PART III. CH. IV. S. 3. on disobedi obedience were not paid to it within the time limited, an attachment was issued (either in term time or vacation), without any order of the court, upon production to the record Attachment and writ clerk of an affidavit of the due service of the ence. order (u). Since the Judicature Acts it would seem that the attachment cannot be issued without leave of the court or a judge, to be applied for on notice to the party (). Whether the award were made in a suit, or on a submission Enforcing under the statute of Will. III., the statute 1 & 2 Vict. c. 110, sum awarded payment of s. 18, gave a speedy and summary method of enforcing pay- under stat. of ment of money awarded (y). That section gave to all decrees and orders of courts of equity, whereby any sum of money, costs, charges, or expenses should be payable to any person, the effect of judgments in the superior courts of common law. Victoria. By virtue of the orders of the Court of Chancery made Fieri facias under that statute (≈), the party who was entitled to the sum under orders and elegit awarded, and who had obtained an order for payment, might, of Chancery. after the lapse of one month from the time when such order for payment was duly passed and entered, sue out a writ of fieri facias or elegit for the amount (a). On an arbitration under the Public Health Act, 1875, the Taxing costs. costs, per Pearson, J., may be taxed in the Chancery Division, following the common law practice, without a special order to tax (b). Performance of the award may also be summarily enforced by proceedings under the Arbitration and Judicature Acts, as stated hereafter, p. 630. The Court of Chancery would not generally order money to be paid out of court upon motion, the proper mode of obtaining it being by petition; but where the rights of the parties in a cause had been ascertained by arbitration, though no (u) 2 Daniell's Chanc. Pract. by Headlam, 1026; Bac. Ab. Arb. H.; Hide v. Petit, 1 Cas. in Chanc. 91, 185. See Knox v. Simmonds, 3 Bro. C. C. 58. (x) See Order XLIV. rule 2 (1883). (y) See P. III. ch. 7, as to proceeding on the statute in the common law courts. (z) General Orders, May 10, 1839. (a) Smith's Handbook of Chanc. Pract. 45, 369; 2 Daniell's Chanc. Pract. by Headlam, 1013. (b) Clark v. Corporation of Bath, W. N. (1884), 127. Enforcing tration and under Arbi Judicature Motion to out of court. PART III. CH. IV. S. 3. Motion by defendant to tiff's suit pursuant to award. decree had been made, the payment of money out of court was ordered upon motion (c). Where the defendant moved in the Exchequer that a suit dismiss plain- in equity in that court be dismissed pursuant to an award, the court said they could not act on the award, and that if the plaintiff refused to dismiss his bill, if that were the meaning of the award, the remedy against him was by attachment in that court of which the submission was a rule (d). Enforcing award in charity suit on petition. Charitable corporation renew lease. The Court of Chancery would not act under an award made in a charity cause, without the consent of the AttorneyGeneral, or a reference to the master to see whether it was for the benefit of the charity; and Lord Eldon, C., observed that in those cases where the information could not be filed without the consent of the Attorney-General, the same principle required his authority and consent throughout (e). In another case affecting a charity, the same learned judge remarked, that formerly the Court of Chancery was more in the habit of giving effect to awards than at his day it was accustomed to do (f). An information having been filed against a charitable compelled to corporation, the matters in the suit were referred to arbitration. The award, made and confirmed by decree of court, in 1716, ordered the corporation to grant certain leases on lives renewable on fines. A petition having been presented, in 1823, before Lord Eldon, C., to compel the corporation to renew a lease pursuant to the award, the Lord Chancellor expressed great doubts whether, in the case of a charity, he had any jurisdiction to enforce the award, yet nevertheless directed the lease to be granted, as the lands had been enjoyed under the award ever since it had been made; and as Lord Hardwicke, C., had twice assumed the jurisdiction, and acted on the very award under similar circumstances, he should, notwithstanding his own doubts, consider the award as not to be disturbed except by the House of Lords (g). (c) Smith's Handbook of Practice in Chancery, 56; Oliver v. Burt, 1 Beav. 583; Bromley, In re, 13 L. J. Ch. 320. (d) Hutchinson v. Hodgson, 2 Anst. 361. (e) Attorney-General v. Hewitt, 9 Ves. 322. (f) Attorney-General v. Clements, 1 Turn. & R. 58. (g) Ibid. CHAPTER V. MAKING THE SUBMISSION A RULE OF COURT. PART III. THIS chapter is confined to setting forth the practical steps to be taken in the preliminary proceeding of making the submission a rule of court, though this is now rarely necessary to Subject of be done. Section one treats of making the submission a rule of the High Court. In section two the practice, both at law and equity, of making the submission or appointments of the arbitrators a rule of court under the Lands Clauses Consolidation Act, is considered. the fifth chapter. SECTION I. MAKING THE SUBMISSION A RULE OF COURT. The practice of making a submission to arbitration a rule of court arose first in the time of Charles II. It was done for the purpose of rendering any misconduct under the submission, or any refusal to act on the award, a contempt of court, and to give the court jurisdiction over the award and the parties to the submission (a). This practice applied only to references of suits or causes in court. But being found by experience to be convenient, the stat. 9 & 10 Will. III. c. 15, extended it to arbitrations by agreement out of court. As that statute has been repealed by the Arbitration Act, 1889 (b), which by sect. 1 provides for a submission, in a (a) Per Blackburn, J., Buccleuch, Duke v. Metropolitan Board of Works, L. R. 5 Ex. 230. PART III. CH. V. S. 1. PART III. CH. V. S. 1. Submission in an action. Practice making submission rule. reference out of court, having the same effect in all respects as if it had been made an order of court, it seems hardly necessary to retain a statement of the effect of the cases on the point. But they are referred to in the note (c). When the submission was by judge's order, or order of Nisi Prius, either party could at any time, in term or vacation (d), by application ex parte to the court in which the action was brought, make it as of course a rule of court. The power of the courts to make such submissions rules of court does not arise from any statute, but depends on their inherent jurisdiction over judicial proceedings before them (e). The course adopted on a reference by order of a judge or of Nisi Prius was simply to annex the order of reference to the motion paper given to counsel. No affidavit was necessary, unless there had been an enlargement of the time by the arbitrator. In vacation, as well as in term, there must have been a motion paper signed by counsel. The rule in each case was absolute in the first instance (ƒ). (c) Cases on making submis- v. Mills, 17 Ves. 419; Glaysher, parte, W. W. & D. 577; Milstead v. Craufield, 9 Dowl. 124; R. v. Price, 2 C. & M. 212; Evans v. Thompson, 5 East, 188; Roberts v. Evans, 6 B. & S. 1, S. C. 34 L. J. Q. B. 7; Welsh, In re, 1 Dowl. N. S. 331; Gripe v. Wilkie, 20 W. R. 112; Carter v. The Burial Board of Tonge, 29 L. J. Ex. 293, S. C. 5 H. & N. 523. Cases on making the submission a rule in Chancery: Davey v. Railway Passengers' Assurance Co., 49 L. J. Ch. 568; Oglesby's Arbitration, W. N. 150 (1879); Harvey v. Shelton, 7 Beav. 455; Wilkinson v. Page, 1 Hare, 267; Lewis v. Eley, May, 1823, cited in Heming v. Swinnerton, 1 Coop. C. C. 423, notes; 16 L. J. Ch. 287. (d) Taylor, In re, 5 B. & A. It does not seem necessary to make a judge's order or order of Nisi Prius a rule of court now. To make a submission by agreement out of court a rule of court, it used to be necessary to have an affidavit of the due execution of the submission, and a half-guinea motion paper signed by counsel, which were taken to chambers, and the rule was drawn up thereon. If the submission were lost, a verified copy would suffice (g). PART III. CH. V. S. 1. Whether the submission were made a rule by the common Dating rule. law authority of the court or under the statute of William, the rule, if delivered out in vacation, must have been dated on the day of the month and week on which it was delivered out, but should have been entitled as of the term immediately preceding the vacation (h). The liberty of drawing up a rule in vacation was very convenient, for when a cause had been the subject of the reference, judgment might often have been entered and execution issued in vacation for the amount awarded (i); and even where that remedy was not applicable, time was gained for making the demand and serving the rule of court during the vacation, so as to enable the party to make application for an attachment, or execution under the statute of Victoria, on the first day of the next term (7). rules under public acts. Certain public acts require that submissions to arbitration Making subunder them shall be made orders of court; this may still be missions. a necessary step in such cases. The Arbitration Act, 1889 (1), enacts in s. 24, that its provisions shall apply to references under any other act, "except in so far as this act is inconsistent with the act regulating the arbitration, or with any rules or procedure authorized or recognized by that act." A compulsory reference by judge's order under the Com- Under mon Law Procedure Act, 1854, did not need to be made a rule of court to enable the court to deal with it (m). (g) Short v. Frank, 3 Jur. 341; Parker v. Bach, 17 C. B. 512. As to the practice when the submission was withheld, see Thomas v. Philby, 2 Dowl. 145; Lord Borton v. Mesham, 8 Dowl. 867; Smith and Blake, In re, 8 Dowl. 131; Midland Rail. Co. and Heming, In re, 4 D. & L. 788; 11 Jur. 904; Plews v. Middleton, 6 Q. B. 845; Bligh v. Cottal, 3 N. R. 117; Gething v. Fotheringham, 13 W. R. 90. 381. (i) Cremer v. Churt, 15 M. & W. (m) Bennett v. Watson, 29 L. J. Common Law |