being too late, but the learned Vice-Chancellor held that the delay in moving was induced by the defendant, and made the order setting the award aside, which was the subject of the present appeal.

It was shewn by affidavits filed, that on the 4th of September, the defendant's solicitor had served on Mr. Bickford's solicitor a notice, styled in the cause and in the matter of the arbitration, and saying: "Take notice that the above named Henry Crampton Lloyd hereby appeals from the award of the arbitrators herein, and will, amongst other grounds, demur to the jurisdiction of the arbitrators, some or all of them, to act or make the said award."

It also appeared from an affidavit made by the defendant's solicitor, that Mr. Bickford, almost immediately after the award was made, told him he would not submit to it, but would move against it.

The case was argued on September 16th, 1879 (a).

McCarthy, Q. C., and Dickson, for the appellant. The motion to set aside the award was not made within the time limited by the statute, and the notice of the 4th of September, relied upon by the learned Vice-Chancellor, was clearly not sufficient to take the case out of the statute. There is no pretence that Bickford was misled by this notice; and his statement, both before and after it, that he would apply to set the award aside, shews that he was not lulled into inactivity by this notice. Moreover, it appears that the plaintiff did not move promptly after he had reason to believe that the defendant did not intend to move. They referred to Ross v. Ross, 4 D. & L. 648; Moore v. Darley, 1 C. B. 445; Reynolds v. Askew, 5 Dowl. 682; Re Harper and Great Eastern R. W. Co., L. R. 20 Eq. 39; Grand Junction R. W. Co. v. Wason, 44 U. C. R. 203; Rusworth v. Barron, 3 Dowl. 317; In re Midland R. W. Co. v. Heming, 4 D. & L. 788; In re Hotchkiss and Hall, 5 P. R. 423; Harvey v. Shelton, 7 Beav. 455; Emet v. Ogden, 7 Bing. 258; In re Perring and Keymer, 3 Dowl.

(a) Present.-Moss, C.J.A., BURTON, PATTERSON, and MORRISON, JJ.A.

98; Re Moyle and the City of Kingston, 43 U. C. R. 307; College of Christ v. Martin, L. R. 3 Q. B. D. 16; In re North British R. W. Co. and Trowsdale, L. R. 1 C. P. 401; Heming v. Swinnerton, 1 Cooper's Chy. Cases 386; Woodley v. Johnson, 1 Molloy, 394; Russell on Awards, 652, 5th ed. Rogers v. Dallimore, 6 Taunt. 111; Smith v. Blake, 8 Dowl. 133.

H. Cameron, Q.C., and C. Moss, for the respondents. This being a reference by decree, the strict rule in reference to moving against the award is not applicable, as the statute only applies to the Court of Chancery by analogy; and there is, therefore, not that statutory incapacity to waive it. But the Court clearly has the power to entertain such a motion when, as in this case, the delay has been induced by the conduct of the other party. This was not a submission within the statute of William. They cited Russell on Awards, 5th ed., 92, 685; Redman on Awards, 13, 213; Hemsworth v. Bryan, 7 M. & G. 1009; Rawsthorn v. Arnold, 6 B. & C. 629; In re Corporation of Huddlesfield, L. R. 17 Eq. 476, 10 Chy. 92; Rooney v. Rooney, 29 C. P. 347; Sherry v. Oke, 3 Dowl. 349.

January 14th, 1880. PATTERSON, J. A.-It was objected before the learned Vice-Chancellor, and the objection has been insisted on before us, that the motion was too late, the term next after the publication of the award having been Trinity Term, which began on the 26th of August, and ended on the 7th of September.

The learned Vice-Chancellor thought the case was brought within the principle acted on in some instances in which a motion against an award had been heard after the period limited by 9 & 10 Wm III, ch. 15, sec. 2, on the ground that the delay had been caused by the act of the party supporting the award.

The exact ground on which the learned Vice-Chancellor acted is thus stated by him in his judgment, 29 Gr. 379:

(a) Present.-Moss, C.J. A., BURTON, PATTERSON, and MORRISON, JJ.A.

"It is quite true that the notice of appeal was defective, it does not specify the Court to which it was intended to make it, nor the time when the appeal was to be heard; but I apprehend it was quite sufficient to amount to a complaint within the statute, and to sustain a more formal notice. Bickford always intimated his intention to move against the award. Both parties seem to have been dissatisfied with it, and each knew that the other was dissatisfied. The notice of the defendant was given three days before the end of the first term after the award, and the plaintiff had then ample time to have given a notice himself. I think the necessary inference is, that he refrained because he had been served with a notice; and to save the defendant any trouble in his application, he sends him a consent in October to setting aside the award. "I think, therefore, that the plaintiff not moving in the first term after the making of the award was induced by the act of the defendant in leading him to believe that the defendant

was

appealing from it, and that being so, the plaintiff is not to be prejudiced by it.”

I am sorry to have to come to a different conclusion from that so arrived at, both as to the effect of the authorities and as to the case made out for indulgence. I am not pressed by any supposed harshness in the rule which limits the time for moving against an award, nor surprised at the refusal of the Court in North British R. W. Co. and Trousdale, L. R. 1 C. P. 401, which is referred to by the Vice-Chancellor, to entertain the motion after the end of the term, even when both parties consented. When one bears in mind that at common law the award could not have been disturbed, but the parties were absolutely bound by the decision of the tribunal they had themselves created, and that the right to move is merely the right given by the statute, which defines the limits within which it is confined, the ground for surprise seems to be that the Courts should ever have assumed a jurisdiction beyond those limits; not that, in the case referred to, the Court of Common Pleas should have declined to add to such precedents.

I am forced to regard the case of Midland R. W. Co. v. Heming, 4 D. & L. 788, as rather enforcing the principle of adherence to the statutory rule, while I agree with the ViceChancellor that the effect of the decision was to extend the time; because what the Court did was to grant the rule nisi to set aside the award on the last day but one of the term in which it was proper to move; and, (the submission being then in the hands of the other party,) to grant a rule nisi to file the submission with the Master, in order to its being made a rule of Court, as of the day on which the motion to set aside the award was made; and to order that the rule to set aside the award should be drawn up on reading such rule; and the ground on which this exercise of jurisdiction was defended was, that the party applying had taken the initiative within the time limited by the statute.

In Bottomley v. Buckley, 4 D. & L. 157, the reference was not under the statute, but by order. A motion was allowed in the second term, but with the proviso that the rule if granted was to be drawn up as of the preceding

term.

In re Perring and Keymer, 3 Dowl. 98, the reference was under the statute. Williams, J., in giving leave to move in the second term, directed that the rule, if granted, should be drawn up as of the previous term. As pointed out by the learned Vice-Chancellor, the propriety of that decision has been questioned. In refusing to follow it in Smith v. Blake, 8 Dowl. 133, Coleridge, J., said, “I very much doubt the power of the Court to antedate the rule. * I have no idea how the Court can dispense with the provisions of an Act of Parliament, though they may dispense with their own rules."

There are some cases in which the extension of time has been made without care being taken to keep the proceedings in form within the proper term. This occurred principally, I believe, if not exclusively, in cases where the reference was under a rule of Court or Judge's order, and not under a submission executed by the parties; as in

the comparatively old cases of Anderson v. Coxeter, 1 Str. 301; Rogers v. Dallimore, 6 Taunt. 111: and Synge v. Jervoise, 8 East 466. In the later cases the rule has generally been applied with greater strictness, even when the submission was by rule of Court or Judge's order, and only came within the statutory limitation by reason of the adoption by the Courts of that rule: Hemsworth v, Bryan, 7 M. & G. 1009; Reynolds v. Askew, 5 Dowl. 682; Smith v. Blake, 8 Dowl. 133; Guadiano v. Brown, 2 Jur. N. S. 358; Emet v. Ogden, 7 Bing. 258; North British Railway Co. and Trousdale, L. R. 1 C. P.

401.

In Dubois v. Medlycott, Barnes 55, the Court made absolute a rule for an attachment for non-performance of an award, refusing to hear an objection to the award in point of law, because, the submission having been by bond, the objection, made after the first term, came too late.

But in no case, even when the relief granted was of the most indulgent character, was it extended as asked by the plaintiff here. Trinity Term ended on the 7th of September; Michaelmas Term would have ended on the 30th of November if it had not been extended to three weeks, which brought it to the 7th of December. The motion was not made till the 3rd of December, nearly the end of the second term as extended. The matter being in the Court of Chancery there was no need to delay from term to term; nor indeed would there have been at law, as a single Judge sat for the Court every week.

The periods of delay very closely resemble those which occurred in Hemsworth v. Bryan, 7 M. & G. 1009, and which proved an insurmountable obstacle there, notwithstanding, that the reference was only by order, afterwards

made a rule of Court.

I think the reception of the motion under the circumstances was not warranted by the statute or the authorities; and even if the indulgence would have becn justifiable in a proper case, I have been unable to discover sufficient grounds for it.