorsement on the submission. On the 3rd of May, the arbitrator made his award, by which he ordered the defendant to pay to the plaintiff, the sum of 1850l., together with the costs of the reference and award. On the 12th of May, the submission was made a rule of Court, and the costs were afterwards taxed at 867. 14s., and the Master's allocatur given for that amount. A party having gone to the defendant's house to demand the money, found the premises in possession of the defendant's daughter-in-law, who stated that the defendant had left the country and assigned all his effects to her.

Byles had obtained a rule, calling on the defendant to shew cause, why he should not pay to the plaintiff the sum of 1936% 14s., in pursuance of the said award, rule of Court, and allocatur. It was made part of the rule, that service upon the daughter-in-law, upon the premises, should be deemed good service.

Kelly and Ogle shewed cause. The present application is premature, the time allowed for moving to set aside the award not having yet elapsed. [Lord Abinger, C. B.—A party may apply for an attachment for the non-performance of an award before the time for moving to set it aside has elapsed.] The Court has no power either at common law, or under the 1 & 2 Vict. c. 110, s. 18, to make an order calling on a party to pay a sum awarded by an arbitrator. Independently of the statute, their only power is to order the party to perform the award generally, and in the event of his neglect or refusal, to punish him by attachment. The object of the 1 & 2 Vict. c. 110, ss. 18, 19, is to give to orders and rules of Court, the effect of judgments, but it does not confer the Courts any new power, and it is clear, that before the statute, applications like the present, were never made.

upon

[Alderson, B.-The reason why orders for payment of money were not moved for before the statute, was, that disobedience to them could only been forced by attachment, and the same remedy might be resorted to, when orders for performing the award were disobeyed. The power to order payment of money due under an award, is involved in the power to order an award to be performed.] The observations of Lord Denman, C. J., in Jones v. Williams (a) are mere obiter dicta, and not the judgment of the Court. The terms of the submission do not give the Court any power to enforce payment in this mode. Secondly, There is no affidavit that the time for making the award has been duly enlarged by the arbitrator. Such affidavit is necessary in the case of a motion for an attachment to which this proceeding is analogous. Halden v. Glasscock (b), Davis v. Vass (c), Wohlenberg v. Legeman (d).

Byles, contrà, was not called upon by the Court.

Lord ABINGER, C. B.-We think that no sufficient ground has been shewn to prevent us making this rule absolute. As to the first point, there is no foundation for saying, that the application is premature. If the defendant had any reason for alleging that the award was bad, he might have applied to the Court early in Term, for a rule to set it aside, and the facts and arguments might have been brought before us at the same time as this motion, but he has declined to do so. The next ground upon which the defendant relies, is, that the act abolishing imprisonment for debt on mesne process, does not authorize us to make an order calling on a party to pay money awarded by an arbitrator. That statute was made principally for the benefit of persons subject to arrest, and in lieu of imprisonment of their persons, it substituted the more efficacious and ready mode of proceeding against the property of debtors. With that view,

1841.

DOE

v.

AMEY.

1841.

ᎠᎬ

v.

AMEY.

it has made all orders of Court and directions to parties to pay money, equivalent to judgments, and like them, enforcible by execution. But then it is said, that we cannot make this order, and that our power only extends to issuing an attachment against the party. It appears to me, that an order for an attachment against a party for not paying money presupposes a power in the Court to direct it to be paid, for although it has hitherto been the practice to apply for the attachment in the first instance, it is quite clear, that the Court could have no power to grant the attachment, unless they have also the power to make an order for the payment of the money. The order which we are now called upon to make, is within our jurisdiction, and in conformity with the spirit and policy of the act for the abolition of imprisonment for debt. The suggestion of Lord Denman in Jones v. Williams seems very correct. The rule will be absolute, but the defendant is at liberty to apply to set aside the award, and if he succeed, the present execution will be nugatory. With respect to the necessity of an affidavit, as to the due enlargement of the time for making the award, it is true such affidavit is required on an application for an attachment, but that is on the ground that an attachment is against the person.

ALDERSON, B.-With respect to the last objection it is sufficient to say, that the submission to arbitration, with the enlargement endorsed, has been made a rule of Court. Then, with respect to the general question, the rule must be absolute, that the party pay the money mentioned in the award. The rule laid down by Lord Denman, in Jones v. Williams, is a sound one; the practice in this respect depends on the general jurisdiction of the Court, and the form in which the Court shall order obedience must depend upon its discretion. Formerly, the practice was to order the party to perform the award; in that case, the sum of money to be paid was not mentioned in the rule, and consequently, according to the decision of the Court of Queen's