When there was any fair ground for giving indulgence to a party in contempt, though it be not sufficient to induce the court to refuse or set aside the attachment, the court would often direct it to be stayed for a certain period in the office, or would impose such terms as seem equitable (a). In order to the drawing up the rule absolute, the original award must have been produced and deposited with the master. A copy was insufficient. The award was not to be filed in court, but was to be returned after the rule had been complied with. If a party had a lien on the award, but was willing to allow the award to be enforced, provided he did not lose his lien, the master would receive the award from him and return it to him (b). v. Proceedings on the attachment.]-When the rule for an attachment is made absolute, the rule must be drawn up by the master, after which the solicitor must make out the attachment on parchment, and get it signed at the master's office, and sealed according to the practice of the court. Costs are in the discretion of the court, and should be asked for when the writ is applied for (c). The attachment is to be taken to the sheriff's office, and a warrant obtained on it. On this warrant the sheriff's officer will arrest the party (d). At one time, when it was considered that all attachments were criminal process, it was held that the arrest might be made on a Sunday; but that is not law now, since it has long been settled that an attachment for non-performance of an award is only in the nature of a civil execution (e). If an attachment have been irregularly obtained, it will be set aside; but when an attachment has been granted on the usual affidavit of service, the court will not set it aside on the mere affidavit of the party that he has never been served, un (a) Caila v. Elgood, 2 D. & R. 193; Smith and Reeves, In re, 5 Dowl. 513; Tyler v. Campbell, 5 Bing. N. C. 192; Palmer's case, 12 Mod. 234. See P. III. ch. 6, s. 1, d. 5, p. 594. (b) Davis v. Potter, 21 L. J. Q. B. 134. (c) Dallas v. Glyn, 46 L. J. N. S. Chanc. 51; Abud v. Riches, 2 Ch. D. 528. (d) 2 Arch. Pract. 952, 14th ed. See also the Crown Office Rules, 1886, rr. 261-276, affecting the practice on the Crown side of the Court of Queen's Bench. (e) R. v. Myers, 1 T. R. 265. less he can show some mistake in the service, as that another person has been served for him; since, as process is usually served without a witness, it would lead to great inconvenience if a different rule should prevail (ƒ). PART III. CH. VI. S. 3. the attach By Order XLIV. r. 1, 1883, R. S. C., "A writ of attach- Practice on ment shall have the same effect as a writ of attachment ment. issued out of the Chancery Division has heretofore had." Though the common law practice may, therefore, be varied, the cases on the old practice may still be useful. sheriff's Where a party was arrested under an attachment for con- Tendering tempt of court in not paying money, he was not entitled to be amount to discharged on tendering the amount to the officer (g). As an attachment for non-performance of an award is in Party not the nature of a civil execution, it is laid down in an old edition always imof a book of practice that interrogatories are never filed, but performance. that the party is detained in custody, until he pay the money ordered, or otherwise perform the award (). When the contempt was only non-payment of money awarded, probably the doctrine above laid down might have been good. But it certainly did not hold as a general rule in all cases, or in all the courts. prisoned until In some cases in the Queen's Bench, the usual course pur- Examined on sued in the case of attachments of a criminal character was interrogatories. adopted, and interrogatories were filed, and the master of the Crown Office had to report whether the party was in contempt or not. His report that the party was guilty of a contempt Reported in was conclusive, and, though affidavits in mitigation were contempt, fine imposed. admissible, none would be received in denial of the contempt. The court then sometimes imposed a fine, and committed the party until it were paid (i). If the master reported that no contempt had been com- Reported not mitted, the party was discharged. An award ordered the in contempt, discharged. defendant to sign a written authority to certain auctioneers to sell an estate in which he was interested. On his refusal, an attachment issued against him out of the King's Bench, and he put in bail to answer to interrogatories before the master. In answer to the interrogatories, the defendant set (f) Hopley v. Granger, 1 B. & P. N. R. 256. (g) Pitt v. Coombs, 3 N. & M. 212. (h) 2 Archb. Pract. p. 1273, 7th ed.; see also p. 1394, 13th ed. (i) Coulson v. Graham, 2 Chitt. 57. PART III. CH. VI. S. 3. Discharged out a clause in the award, on which he contended that he was not bound to execute the authority to sell until it appeared that certain parties could make a good title to the estate, which had not been done. Upon this the master reported him not to be in contempt, and the attachment was discharged (4). When a party in custody for not performing an award, on bail to ap- directing her to convey an estate, had ruled the prosecutor pear and be examined. Practice in Continuing disobedience to file interrogatories, and they had been filed, but she had not been ruled to appear before the examiner according to the usual practice in attachments, the court discharged her on bail, to appear before the examiner when the prosecutor chose to call her, although the objection was taken that she was in custody on what was treated as a civil process, and that the court had no power to interfere (1). In the Common Pleas an attachment was granted against a party then bankrupt, who, by an award made before the fiat, was ordered to pay a sum of money, and to deliver some wine warrants, and wine in bottles, to his opponent, but had not done so. Wilde, C.J., in passing sentence, said, “The non-performance of the award is not a single act of contempt which will be purged by a definite period of imprisonment; but the prisoner may, at the expiration of the term for which not purged by the court upon this occasion sentences him, if the award shall imprisonment then remain unperformed, be again brought up to answer for his continuing contempt. Nor will he thereby, as I conceive, be relieved from an action on the award. It is evident from the statements contained in the several affidavits, that the prisoner can, if he pleases, perform the award, and his not doing so is a wilful and pertinacious contempt of the authority of the court" (m). for a term. Discharging bankrupt. Where, after being taken into custody on an attachment for not performing an award to pay a sum of money, the prisoner became bankrupt, and obtained his certificate, it was decided in an old case that he was entitled to be discharged out of custody (n). A bankrupt defendant, who, after obtaining his certificate, (k) Wood v. Griffith, 1 Wils. C. C. 34, S. C. 1 Swanst. 43. (7) Doe d. Clarke v. Stillwell, 2 Dowl. N. S. 18. (m) R. v. Hemsworth, 3 C. B. 745. (n) Baker's case, 2 Stra. 1152. was arrested on an attachment for not performing an award, applied for his discharge under the following circumstances. The award, made on the 30th of April, ascertained the amount of a partnership account, the subject of a suit in Chancery, due from the defendant, and ordered him to pay it to the plaintiff on the 30th of May. On the 14th of May the defendant became a bankrupt. It was held that the ascertained debt was provable under the commission, but not the costs in Chancery, which had not been taxed before the bankruptcy, and that the certificate was no discharge as to the costs, to which the plaintiff had only an inchoate right before taxation. The court ultimately directed that on payment of the costs of the Chancery suit the defendant should be discharged from the attachment (0). PART III. CH. VI. S. 3. insolvent. By the 33 G. III. c. 5, s. 4, a party in custody on an attach- Discharging ment for non-payment of money or costs, pursuant to an award, was put upon the same footing as a common debtor, and as such was entitled to the benefit and subjected to the provisions of the Lords' Act (32 G. II. c. 28) (p), now repealed. If the defendant is to be discharged from an attachment Costs of on certain terms, and on paying the costs of the attachment, attachment. the costs of an inquiry before the master, rendered necessary by the defendant's conduct, in order to enable him to obtain his discharge, will be considered as costs of the attachment (q). (0) R. v. Davis, 9 East, 317. 494. (9) Tyler v. Campbell, 5 Bing. N. C. 193. 618 CHAPTER VII. PART III. Contents of ENFORCING THE AWARD BY PROCEEDINGS UNDER THE How advantage may be taken, in the case of awards within the cognisance of the courts of law, of the provisions of the statute 1 & 2 Vict. c. 110, which gives to rules of court for the payment of money the effect of judgments, and of the Arbitration Act, 1889, which render awards by leave of the court or a judge enforceable as judgments, is considered in the first section of this chapter. The second section investigates the practice of obtaining such rules to enforce payment of a sum awarded. PART III. CH. VII. S. 1. No summary process to levy sum awarded before statute of Victoria. SECTION I. RULE TO PAY THE AMOUNT AWARDED. In old times, when there was no cause in court, though the submission were made a rule of court, there was no summary method of enforcing payment of a sum of money awarded by levying it out of the debtor's property. It is true the amount might have been recovered by action on the award, and then execution might have issued against his goods and lands, but the process was slow and expensive: the penal process by attachment was also open, but if the party were out of the jurisdiction of the courts, he could not be attached, or if, after being arrested, he chose to lie in prison, in neither case, however ample the property, could satisfaction of the debt be obtained. Now, however, the statute 1 & 2 Vict. c. 110, s. 18, which gives to a rule of court for the payment of money the effect of a judgment, |