PART III. CH. VIII. S. 3. nominal damages to warrant judg ment for costs. the event of the award, that the party in whose favour the award should be made might sign judgment in the same manner as if the cause had been tried at Nisi Prius, and that if in the plaintiff's favour, he might issue a writ of possession thereon, and proceed in the usual way for costs on such judgment; it was said by the court that if the plaintiff recovered on one only out of two demises, the defendant would be entitled to costs on the other; and though the arbitrator Entering awarded no damages, Coleridge, J., was of opinion that in signing judgment, the plaintiff might enter it for a shilling damages, so as to warrant the judgment for costs (7). On the reference at Nisi Prius of an indictment for a Moving for nuisance, if a verdict be taken for the Crown, subject to the judgment on award, and the arbitrator leave the verdict untouched, and referred. direct that the nuisance shall be discontinued, the verdict remains to secure performance of the award, and the prosecutor, in case the defendant neglects to obey the arbitrator's directions, has the choice either of proceeding by attachment, or of moving for judgment on the verdict. In case the course is adopted of calling up the defendant for judgment, the motion should be made on affidavits, stating the award and the fact of the defendant's non-performance. The defendant should have notice of the motion, and should be furnished with copies of the affidavits on which the motion is to be made (m). an indictment matter of Quarter Sessions may be entered as judgment of the Court of On a reference of any matter of appeal to a Court of Award on General or Quarter Sessions, which may be referred under reference of statute 12 & 13 Vict. c. 45, when the submission is effected appeal to before the appeal is entered, the award, by section 12, is to be as binding and effectual as a regular judgment of the Court of General or Quarter Sessions, and may be enrolled among the records of the court. When the submission is by order of the Court of Sessions, the award, on application made in due time, may be entered as the judgment of the Court of Sessions in the appeal, and shall be as binding and effectual to all intents as if given by the court (n). (1) Doe d. Madkins v. Horner, 8 A. & E. 235. (m) R. v. Gore, 8 Dowl. 102. (n) See the Appendix of Statutes. See ante, p. 97. See also R. v. West Riding Justices, 34 Sessions. PART III. CH. VIII. S. 4. No demand requisite before execu tion. Interest on SECTION IV. ISSUING EXECUTION FOR THE AMOUNT AWARDED. Though, to warrant the quasi criminal process of attachment, personal service of the award on the party is necessary, no such step needed to have been taken before issuing execution on the verdict for the amount awarded, as this was only civil process (0). Execution could issue only for the sum awarded. There sum awarded. could have been no additional charge for interest recoverable under this method of proceeding (p). If the party sought interest, he had to bring an action on the award, and then he could obtain both principal and interest (g). But now by R. S. C. (1883) Order XLII. r. 16, the writ of execution for the recovery of money may be indorsed with a direction to the sheriff to levy the amount due and four per cent. interest from the entry of the judgment. Obtaining payment out of sum de posited in court. Execution against a company by mandamus. Where an arbitrator awarded to the plaintiff one sum in respect of the matters in the action referred, and another sum in respect of matters not in the action, the court made absolute a rule entitling the plaintiff to have paid out of court to him the amount awarded in the action, out of a larger sum deposited by the defendant in court in lieu of bail; but they refused to engraft on the rule a direction to pay over the residue to the defendant, saying that there ought for that purpose to be a separate application by the defendant, which the plaintiff should have the opportunity of answering by affidavit (). If an award order a public officer of a company, in whose name the company by statute are to sue and be sued, but who is exempted from personal liability, to pay money or costs in respect of an action referred, if the act give no (0) Borrowdale v. Hitchener, 3 B. & P. 244, overruling Read v. Garnett, Barnes, 58. See R. S. C. 1883, Ord. XLII. rr. 1 et seq. (p) Lee v. Lingard, 1 East, 400. (7) Churcher v. Stringer, 2 B. & Ad. 777. (r) Fowle v. Steinkeller, 9 Dowl. 1037. power of taking out execution against the goods of the company, and no other mode exist of enforcing payment, a mandamus will lie to the treasurer and directors, commanding them to pay the sum awarded (s). PART III. CH. VIII. S. 4. A mandamus would lie to a local board of health to pay Against a the compensation awarded by an arbitrator under the Public local board of Health Act, 1848 (†). health. infinite We have previously seen that by the stat. 22 & 23 Vict. Distress c. 59, s. 26, it is provided that an award between railway against companies under this act may be enforced by distress infinite railway and other process (u). companies. (8) R. v. St. Katherine's Dock Co., 4 B. & Ad. 360. (t) Ringland v. Lowndes, 15 C. B. N. S. 173. (u) See ante, P. III. ch. 7, s. 2, d. 3, p. 631. 652 CHAPTER IX. PART III. CH. IX. Scope and contents of the ninth chapter. SETTING ASIDE AN AWARD ON MOTION. HAVING discussed the various modes of enforcing valid awards, we have now to see how a party may obtain relief at law against one that is void or defective. This, if his objections be well founded, he may in general effect by the summary method pointed out in this chapter-of making a motion in court to set aside the award. On what references the courts of law have jurisdiction to entertain the motion,-within what period after the award has been published the motion must be made, and for what causes the courts will set the award aside,—are respectively set forth in the first three sections. The other succeeding sections treat of,-the practical steps to be taken on making the application,-the motion to set aside, the answer that may be given by the party supporting the award, and the result of the motion. PART III. CH. IX. S. 1. SECTION I. THE JURISDICTION OF THE COURTS TO SET AN AWARD ASIDE It is only when the submission is by rule of court, or can be made a rule of court, or has the effect of a rule of When subcourt (a), that the courts have any jurisdiction to set aside an mission by rule of court. award on motion (b). When the submission was by agreement out of court, the courts of common law had no authority (a) Bennett v. Watson, 29 L. J. Ex. 357, S. C. 5 H. & N. 831; stat. 52 & 53 Vict. c. 49, s. 1. (b) Mitchell v. Staveley, 16 East, 58. to set aside an award until the statute 9 & 10 W. III. c. 15, which is now repealed (c). For misbehaviour of the arbitrator, the only remedy was by bill in equity, since it could not be pleaded as a defence to an action on the award (d). PART III. CH. IX. S. 1. W. III. c. 15. The statute of William III. provided in effect, that in Stat. 9 & 10 all cases where the submission contained an agreement for making it a rule of any of the superior courts of record, the award, if procured by corruption or undue means, should be set aside on complaint to the court of which the submission was agreed to be made a rule (e). Now by the Arbitration Act, 1889, s. 11 (2), "where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the court may set the award aside." The words of this section seem large enough to apply to parol references, though probably not intended to do so. Setting aside: Arbitration court. The jurisdiction to set aside an award, in old times, Motion in whether at common law or under the statute of William III., could alone be exercised on motion made for that purpose openly in the court of which the submission had been made a rule; for a judge at chambers had no power to set aside an Not before a judge at award, though in vacation he could stay all proceedings chambers. under the award till the next term, in order to allow time for an application to avoid it to be made to the court (f). And it would seem that under the above-quoted section, the power of setting aside awards is still confined to the court alone. Where the submission allowed the making it a rule of any divisional court of the High Court of Justice, and it was court of which made a rule of the Queen's Bench Division, the Chancery submission is Division refused to entertain a motion to set aside the award (g). Motion in divisional made rule. Common It was held that an award made pursuant to an order of Court of reference on the trial at the Lancaster assizes of a cause in Pleas at the Common Pleas at Lancaster, could not be impeached on Lancaster. motion in the courts at Westminster, for they did not acquire (c) 52 & 53 Vict. c. 49, s. 26. (d) Veale v. Warner, 1 Saund. 327 c, notes. (e) Dawson v. Sadler, 1 S. & S. (f) Cromer v. Churt, 15 M. & W. 310. (g) Lomax Arbitration, 42 L. T. N. S. 391. |