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CHAPTER III.

THE AWARD AS A GROUND OF ACTION OR DEFENCE

AT LAW.

PART III.
CH. III.

Contents of

Or the various modes of enforcing awards, the most universal
is that by action at common law. An award may either
form the ground of an action, or may be used to resist a
claim attempted to be asserted by action. Both these uses chapter.
are considered in the present chapter.

The first section shows how to enforce an award by action.
Section two points out how to state an award in pleading.
The effect of an award when pleaded as a defence is
examined in the third section.

The fourth declares what sort of answer may be pleaded to defeat a claim or invalidate a defence resting on an award pleaded by an opponent.

The fifth section, after discussing the mode of proof of the submission and award, investigates the effect of an award in evidence, as between the parties, and as regards strangers; and concludes by pointing out how an award put in evidence may be impeached by evidence in reply.

the third

SECTION I.

HOW TO ENFORCE AN AWARD BY ACTION.

PART III. CH. III. 8. 1.

1. An award a ground of action.]—An award may be enforced as of right by action, whether the submission be by parol, by writing not under seal (a), by bond (b), or deed (c), An action lies

(a) Hodsden v. Harridge, 2 Saund. 62 b. n.

(b) Winter v. White, 3 Moore, 674; Ferrer v. Oven, 7 B. & C.

427.

(c) Tomlin v. Mayor of Fordwich, 6 N. & M. 594.

to enforce award.

PART III.

CH. III. S. 1.

When action

by judge's order (d), order of Nisi Prius (e), rule of court (ƒ), or order of equity (g).

If the award be one giving compensation for land taken only remedy. under the Lands Clauses Acts an action seems the only remedy (1), and that will not lie until after a conveyance of the land has been executed (i). As to an action for the costs, see ante, p. 474. So it is the only remedy when the submission cannot be made, or has not the effect of, a rule of court, and no statute provides for a special mode of enforcement. When the validity of an award is doubtful, the court will neither enforce it nor set it aside summarily, but will leave the parties to their action, except when the objections to the award are such as cannot be raised in an action (j).

Costs of

reference need

not be taxed

When the award gives the costs of the reference but does not fix the amount, they need not be taxed before an action before action. be commenced to recover them. But it seems they ought to be taxed before trial (k).

Semble not costs of

This necessity of having the costs taxed does not seem award alone. to exist when the costs of the award paid to the arbitrator are alone sought to be recovered from the defendants and there is no suggestion that his charges are excessive (7).

Action for costs of award.

Where two parties agree to employ an arbitrator, and one pays a sum to take up the award, he may, in the absence of any provision to the contrary, recover a moiety from the other party in an action for money paid (m).

II. Enforcing award by action.]-In an action on an award

(d) Still v. Halford, 4 Camp. 17: Stalworth v. Inns, 13 M. & W. 466; Wharton v. King, 1 Moo. & Rob. 96; Lievesley v. Gilmore, 35 L. J. C. P. 351, S. C. L. R. 1 C. P. 570.

(e) Bonner v. Charlton, 5 East, 139.

(f) Tremenhere v. Tresillian, 1 Sid. 452; Carpenter v. Thornton, 3 B. & A. 52.

(g) Dowse v. Coxe, 3 Bing. 20. Buccleuch, Duke v. Metropolitan Board of Works, L. R. 5 App. Cas. 418, S. C. below, L. R. 3 Ex. 306; on appeal, L. R. 5 Ex. 221; Newbold v. Metropolitan Rail. Co., 14 C. B. N. S. 405.

(i) East London Union v. Me

tropolitan Rail. Co., L. R. 4 Ex. 309.

(j) Stalworth v. Inns, 13 M. & W. 466; Hall and Hinds, In re, 2 M. & G. 847. See post, P. III. ch. 6, s. 1, p. 593.

(k) Holdsworth v. Wilson, 32 L. J. Q. B. 289, S. C. 3 B. & S. 1, reversing Holdsworth v. Barsham, 31 L. J. Q. B. 145, S. C. 2 B. & S. 480; Lewis v. Rossiter, 44 L. J. Ex. 136; Sharpe v. Metropolitan District Rail. Co., 4 Q. B. D. 645; in H. L. 5 App. Cas.

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since the Judicature Acts, the statement of claim to be
endorsed on the writ of summons may be: "The plaintiff
claims £
for money payable under an award;" or

"£ X. Y."

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PART III.

CH. III. S. 1.

, for damages for non-compliance with the award of Under the old law different forms of action were applicable to different cases. The old action of assumpsit Assumpsit. lay to enforce an award when the submission was not under seal (n), for each instalment of money awarded (0), against parties contracting jointly or severally (p), and against executors (9). An assignee of an interest under the award could not sue in his own name (r); but a bare trustee could (s); so could one party sue the other to recover a moiety of the costs of taking up the award (t).

An action of debt lay on an award of a sum of money, Debt. whether the submission was by deed, writing not under seal, rule of court, or by parol, against a party or his executor (u).

arbitration bond.

If the submission were by bond, an action of debt for the Debt on the penalty in case of non-performance of the award was always maintainable (→). This was the case, though the time for making the award were enlarged by deed, for altering the condition does not defeat the bond (y). But this form of action did not lie if the time were enlarged by agreement not under seal (z).

Where the defendant had entered into a recognisance con- Scire facias.

(n) Hodsden v. Harridge, 2 Saund. 62 b. n.; Purslow v. Baily, 2 L. Raym. 1039; Tilford v. French, 1 Sid. 160; Squire v. Grevett, 6 Mod. 34, S. C. 2 Ld. Raym. 961; Lupart v. Welson, 11 Mod. 171.

2

(0) Cooke v. Whorwood, Saund. 336, e.; Rudder v. Price, 1 H. Bl. 547; 1 Chitt. Pl. 103, 6th ed.

(p) Mansell v. Burredge, 7 T. R. 352. See Genne v. Tinker, 3 Lev. 24; Johnson v. Wilson, Willes, 248; Duke of Northumberland v. Errington, 5 T. R. 522.

(1) Dowse v. Coxe, 3 Bing. 20. Day v. Smith, 1 Dowl. 460. (s) Banfill v. Leigh, 8 T. R.

(t) Bates v. Townley, 2 Ex.

152.

(u) Purslow v. Baily, 2 Lord Raym. 1039; Hodsden v. Harridge, 2 Saund. 62 b. n.; Winter v. White, 3 Moore, 674, S. C. 1 B. & B. 350; Hampton v. Boyer, Cro. Eliz. 557; Freeman v. Bernard, 1 Ld. Raym. 247; Bowyer v. Garland, Cro. Eliz. 600; Riddell v. Sutton, 5 Bing. 200, S. C. 2 M. & P. 345; 3 & 4 W. IV. c. 42, ss. 13, 14; Riddell v. Sutton, 5 Bing. 200.

(x) Ferrer v. Oven, 7 B. & C.

427.

(y) Greig v. Talbot, 2 B. & C.

179.

(z) Brown v. Goodman, 3 T. R. 592, cited in the notes.

PART III.

CH. III. S. 1.

Covenant.

Case.

Changing the

venue.

Affidavit of debt.

Interest on

ditioned to abide by the award of A. B., and A. B. declined to act, by a rule of court a new arbitrator, C. D., was by consent substituted, and the latter made his award the court held that a scire facias on the recognisance was not maintainable, since the defendant, by disobeying the award of C. D., had not forfeited the recognisance, which was to abide by the award of A. B. (a).

Where the submission was by deed, an action of covenant lay for the breach of any part of the award, though debt lay only for the non-payment of money (b). If a person covenanted to abide an award, and he or she revoked the submission, an action lay for the breach of covenant (c).

If a person were directed by an award to cleanse a drain, and he wrongfully neglected to do so, a party injured might have brought an action on the case (d).

III. Points of practice in actions to enforce awards.]—The cases in the notes relate to the old practice as to changing the venue (e), and as to affidavits of debt to hold to bail (ƒ).

Where money due on a balance of account is awarded to sum awarded. be paid at a particular time and place, if duly demanded there on the day, interest from that day may be recovered, together with the principal, in an action on the award (g). So, where no particular time is mentioned, interest will run from the time the sum is demanded (). Interest, however, can only be recovered in an action, and not on a motion for an attachment (i). It could not be levied on an execution

(a) R. v. Bingham, 1 Tyrw. 262, S. C. 3 Y. & J. 101.

(b) Tomlin v. Mayor of Fordwich, 6 N. & M. 594; Charnley v. Winstanley, 5 East, 266; Marsh v. Bulteel, 5 B. & A. 507; 2 Chitt. Pl. 255, notes, 6th ed.

(c) Charnley v. Winstanley, 5 East, 266. See Le Bret v. Papillon, 4 East, 502; Marsh v. Bulteel, 5 B. & A. 507; Brown v. Tanner, 1 C. & P. 651, S. C. M'Lel. & Y. 464; Marsh v. Bulteel, 5 B. & A. 507.

(d) Sharpe v. Hancock, 7 M. & G. 354.

(e) Whitburn v. Staines, 2 B. & P. 355; Stanway v. Heslop, 3 B. & C. 9; 2 Archb. Pr. 958,

7th ed. Mondel v. Steele, 8 M. & W. 640; Greenway v. Carrington, 7 Price, 564; Martin v. Daws, 1 D. & L. 279.

(f) Armstrong v. Stratton, 1 Moore, 110; Driver v. Hood, 7 B. & C. 494; Anon. 1 Dowl. 5.

(g) Pinhorn v. Tuckington, 3 Camp. 468. See 3 & 4 W. İV. c. 42, s. 28; Marquis of Anglesey v. Chafey, Manning's Digest, title Interest, A. a, pl. 19, cited in Churcher v. Stringer, 2 B. & Ad. 777.

(h) Johnson v. Durant, 4 C. & P. 327.

(i) Churcher v. Stringer, 2 B. & Ad. 777.

issued on a judgment entered up pursuant to the award (j); nor on an execution under the statute 1 & 2 Vict. c. 110 (k).

Under the Judicature Rules, Order XLII. r. 16, interest at 4 per cent. may be levied from the date of entering judgment. These words seem large enough to give interest when the judgment is entered pursuant to an award.

PART III.

CH. III. S. 1.

No interest is payable on the amount of an award settling Interest, the price to be paid for the purchase of the interest of a Act, 1862. Companies dissentient member, under the Companies Act, 1862 (25 &

26 Vict. c. 89), ss. 161, 162, except from the date when payment of the amount awarded is demanded, and such interest is properly charged at 4 per cent. (7).

interest.

After interlocutory judgment in an action on an award for Computing a sum certain, the court used to refer it to the master to principal and compute the amount of damages, instead of directing a writ of inquiry (m).

Leave was given to the plaintiff, in debt on bond conditioned Writ of to perform an award, after judgment for him upon an issue of inquiry. nul tiel record to a plea of judgment recovered, to execute a writ of inquiry under the statute 8 & 9 W. III. c. 11, s. 8, after a writ of error allowed, and to sign a new judgment on the terms of paying costs, and putting the defendant in statû quo (n).

SECTION II.

HOW TO STATE AN AWARD IN PLEADING.

PART III.

CH. III. S. 2.

award.

1. Averments in a pleading stating an award.]—The mode of pleading has been so altered, in consequence of the Judicature Acts, that much of the old law relating to pleading award Pleading has become obsolete. Yet, as points of pleading often involve principles of law which survive all changes of form, it has been thought better to retain the cases in the notes indicating

(j) Lee v. Lingard, 1 East, 400. (k) Doe d. Moody v. Squire, 2 Dowl. N. S. 327.

(1) United States Direct Cable Co., In re, 4 L. J. Ch. 665,

(m) Meggison v. 571, 9th ed.

Tidd. Pr.

(n) Hanbury v. Guest, 14 East,

401.

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