PART III. CH. VI. S. 1. Attachment lay for party or represen II. For whom and for what an attachment will be granted.]An attachment would be granted on the application of a party to the submission, or if he were dead, of his personal representative, if the rule of court were not avoided by the death (n). A stranger to the submission cannot have an Not for a attachment to enforce payment of a sum which the award stranger. directs to be paid to him, though the direction itself, under the circumstances, be perfectly valid (0). tative. the arbitrator. On one occasion it was said that an arbitrator might have Whether for an attachment to enforce payment of the costs of the award (p), but the soundness of that opinion was denied in a subsequent case (g). There does not seem to be an instance of such an application having been granted; and the courts have said, that an arbitrator cannot have a rule ordering a party to pay him his costs (»). lies if award formed. For costs as Whether the award order a party to pay money or to do Attachment any collateral act, an attachment lies if he fail to comply, not persince disobedience in either case is equally a contempt (s). The costs of the reference and award (and when there is a cause referred the costs of the cause also, even though no separate damages be awarded) might be taxed pursuant to the award on the rule of court embodying the submission, and if not paid might be recovered, together with the amount specified in the award, as the debt or damages (t). well as damages. up award. Where the award orders each party to pay a moiety of the For money costs of the award, the party who, in order to get the award paid on taking from the arbitrator, pays the whole, is entitled to an attachment against his opponent for the moiety for which under the award he is liable (u). No attachment can be granted to recover interest on a sum of money awarded to be paid by a certain day, though interest from that time may be recovered by action (x). Not for inawarded. terest on sum PART III. CH. VI. S. 1. Second motion for attachment. No attach ment against peers. Members of the House of Commons. Whether attachment against executors. Assignees and trustees. Executor. Where an attachment was refused because the applicant had not paid, in the first instance, certain costs which he sought to recover from his opponent, he was allowed to renew his application on affidavits, showing the new fact that he had subsequently paid the amount (y). III. Who not liable to be attached.]-No attachment lies against a peer (≈), or a member of the House of Commons (a), for disobedience to an award. It will not issue against the executor of a party who dies after the award is made without having performed it, for the contempt is personal, and the liability to punishment for a contempt dies with the person (b). So, though there be a clause preventing the death of a party revoking the arbitrator's authority, and the party die pending the reference, his executors cannot be compelled by attachment (though they may by action) to perform the award on the part of their testator (c). As, by submitting to a reference without guarding against being personally responsible, executors and trustees, and assignees of bankrupts and insolvents, are taken impliedly to admit that they have sufficient funds or assets to answer the award, they are liable to an attachment if the arbitrator order them to pay, and will not be allowed to allege, in excuse for non-performance, that they have no assets (d). An executor personally liable for the costs of an action referred may be compelled to pay them by the like process (e). If the arbitrator order an executor to pay out of the assets which may be in his hands, or which may come to him, an attachment will not issue if he have no assets in hand, but will be subsequently granted on proof of assets having come in (ƒ). PART III. CH. VI. S. 1. Where a woman, whom the arbitrator directed to deliver up two notes, and to pay a sum of money, failed to comply, and afterwards married, and her husband refused to pay the Husband and amount, it was doubted whether the court could grant an attachment against both or either of them (g). wife. If a public company be by statute authorised to sue and be Public officer. sued in the name of their treasurer, but he is not to be liable in person or goods by reason of being a defendant, the reference of actions, in which he is so made the nominal plaintiff or defendant, does not impose upon him any personal liability to an attachment for not paying the amount awarded against him. A mandamus against the treasurer and directors is the only remedy (h). An attachment does not lie against a corporation for non- Corporation. performance of an award (i). If any process of contempt can issue, when a corporation is in default, it must be against the individual members of the corporation (k). tion. Though the party be beyond the jurisdiction of the court Party beyond at the time of his neglect to perform the award, and remain the jurisdicout of the jurisdiction, the court will nevertheless issue the process, as an attachment to enforce an award is not in the nature of criminal, but merely civil process, and the court will not inquire whether it can be made available (1). IV. On what awards attachment refused.]—It was very Compulsory doubtful whether an award on a compulsory reference under reference. s. 3 of the Common Law Procedure Act, 1854, now repealed, was enforceable by attachment (m). The cases cited should be considered with respect to compulsory references under the present law. The award itself, though valid, may be so framed as to preclude a remedy by attachment. An attachment will not be granted unless the whole and No attachentire duty with which it is sought to charge the party is not ascertaindistinctly ascertained by the award. Therefore, where an ing amount to be paid. (g) Anon., 1 Cromp. 265, 3rd ed., cited 2 Tidd, Pract. 835, 9th ed.; Bac. Ab. Abr. H. (h) Corpe v. Glyn, 3 B. & Ad. 801. (i) Guildford v. Mills, 2 Keb. 1; Anon. T. Raym. 152. (k) London v. Lynn, 1 H. Bl. 206. (7) Hopcraft v. Fermor, 8 Moore, 424, S. C. 1 Bing. 378. (m) Talbot v. Fisher, 2 C. B. N. S. 471; Newbold v. Metropolitan Rail. Co, 14 C. B. N. S. 405. award ordered the plaintiff to repay to the defendant any sum he should be made to pay on a bill of exchange, and the defendant, on affidavit that he had been forced to pay the amount of the bill, sought an attachment against the plaintiff for not recouping him, the application was refused; for where an unliquidated sum is to be paid, the court will not ascertain the amount upon affidavits (n). If the award find a certain sum to be due, but do not order the party indebted to pay the sum, no attachment can be granted; for there is no contempt of court when there is no express order to pay the amount awarded (o); but the remedy by action on the award, or by obtaining a rule to pay (p), or by execution under the Arbitration Act, 1889 (q), remains. An unauthorised direction of a verdict to be entered for a certain sum, does not amount to an order to pay that sum, so as to warrant an attachment (»). If an award direct that A. or B. shall do an act, it seems doubtful whether an attachment can issue against either (s). Though the remedy by action on the award be of right, it is perfectly discretionary with the court, whether they will grant an attachment or not (t). It is reported as having been decided, that when an award appears unreasonable the court will not grant an attachment, but leave the party to his action on the award (u). In one instance the Court of Common Pleas refused to grant an attachment for enforcing a parol award (v); but on a subsequent occasion they considered the objection to the award being by parol to be futile, and made the rule for the attachment absolute (x). There is also another recorded instance of an attachment issuing under similar circum (n) Graham v. Darcey, 6 C. B. 537. (0) Seaward v. Howey, 7 Dowl. 318; Edgell v. Dallimore, 3 Bing. 634, S. C. 11 Moore, 541; Scott v. Williams, 5 Tyrw. 506, S. C. 3 Dowl. 508, S. C. sub nom. Hopkins v. Davies, 1 C. M. & R. 846. (p) Baker v. Cotterill, 7 D. & L. 20, S. C. 18 L. J. Q. B. 345; Bowen v. Bowen, 31 L. J. Q. B. 193. (9) 52 & 53 Vict. c. 49, s. 12. stances (y). But it is apprehended that at the present day the courts would be very slow to grant an attachment on a parol award (z). PART III. CH. VI. S. 1. award. Where the arbitrator made a mistake in his award in the Mistake in Christian name of the defendant, the court refused to enforce it against the defendant by attachment (a). On a reference by a judge's order where the award set forth a supposed submission by order of Nisi Prius, it was said in one case the court would not enforce the award by attachment (b). award If there be any reasonable doubt as to whether the award Validity of be sufficient in law, or if the question turn on a disputed doubtful. matter of fact, and the affidavits be contradictory, the courts would refuse the application and leave the party to his action; for if an attachment issued the award had to be obeyed, and there was no means of appealing against the decision of the court, and solemnly trying the validity of the award (e). Thus, where the parties agreed to abide by the award made by the "two arbitrators and their umpire," and the award was made by the two arbitrators only, the objection being taken that all three ought to have executed it, the court considered the point too doubtful to grant an attachment (d). The power of the master to tax the costs of a cause and reference separately for each of the two joint defendants in the cause referred is too questionable to warrant the granting an attachment against the plaintiff, at the instance of one of the defendants, for non-payment of his share of the costs awarded to the defendants (e). the court. After a long delay, for four years from the time when the Delay in award was made, Patteson, J., said he required an affi- applying to davit explaining the delay before an attachment could be allowed (f). But in a later instance, though the above was 54. (y) Rawling v. Wood, Barnes, (z) Bennett v. Watson, 29 L. J. Ex. 357, S. C. 5 H. & N. 831. (a) Lees v. Hartley, 8 Dowl. 883; Davies v. Pratt, 16 C. B. 586. (b) Christie v. Hamlet, 2 M. & P. 316, S. C. 5 Bing. 185. (c) Dickenson v. Allsop, 13 M. & W. 722, S. C. 2 D. & L. 657; Cargey v. Aitcheson, 2 D. & R. 222; Thornton v. Hornby, 1 M. R. & Sc. 48, S. C. 8 Bing. 13; Stal- (d) Heatherington v. Robinson, (e) Dickins v. Jarvis, 5 B. & C. 528. (f) Storey v. Garry, 8 Dowl. 299. Q Q |