PART III. CH. VI. 8. 1. No attachment together with action on award. Old rule, attachment after action. Electing by which mode to proceed. cited, Erle, J., held that a delay of two years and three months unexplained was no objection to proceeding by attachment (g). v. No proceeding by attachment and action at the same time.] -As it is considered vexatious to bring two separate proceedings for the same ground of complaint, the courts will not permit a party to enforce the award by action and attachment at the same time (7). Formerly a different rule prevailed. Though judgment had been first obtained in an action on the arbitration bond, the court, in one instance, granted an attachment, on the ground that an attachment might possibly be a more quick and effectual process than suing out execution on the judgment (). And in other cases, where attachments had been granted, and the party taken into custody, the courts refused to stay proceedings in actions on the arbitration bonds, subsequently commenced, alleging that the plaintiff had had no satisfaction upon the attachment (). In a cross action by the defendant, though the plaintiff had given notice of set-off of the sum awarded in his favour, the court nevertheless made absolute the plaintiff's rule for an attachment, but ordered it to stay a month in the officer's hands (7). Where a question as to the regularity of the judgment for the plaintiff, in an action on the award, was referred to the master, an attachment was granted pending the inquiry, but was subsequently stayed on the judgment being reported regular (m). In more modern times, in some instances, the courts have refused to grant an attachment while an action is pending (n), even where the plaintiff was willing to waive the action, on the ground that the party had made his election as to which of the two remedies he would adopt, and must abide by it (o). (g) Bailey v. Curling, 20 L. J. Q. B. 235. (h) Stock v. De Smith, Cas. temp. Hardw. 106. (i) Clarke v. Elwick, 10 Mod. 332. (k) Anon. 1 Salk. 73; Paterson v. Gross, 2 Barnard, 227. (1) Harrison v. Oliver, Barnes, 56. (m) Richardson v. Chancey, cited in Stock v. De Smith, Cas. temp. Hardw. 106, S. C. 1 Barnard, 386. (n) Stock v. De Smith, Cas. temp. Hardw. 106. (0) Badley v. Loveday, 1 B. & P. 81. PART III. CH. VI. S. 1. Attachment on discon action. But in others the attachment has been allowed to issue on the plaintiff's undertaking to discontinue his action (p). The more regular course is to discontinue the action, and pay the costs of it first, and after that to apply to the court for the tinuing process of contempt (g). The fact of an action having been commenced is no bar to the motion, provided it be not pending when the demand of performance is made, and it lies on the party resisting the application to show that it is pending (»). Filing an affidavit of debt in the Court of Bankruptcy in Filing affirespect of the amount awarded, with a view to make the davit of debt. defendant a bankrupt (which view the defendant had defeated by entering into a bond with sureties, under the statute 1 & 2 Vict. c. 110), did not preclude a motion for an attachment, no action having been commenced ($). attachment. If an action be brought on the award after the defendant Action after has been taken into custody on an attachment, the plaintiff will be put to his election, and if he prefer proceeding with the action, the attachment will be set aside, and the defendant discharged out of custody on his entering into a bond with sureties, to the plaintiff, in the nature of a bail-bond (t). In one case, Wilde, C.J., stated his opinion that where a party, who having wilfully refused to perform an award, which he had the means of obeying if he chose, had been taken on attachment, and sentenced to a term of imprisonment for the contempt, he was not, after suffering the punishment, entitled to his discharge, or relieved thereby from an action on the award (u). SECTION II. STEPS NECESSARY TO BRING THE PARTY INTO CONTEMPT. PART III. CH. VI. 8. 2. 1. Demanding performance of the award.]-The first step to be taken with a view to proceeding by attachment, is to make the submission a rule of court, unless it has the effect Making sub (p) Paull v. Paull, 2 Dowl. 340, S. C. 2 C. & M. 235; Anon. Andr. 299. (q) Paull v. Paull, 2 Dowl. 340. Higgins v. Willes, 3 M. & R. 382. (8) Mendell v. Tyrrell, 1 Dowl. N. S. 453. (t) Earl of Lonsdale v. Whinnay, 3 Dowl. 263. (u) R. v. Hemsworth, 3 C. B. 745. mission a rule of court. PART III. CH. VI. S. 2. Taxing costs. Costs of award. Demand of performance necessary. Not valid of having been made an order of court. For until there exists, or there is deemed to exist, a rule of court to be obeyed, non-performance of the award cannot be a contempt of court. The rule has no relation back for the purpose of rendering a party liable to this summary process (~). If any costs be awarded and sought to be obtained, the amount, unless found by the arbitrator, must generally be settled by the master on taxation. When costs of the award alone are sought to be recovered, and there is no imputation made that they are excessive, it was decided by Coleridge, J., that it was not necessary to have them taxed before applying for an attachment (y); but more recently Blackburn, J., doubted that authority, and declined to act upon it (≈). The party or parties entitled under the award must make a demand upon the party or parties liable under it to obey the directions of the arbitrator, whether they be for the payment of money or the performance of any other act. It was doubted in one case by Eyre, C.J., whether a demand need be made, when the time and place for the payment of money are specified in the award, and there has been a failure in the performance; but that learned judge yielded his opinion to what he found was the imperative practice, and decided that a demand was necessary even in such a case (a). This decision was confirmed on consideration (b). But Parke, B., is reported (c) to have said that a demand in such a case is not necessary. His observation, however, was merely an obiter dictum, and made in affirmance of a statement of counsel to that effect, and supposed, but erroneously, to be supported by the case cited (d), and without reference to the authorities mentioned above. A demand to comply with the award, so as to bring the motion to set party into contempt, cannot be made while a rule for setting pending aside award. aside the award is pending; for while the validity of the award is under the consideration of the court on a motion to set it aside, non-performance of its directions is no contempt (e). PART III. CH. VI. S. 2. Where the arbitrator ordered the defendant to deliver a Demand by bond to the three plaintiffs, and one only demanded it, the all parties. court refused an attachment, holding that the demand ought to have been made by all three, or under a power of attorney executed by them all, so that the defendant might have known that it was by their joint authority (f). But where money is payable to two co-plaintiffs, a demand Demand of of the sum by one only is sufficient (g). A money by one. or Demand by party or agent attorney. The demand may be made either by the party himself, by a third party, authorised by power of attorney (h). demand by the clerk of the party entitled is not enough (i). In one instance, a demand by an agent under a written authority, indorsed on the award, and unstamped, was, after hesitation, considered sufficient to warrant a rule nisi for an attachment (); but at the present day the courts would assuredly refuse their process, unless the agent who demanded a sum of money awarded acted under a power of attorney from his principal (1). with power of cution of a A distinction is taken between demanding money awarded, Agent deand calling upon the party to perform other acts directed to manding exebe done. Thus, if an award direct the execution of certain deed. deeds, the agent who tenders the deeds for execution need not be empowered by deed or power of attorney to make the demand (m). Whether a valid demand of the damages or of the costs awarded in a cause referred can be made by the attorney or his agent, without a power of attorney, does not seem to have been decided with respect to awards generally, though it is (e) Dalling v. Matchett, Willes, 215; Morris v. Reynolds, 1 Salk. 73. (f) Sykes v. Haigh, 4 Dowl. 114. (g) Bailey v. Curling, 2 L. M. & P. 161, S. C. 20 L. J. Q. B. 235; Drew v. Woolcock, 24 L. J. Q. B. 22. (h) Tidd, Pr. 836, 9th ed.; Mason v. Whitehouse, 6 Dowl. 602. (i) Hartley v. Barlow, 1 Chitt. 229. (k) Langman v. Holmes, 2 W. Bl. 990. (1) Laugher v. Laugher, 1 Dowl. (m) Tebbutt v. Ambler, 2 Dowl. Demand by attorney. PART III. CH. VI. S. 2. Party not attending to receive sum awarded. Performing apprehended that in many cases it would be sufficient; for it is clear that when costs are payable to a party by a rule of court, his attorney may often demand payment by virtue of his character (n). If the award order the defendant to pay the plaintiff or his attorney, naming him, the attorney can make a valid demand without any power of attorney (o). If the attorney have a lien on the amount awarded, and give the party notice of his lien at the time of the demand and before the money has been paid, an attachment will, it seems, issue if payment be refused (p). Though the award direct payment of money at a particular time and place, and the party to whom it is awarded do not attend to receive it, a proper demand any time subsequent will be sufficient for an attachment, as the duty to pay the sum awarded is a continuing liability, unless indeed the award expressly order that it is to be payable on the particular day, and not after (7). There is no contempt if any condition precedent to the condition pre- attaching of the duty remain unperformed. cedent. Allowing appointed day to pass by. Demand only Hence, when a defendant is ordered to execute a conveyance, if the plaintiff be bound to prepare and tender the conveyance, the refusal of the defendant to convey the land is no ground for attachment, unless the proper deeds have been tendered to him for execution (r). And if the defendant is, "on or before a certain day," to execute a conveyance to be prepared by the plaintiff, the latter must tender the conveyance for execution on or before the day. If he allow the day to slip by, but demand execution afterwards, no attachment will be granted, and, it seems he will be wholly without remedy (8). If the arbitrator award on a matter not within his authowell awarded. rity, the demand should be only in respect of what is well of what is (~) Inman v. Hill, 4 M. & W. 7; Dennett v. Pass, 1 Bing. N. C. 638; Fortescue, Ex parte, 2 Dowl. 448; Mason v. Whitehouse, 6 Dowl. 602, contrà, S. C. 4 Bing. N. C. 692, acc.; 2 Archb. Pract. 1257, 7th ed. (0) Hare v. Fleay, 11 C. B. 472. (p) Ormerod v. Tate, 1 East, 462. (7) Craike, In re, 7 Dowl. 603. (r) Standley v. Hemmington, 6 Taunt. 561; Doe d. Clarke v. Stillwell, 8 A. & E. 645. See Performance, ante, ch. 2 of this part, p. 530. (8) Doe d. Williams v. Howell, 5 Exch. 299. |