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PART III. CH. V. S. 2.

Making submission under

the Lands Clauses Act a rule of court.

Entitling affidavits in Chancery.

Appointments of both arbitrators must be made a rule.

Both appointments to

SECTION II.

MAKING A SUBMISSION UNDER THE LANDS CLAUSES CON

SOLIDATION ACT A RULE OF COURT.

By the Lands Clauses Consolidation Act, 1845, where the parties do not agree on a single arbitrator, each party is to appoint one, and such appointment "shall be deemed a submission to arbitration on the part of the party by whom the same shall be made" [s. 25]; and the "submission to any such arbitration may be made a rule of any of the superior courts on the application of either of the parties" [s. 36]. If this is not altered by s. 24 of the Arbitration Act, 1889, referred to at the end of the preceding section, the following pages showing the practice for making the submission a rule of court may be useful.

When the parties proceed in Chancery, the affidavits verifying the submission, or the appointment of the arbitrators, and all other proceedings, should be entitled, "In the matter of the arbitration between A. B. and C. D., and in the matter of the" act or acts which warrant the application to the court (n).

In order to make the submission to arbitration a rule of court, it was necessary that the appointments of both arbitrators should be produced, and verified by affidavits according to the practice of the Queen's Bench (0).

The same practice, it is understood, prevailed in the offices be produced. of the other courts of law (p). It is to be observed that there has been no decision of the courts of law as to the necessity of producing both the appointments.

In the courts of equity a party will be compelled to produce the appointment of his arbitrator, or a verified copy, for the purpose of the submission being made a rule of court (q), or the production will be dispensed with by special order (r).

(n) Re Law, 5 Beav. 509.
Ward v. Great North of
England Rail. Co., T. T. 1847,
Bail Court.

(p) Ex relatione of the officers

of the Queen's Bench Rule Office. (9) Huddersfield v. Jacomb, L. R. 17 Eq. 476.

(r) Hawley v. North Staffordshire Rail. Co., 2 De Gex & S. 33.

PART III.

CH. V. S. 2.

Advisable to

make the

The cases already cited show the great practical difficulty which either party may often have in obtaining possession of the appointment of his opponent's arbitrator, when he wishes to make the submission a rule of court, and the delay, ex- appointments pense, and inconvenience to which this difficulty may subject trators in him. A method, it is suggested, may be found to remedy duplicate. this difficulty, and to enable either party at pleasure to make the submission a rule of court.

If each party took the precaution at the time of the reference of requesting the other party to make the appointment of his arbitrator in duplicate, and if they were mutually to furnish each other with one of the duplicate parts (and not a mere copy), there seems no reason why on producing the appointment of his own arbitrator and the duplicate original appointment of his opponent's arbitrator, and properly verifying both of them, the submission might not be made a rule of court. It is believed that the officers of the courts would not hesitate to draw up the rule on such documents.

Another advantage of this course would be to enable each party to see what his opponent called upon his arbitrator to do, so that if there were any material difference between his own and his opponent's appointment, the error might be rectified before any steps were taken in the reference.

of the arbi

On a motion in the Queen's Bench to set aside an award Appointment made by an umpire under the Lands Clauses Consolidation of umpire Act, the party showing cause objected that the appointment made rule of of the umpire had not been made a rule of court, but the Court of Queen's Bench overruled the objection, holding that step unnecessary (s).

The practice on making submissions to arbitration orders of court under the Railways Clauses Consolidation Act, 1845, the Railway Companies Arbitration Act, 1859, the Companies Clauses Consolidation Act, 1845, and the Public Health Act, 1875, would probably be analogous to that under the Lands Clauses Consolidation Act, 1845.

See, as to making copy of submission a rule of court of law, p. 583. See P. I. ch. 3, s. 7, d. 6, p. 103, as to submissions under the Lands

Clauses Act.

(8) Bradshaw's Arbitration, 12 Q. B. 562.

court.

PART III.
CH. VI.

Contents of the sixth chapter.

CHAPTER VI.

ENFORCING THE AWARD BY ATTACHMENT.

THE summary method of enforcing performance of an award by attachment is set forth in this chapter.

The first section examines to what cases this mode of proceeding is applicable, and, when applicable, under what circumstances the courts in the exercise of their discretion will grant or refuse it.

The second points out the steps necessary to be taken by the party seeking this remedy; namely, demanding performance of the party charged to obey, and serving him with the proper documents, in order to bring him into contempt, and so amenable to the process of the court.

In the third section, the course of the motion for the attachment is considered, and the law is investigated respecting the affidavits to ground the motion, the motion, the defence that may be set up in answer, the result of the application, and the proceedings consequent on the party in contempt being arrested under the attachment.

PART III.

When sub

mission a

SECTION I.

IN WHAT CASES AN ATTACHMENT WILL BE GRANTED.

1. When submission is or has effect of an order of court.]— CH. VI. S. 1. It is only when the submission has been made a rule of court, or has effect of having been made an order of court, that the party who refuses or neglects to perform what the award orders is considered as disobedient to the order of court, as much as if the award were part of the order, and is conse

rule not performing

award contempt of court.

PART III.

CH. VI. 8. 1.

at common

law.

quently guilty of a contempt of that court. The process, therefore, by which the courts punish contempts, called an attachment, will be issued against him to compel his obedience to the directions of the arbitrator, under the penalty, in ordinary cases, of imprisonment until he comply (a). Before the time of Charles II., though an attachment would Attachment issue, when the submission was by judge's order or rule of court, to compel the party to submit to the arbitrator, or to punish him for a breach of the submission, it was not considered by the courts of common law that obedience to the award, when made, could be enforced by the same process. But in the reign of that monarch, though the courts at first hesitated about granting applications for attachments for nonperformance of the award, yet they ultimately allowed them; and the granting the remedy by attachment was in William the Third's reign spoken of as the settled practice of the courts (b).

In the courts of equity no such difficulty seems to have Attachment been felt about granting attachments for non-performance of in equity. the award, when the submission was by an order in equity (c).

statute of

So convenient a remedy was it found, that the statute 9 & Attachment 10 W. III. c. 15, was passed to extend to all submissions under the respecting matters of a civil nature, which should contain Will. III. consent clauses for making them rules of court, the same compulsory method of enforcement which had previously been confined to submissions concerning matters respecting which actions or suits had been commenced.

That statute has been repealed by the Arbitration Act, Arbitration Act, 1889. 1889 (d), but by its first section it is enacted that on references by consent out of court the submission generally shall have the same effect in all respects as if it had been made an order of court.

At the present day, as a general rule, whenever the sub- Attachment mission can be, or has the effect of having been, made a rule lies when

(a) Bac. Ab. Arb. H.; Anon. 1 Salk. 71.

(b) Clemenhere v. Tresilian, 2 Keb. 645; Stiles v. Triste, 1 Keb. 130, 138, S. C. Sid. 54, S. C. T. Raym. 35; Darbyshire v. Cannon, 1 Mod. 21; Holt v. Berry, 3 Keb. 844; Anon. 1 Salk. 71; Forster

v. Brunetti, 1 Salk. 83; Hall v.
Mister, 1 Salk. 84; Anon. 12 Mod.
257; Veale v. Warner, 1 Saund.
237 c.

(c) Bac. Ab. Abr. H.; Hide v.
Petit, 1 Cas. in Chanc. 91, 185.
(d) 52 & 53 Vict. c. 49.

submission

PART III.

CH. VI. 8. 1.

can be made a rule.

No attachment when cause abates by death.

Attachment

on reference

of court, the award is capable of enforcement by attachment; and the converse holds also, so that whenever the submission cannot be made an order of court, as where it is merely verbal (e), or where, if in writing by agreement out of court, it contains words showing an intention that it should not be made an order of court (f), no attachment can be granted, even though a cause be the subject-matter referred (g), for the court has no jurisdiction where there is no rule of court (h).

If by matter subsequent the submission, after having been made a rule, ceased to be valid as a rule of court, the like result followed. Therefore, where a cause before issue joined was referred by a judge's order, and the arbitrator found that the plaintiff had no cause of action, and the order of reference was then made a rule of court, and after this the defendant died, and the costs, which were to abide the event, were taxed; the court held, that the suit abated by the death of the defendant, that they could not enforce a rule made in the cause which was gone, and that therefore his administratrix could not have an attachment against the plaintiff for nonpayment of the costs, but must bring an action to recover them (i); and Parke, J., remarked that in the case of Rogers v. Stanton (k), relied on in argument, the point concerning the abatement of the suit was not fully considered. In that case, under a reference by a judge's order, to which a stranger to the cause had become a party, the executor of the defendant, who had died after the award was made, was held entitled to an attachment against the stranger for the amount which the arbitrator directed the latter to pay to the defendant (1).

On proceedings of a criminal character an attachment of indictment. equally lies. Thus, if an indictment for a nuisance have been referred and a verdict taken subject to the reference, the defendant may be compelled by attachment to abate the nuisance as directed by the award (m).

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