PART III. When title to land passes by allotment. Award a parliamentary declaration. Effect of the award on infants. In some instances, however, the legislature by the use of appropriate words gives the seisin and legal estate upon the allotment only, and before the execution of the award (e). Under a statute, which directed that the herbage of certain closes should be and remain to the use and benefit of such persons as the commissioners should appoint, an award assigning the herbage to the surveyors of the highways for a certain township, and their successors for the time being, was held good, as amounting to a parliamentary declaration of the parties who were to hold it; although the award would have been bad as a common law conveyance, since surveyors of the highways are not a corporate body. The lord of the manor in whom the fee of the soil was vested, was held to be a trustee for the surveyors for the time being as to the herbage (ƒ). VI. Effect of an award on the parties and strangers.]—As an examination of the effect of an award on parties and others occupies many pages elsewhere in this work, we must refer to them for an exposition of the effect of an award on infant Corporations. parties (g), on corporations and corporate property (h), on Parties added. parties added on the reference of a cause, and on those who have in fact become parties by acquiescence in the reference (i); on agents (), or attorneys (1), who have referred matters respecting their principals' interests; on executors, both when themselves parties to references relating to their testator's estate, and when only interested as representing a deceased party to the submission (m); on trustees (n), or assignees of bankrupts and insolvents (2); on public officers, Agents. Trustees. (e) Doe d. Harris v. Saunder, 5 A. & E. 664; Doe d. Duke of Beaufort v. Neeld, 3 M. & G. 271; Kingsley v. Young, 17 Ves. 468; 18 Ves. 207. (f) Johnson v. Hodgson, 8 East, 38. (g) See P. I. ch. 2, s. 1, d. 4, (h) Att.-Gen. v. Clements, 1 p. 22; P. III. ch. 4, s. 1, d. 2, stranger consenting to award. (k) As to agents, see P. I. ch. 2, s. 2, d. 1, p. 23. (7) As to solicitors, see P. I. ch. 2, s. 2, d. 2, p. 25. (m) See P. I. ch. 2, s. 2, d. 4, p. 29, reference by executors; P. III. ch. 6, s. 1, d. 3, liability to attachment; P. II. ch. 3, s. 3, d. 7, p. 166, liability of party dying. (n) See P. I. ch. 2, s. 2, d. 5, (0) See P. I. ch. 2, s. 3, d. 1, p. 32. p. 33. in whose name by statute a company are to sue and be sued (p); and on those who are strangers to the submission (2). PART III. CH. I. Strangers to submission. By the code civile in force in the Mauritius an award binds the judgment creditors of the parties as it binds the parties (»). Creditors. Where the defendant had been arrested, a reference of the Award no cause on the trial (a juror being withdrawn by consent) was defendant discharge of held not to entitle the defendant to be discharged out of from arrest. custody at the plaintiff's suit, even after the award was made; since, as neither the submission by rule of court, nor the award, made any provision for his discharge, the intention of the arbitrators seemed to be that all things should remain in statû quo, until the award was performed (s). with cause In one instance, where, after an award made, the plaintiff Proceeding proceeded in the cause referred, and obtained a verdict, the after award. court refused to set aside the verdict, and left the defendant to his remedy by action on the arbitration bond (t). If a party, pending a reference, assign his contingent right Assigning contingent under the award, and after an award in his favour, receive right before the sum awarded from his opponent, an action for money had award made. and received will lie against him at the suit of the person to whom he has assigned his claim; and if the one who has parted with his interest pay the arbitrator's charges on taking up the award, and receive from the party against whom the award has been made, not only the sum awarded, but also that amount of the costs of the award for which the latter is made liable, the amount of the costs so paid over, as well as the sum awarded, may be recovered by the assignee in the same action (u). award on the The effect of the award on the arbitrator, whether it gives Effect of him a right to remuneration (a), and what liability it may arbitrator. impose on him in respect of directions contained in it (y), or in respect of money or chattels deposited with him to abide PART III. CH. I. Award not avoided by bankruptcy of a party. Effect of Bankrupt and Acts on award of a debt. On costs not provable. Sum awarded good petitioning cre ditor's debt. his decision (≈), is examined in the concluding chapter of the previous part. VII. Effect of award on a party bankrupt.]—The validity of the award is not necessarily affected by a party, after entering into the submission, becoming bankrupt before the execution of the award (a); but it may, nevertheless, in many cases, be enforced by action (6), by attachment (c), or by entering up judgment and issuing execution in the cause referred (d), as in other cases. If, however, nothing but the question of the liability of a party to a debt, or of the amount of a debt owing by him, be referred, and he after the reference, but before the award, become bankrupt, and obtain his certificate, or be discharged under the Insolvent Debtors Act, the fact of the arbitrator having awarded against him cannot preclude him from claiming the benefit of the statutes of bankruptcy or insolvency to relieve himself from liability in respect of all debts from which, had there been no reference, the statutes would have protected him. In such case the award will be set aside (e), or if the bankrupt have been taken on an attachment before he has obtained his certificate, he will, after obtaining it, be entitled to be discharged out of custody (f). But if the award, besides ordering the payment of a debt from which the bankrupt is protected by the certificate, also direct him to pay costs from which he is not so protected, the award will be enforced against him as to the costs (g). An award of a sum certain creates a debt which is provable under a commission of bankruptcy, and is a good petitioning creditor's debt (h). (z) See P. II. ch. 11, s. 2, d. 3, pp. 497, 499. (a) Edwards, Ex parte, 3 Morrell's Bank. Rep. 79. See P. II. ch. 3, s. 3, d. 4, p. 162, revocation by bankruptcy. (b) Taylor v. Marling, 2 M. & G. 55. (c) Hemsworth v. Brian, 1 C. B. 131. See P. III. ch. 6, s. 3, d. 3, showing cause against attachment. (d) Andrews v. Palmer, 4 B. & A. 250. See P. III. ch. 8. R. v. Bingham, 2 Tyrw. 46. f) R. v. Davis, 9 East, 317; Baker's case, 2 Stra. 1152. (g) R. v. Davis, 9 East, 317; Haswell v. Thorogood, 7 B. & C. 705. (h) Antram v. Chace, 15 East, 208. Where, after an award for the plaintiff in an action for the balance of an account, the defendant, before judgment was entered on the verdict taken subject to the reference, committed an act of bankruptcy by filing a declaration of insolvency, and giving notice thereof immediately to the plaintiff, the court allowed the plaintiff to prove as a creditor for the amount awarded and for interest and costs (i). PART III. CH. I. arbitration creditor's When a party fails to perform the award, the arbitration Penalty in bond being forfeited, the penalty becomes a debt sufficient, bond good until the award be set aside, as a petitioning creditor's debt, petitioning to support a commission of bankruptcy. The mere filing a debt. bill in Chancery to impeach the award will not suspend its effect, or make the debt insufficient (k). awarded. VIII. Effect of an award on the solicitor's lien for costs.]— Solicitor's The attorney of the plaintiff in the cause referred has a lien lien on sum for his costs upon a sum awarded to the plaintiff, as he has upon a sum recovered by verdict and judgment, and if, after notice of the lien, the defendant pay the money to the plaintiff, instead of to the plaintiff's attorney, the latter may Enforcing lien by rule compel a repayment to himself by summary application to of court in the court, and he will not be prejudiced by a collusive release case of fraud from the plaintiff to the defendant (1). But the attorney's right to apply personally seems limited to the case of an attempt to defraud him. An arbitrator awarded that the plaintiff had no claim on the defendant in the action, but ordered a third person, party to the reference, to pay the plaintiff a sum of money and the costs of the reference. The plaintiff having subsequently become a bankrupt, his attorney, who claimed a lien for his costs on the sum awarded, applied for a rule calling on the third party to pay him the amount, the latter having declined to do so, as the bankrupt's assignee would not sanction the payment; the court refused the motion, on the ground that as such a rule would, under the 1 & 2 Vict. c. 110, s. 18, have the conclusive effect of a judgment, it would not be granted unless the claim were free from all doubt, (i) Harding, Ex parte, 5 De Gex, M. & G. 367. (k) Lingood, Ex parte, 1 Atk. (7) Ormerod v. Tate, 1 East, 464; Symonds v. Mills, 8 Taunt. 526. Not unless from doubt. claim free PART III. CH. I. Attorney cannot have a rule to pay him the amount on which he claims a lien. When lien claim of assignees of party bankrupt. which the court did not consider it to be in the case before them (m). In the above case the court also expressed a doubt whether the attorney could enforce his lien by applying for a rule calling on the opposite party to pay. In a later case the court decided he could not. There the arbitrator found a verdict for the defendant in the cause, but directed him to pay the plaintiff a sum of money in respect of the matters in difference, and ordered the plaintiff at the same time to pay the defendant the costs of the cause, which were to abide the event of the award. The defendant, deducting his costs of the cause, paid the plaintiff's attorneys the balance. They claimed a lien of the whole sum awarded, but the court refused to grant them a rule to compel the defendant to pay them the amount he had deducted (n). If an uncertificated bankrupt brought an action for work paramount to done by him subsequent to his bankruptcy, his attorney, if the action were referred, had a lien for his costs of the action and reference on the amount awarded to the bankrupt paramount to the claim of the assignees; and if in consequence of a claim by the assignees the defendant refused to pay the amount to the bankrupt, and an action were commenced in the bankrupt's name on the award, the defendant might obtain an interpleader rule calling on the assignees to contest their right as against the attorney (0). Effect of award. Alteration in The award in a cause seems to have the same effect as a judgment on the attorney's lien for costs (p). See the cases in the notes under the rules before the Judicature Acts, as to the effect of an award of set-off on the attorney's lien for costs (q). IX. Effect of altering an award.]-The court has no power award by the to alter or amend the award (r). court. (m) Holcroft v. Manby, 2 D. & L. 319. (n) Dunn v. West, 10 C. B. 420. (0) Jones v. Turnbull, 2 M. & W. 601. (P) Cowell v. Betteley, 10 Bing. 432. See Figes v. Adams, 4 Taunt. 632. (1) Doe d. Swinton . Sinclair, 5 Dowl. 26; Domett v. Hellyer, 2 Dowl. 540; Caddell v. Smart, 4 Dowl. 760; Brearey v. Kemp, 24 L. J. Q. B. 310; Pringle v. Gloag, 10 Ch. D. 676. (r) Hall v. Alderson, 2 Bing. 476; Wood v. Duncan, 7 Dowl. 91; Moore v. Butlin, 7 A. & E. 595. |