SECTION IV. HOW TO ANSWER IN PLEADING AN AWARD PLEADED. PART III. CH. III. S. 4. Defeating 1. Traversing the submission.]—It is not intended in this section to enumerate all the kinds of defences which may be pleaded to defeat a claim resting on an award. Those only award are discussed which have some special reference to the sub- pleaded. ject of arbitration. the submis If a defendant in an action to enforce an award deny that Traversing he entered into any submission, or into the submission set out sion. in the statement of claim, he must traverse the fact. award. 11. Old plea no award made.]—Anciently, the plea of no Plea of no award meant strictly that no award at all had been made (ƒ). But in later times it was held to mean that no award had been made pursuant to the submission, and it might have been shown under that plea that the arbitrators did not execute the award together (g); or that the award was not made within the time alleged in the declaration as limited for the making of the award; or that a matter in difference duly notified to the arbitrator had not been awarded on (). But he would have failed on an issue on such a plea if he relied on the fact that the award (though according to the submission) was bad for showing on its face that the arbitrator had exceeded his jurisdiction (i); or that the two arbitrators had made their award without exercising their own judgment, but according to the opinion of a third person, (f) House v. Launder, 1 Lev. 85; Harding v. Holmes, 1 Wils. 122; Morgan v. Man, 1 Lev. 127, S. C. T. Raym. 94; Roberts v. Marriot, 2 Saund. 183, S. C. 1 Lev. 300; Com. Dig. Pleader, F. 7; Keilway, 175; Skinner v. Andrews, 1 Lev. 245; Roberts v. Eberhardt, 27 L. J. C. P. 70, reversed in error, 28 L. J. C. P. 74; Fisher v. Pimbley, 11 East, 188. See Hickes v. Cracknell, 3 M. & W. 72; Spooner v. Payne, 16 L. J.C. P. 225. See also Beckett v. Midland Rail. Co., 35 L. J. C. P. 163, S. C. L. R. 1 C. P. 241; Mitchell v. Staveley, 16 East, 58; 44. (h) Harrison v. Creswick, 13 C. B. 399; Roberts v. Eberhardt, 27 L. J. C. P. 70, S. C. 3 C. B. N. S. 482; King v. Bowen, 8 M. & W. 625; Elsom v. Rolfe, 2 Smith, 459; Dresser v. Stansfield, 14 M. & W. 822; Armitage v. Coates, 4 Ex. 641; Linsey v. Ashton, Godb. 255. (i) Adcock v. Wood, 6 Ex. 814, Not every objection to award open on plea of no award. PART III. CH. III. S. 4. Misconduct or mistake of arbitrator not pleadable. Plea must show how award performed. Plea of by whose decision they had beforehand agreed to be bound (j); or that the award had been set aside (); or that the arbitrator gave him no opportunity of being heard (7). 111. Misconduct or mistake of arbitrator whether pleadable.]— To an action on an award, the defendant could not formerly plead collusion with a party or other misconduct of the arbitrator in avoidance of the award (m), or a mistake of the arbitrator (n). But as a bill in equity lay to set aside an award for certain misconduct and mistakes of an arbitrator, and as all equitable defences may now be relied on, such misconduct and mistakes might probably now be pleaded as a defence (o). IV. Pleading performance of the award.]-In debt on bond for non-performance of an award, the defendant could not plead generally that he had performed it, but he must show the award, and how he had performed it (p). v. Other pleadings to defeat the award.]-In debt on an award under the hand and seal of the arbitrator, a plea that the cause of action did not accrue within six years was formerly held bad, since the Statute of Limitations, 1 J. I. c. 16, s. 3, did not apply to awards under hand and seal, which were said to be quasi specialties, or, it is presumed, to any awards at all (2). However, the plea would have been good after 3 & 4 W. IV. c. 42, which provided, by s. 3, “All (7) Thorburn v. Barnes, 36 L. J. C. P. N. S. 184, S. C. L. R. 2 C. P. 384. (m) Whitmore v. Smith, 31 L. J. Ex. 107, S. C. 7 H. & N. 509; Wills v. Maccarmick, 2 Wils. 148; Brazier v. Bryant, 10 Moore, 587; Chicot v. Lequesne, 2 Ves. Sr. 315; Veale v. Warner, 1 Saund. 327 a, n. 3; Grazebrook v Davies, 5 B. & C. 534; Braddick v. Thompson, 8 East, 344; Dyer v. Dawson, cited in Heming v. Swin- (n) Hall & Hinds, In re, 2 M. & G. 847, see note, p. 852; Johnson v. Durant, 2 B. & Ad. 925. (9) Judicature Act, 1873, 36 & 37 Vict. c. 66, s. 24. (P) Anon. F. Moore, 3, pl. 9; Genne v. Tinker, 3 Lev. 24; Veale 2. Warner, 1 Saund. 324 a, 1, 3; Furser v. Prowd, Cro. Jac. 423; Anon. 1 Vent. 87; Hagh v. Chadwick, 2 Keb. 667. (1) Hodsden v. Harridge, 2 Saund. 61 m, S. C. 2 Keb. 462. Sce Bac. Ab. Arb. 228, 5th ed., contrà. actions of debt upon any award, where the submission is not by specialty," shall be commenced and sued within three years after the end of the session in which the act passed, or within six years after the cause of such action, but not after. A plea that the defendant revoked the authority of the arbitrator before the award was made, was a good answer to any claim on the award, when the submission was one that was revocable (). PART III. CH. III. S. 4. Plea of revocation by will of party. of female party. The marriage of a female party to the submission pending By marriage the reference might have been pleaded as a revocation of the arbitrator's authority (s). But the bankruptcy or insolvency of a party before the By bankaward is executed could not be pleaded as a revocation (f), ruptcy or insolvency. though bankruptcy and insolvency may sometimes bar the claim on the award (u). A plea to an action on an award under the Lands Clauses Pleading Consolidation Act, 1845, that the indivisible sum awarded excess. included damages and compensation for things in respect of which the umpire had no jurisdiction to give compensation was a good plea (x). foreign In debt on bond, where the award was to pay money by a Plea of particular day, a plea that a foreign attachment in London attachment. issued the same day the money was payable, and that by virtue of it the money awarded was attached in the defendant's hands the day after, was held bad, because the penalty was due when the money was not paid by the day. But Holt, C. J., said the plea would have been a good plea to an action of debt on the award, or to an action on the bond, if the attachment had been executed before the penalty had been incurred, but not to an action of debt on the bond after breach (y). An agreement not under seal to waive and abandon the of waiver of (r) Marsh v. Bulteel, 5 B. & A. 507. (8) Charnley v. Winstanley, 5 East, 266. See P. II. ch. 3, s. 3, d. 5, p. 163. (t) See P. II. ch. 3, s. 3, d. 4, p. 162. (u) See P. III. ch. 1, d. 7, p. 526. (r) Buccleuch, Duke of, v. Metropolitan Board of Works, L. R. 3 Ex. 307; on app. L. R. 5 Ex. 221; in H. L. L. R. 5 App. Cases, 418; Beckett v. Midland Rail. Co., L. R. 1 C. P. 241. (y) Ingram v. Bernard, 1 Ld. Raym. 636. See Robbins v. Scandard, Sid. 327. See Coppell v. Smith, 4 T. R. 312. the award. PART III. CH. III. 8. 4. deed. award could not be pleaded in answer to an action on an arbitration bond. The only remedy was by cross action against the plaintiff for suing on the bond in breach of the agreement (2). Parol accord But where the declaration stated that by deed between the and satisfaction though parties it was agreed that it should be referred to arbitration submission by what sum should be paid the plaintiff by the defendant, and that it was awarded that a certain sum should be paid by instalments, and that the defendant had only paid part; a plea that after breach of the award by non-payment of the first instalments it was agreed that the defendant should desist from doing a certain act, and pay a less sum at different dates in lieu of the sum awarded, and that he had paid such. less sum, and that the plaintiff had accepted it in satisfaction, was held good; as the deed of submission was merely inducement, and the action was on the award, and that therefore an accord and satisfaction not under seal was good (a). Not made within reason able time. Replication claim not covered by award pleaded. Demurrer to pleading stating bad award. Where the submission contained no limit as to time, a plea to an action on the award, that the arbitrators did not make their award within a reasonable time, was held bad (b). To a plea of an award, the plaintiff replied that the subject-matter of his action was not included in the reference; and though the submission was of all matters in difference, and the cause of action existed at the time of the submission, the plaintiff was allowed to show that it was not referred (c). If the plaintiff set out an award bad on its face as stated in the pleadings, the defendant had to demur (d). Demurrers are now abolished (e), but a party may raise by his pleading any point of law, and that may be disposed of separately (ƒ). (z) Braddick v. Thompson, 8 East, 344. (a) Smith v. Trowsdale, 3 E. & B. 83. (b) Curtis v. Potts, 3 M. & S. 145. (c) Ravee v. Farmer, 4 T. R. 146. (d) Gisborne v. Hart, ō M. & W. 50; Cargey v. Aitcheson, 2 B. & C. 170; Fisher v. Pimbley, 11 East, 188. (e) Ord. XXV. r. 1. (f) Ord. XXV. r. 2. See, as to special case, Ord. XXXIV. r. 2. SECTION V. EFFECT OF AN AWARD IN EVIDENCE. PART III. CH. III. S. 5. Execution of submission by must be 1. Proof of the submission and award.]—In an action on an award the submission of all the parties, if traversed, must be proved. If the submission be by agreement in writing, bond, or deed, evidence must be given by the plaintiff of the exe- all parties cution of the instrument by himself and by every party to proved. it, though they are not parties to the action (g). The like necessity is imposed on a defendant who relies on an award as a defence. As in the case of contracts for other purposes, the execution used to be proved by the attesting witness, if there were one, unless his absence was sufficiently accounted for (h). no evidence of A submission, in writing, and attested, was not sufficiently Rule of court proved by evidence of a rule making the agreement a rule submission by of court under the statute 9 & 10 W. III. c. 15; for the agreement. character of the instrument was not changed by being made a rule of court for the particular purpose of summary enforcement. As it was a contract deriving its force from the consent of the parties, and not from the rule, it required to be proved like any other contract (i). of submission But a submission by a judge's order was properly evidenced But evidence by the rule of court; for the judge's order was itself a judi- by judge's cial act, and when made a rule was not altered in character, order. only in form, and the submission became a submission by rule of court just as much as if it had originally been so without a judge's order (k). evidence of An award ordered the defendant to sign a memorandum Performance by which he undertook not to pirate the plaintiff's inven- submission. tions proof that he had signed a memorandum in terms according with the direction of the award was held sufficient evidence of his having submitted to the arbitration (7). (g) Ferrer v. Oven, 7 B. & C. 427; Antram v. Chace, 15 East, 208; Brazier v. Jones, 8 B. & C. 124; Kingston v. Phelps, 1 Peake, N. P. 299. (h) Spooner v. Payne, 4 C. P. 328, S. C. 16 L. J. C. P. 225. (1) Stuart v. Nicholson, 3 Bing. |