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may be waived by a party proceeding in the reference CHAP. XVII. after the objection comes to his knowledge, unless he do so under protest. We have from time to time noticed acts amounting to a waiver of objections. (Ante, pp. 115, 155, 161.)

SECT. 2.—Time limited for Moving to set aside an Award.

"An application to set aside an award may be made at any time before the last day of the sittings next after such award has been made and published to the parties." (R. S. C. Order LXIV., r. 14.)

If the award be made in vacation, an application to set it aside must be made before the last day of the next sittings; but if the award be made during the sittings, the parties have until the last day of the following sittings to make the application. (Re Burt, 5 B. & C. 668; Allenby v. Proudlock, 4 Dow. 54.) "Before the last day of the next" sittings is construed strictly against the person moving to set aside the award, and the "application" must be actually made before, and cannot be made on, the last day of sittings. (Re Evans, 4 M. & G., 767; Re Holloway and Monk, 8 Dow. 138; Reynolds v. Askew, 5 Dow. 682; Freame v. Pinneger, 1 Cowp. 23; Re Corporation of Huddersfield and Jacomb, 43 L. J., Ch. 748; L. R., 17 Eq. 476.)

Service of a notice of motion, with or without an affidavit in support, on the opposite side, is "an application." It is not necessary the motion itself should be heard in open court before the last day of sittings. (Re Gullop and Central Queensland, de. Co., 25 Q. B. D. 230; 59 L. J., Q. B. 460; Re Corporation of Huddersfield and Jacomb, supra, on appeal, 44 L. J., Ch. 96; L. R., 10 Ch. 92; Smith v. Parkside Mining Co., 29 W. R. 154; 50 L. J., Ex. 144; 6 Q. B. D. 67.)

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CHAP. XVII.

Order LXIV., r. 7, which enables the court or a judge Power of court to enlarge the time for taking proceedings, has been held

to extend

time.

Cases in

which further time allowed.

by Kekewich, J., to give jurisdiction, on good cause shown, to extend the time for moving to set aside an award. (Re Oliver and Scott, 43 Ch. D. 310; 59 L. J., Ch. 148.)

Before the repeal of the statute of William the Third which fixed the time for applying to set aside an award, it was considered that the court had no power to alter the statute. (Re College of Christ and Martin, 3 Q. B. D. 16.) Accordingly the court would not, after the expiration of the statutory period, entertain a motion, even by consent of the parties (Re North British Rail. Co., 35 L. J., C. P. 262; L. R., 1 C. P. 401), to set aside an award on any account whatever (Reynolds v. Askew, 5 Dow. 682), even for objections appearing on the face of the award (Lowndes v. Lowndes, 1 East, 276); and even although a portion of the delay was caused by the opposite party improperly preventing the submission being made a rule of court (Smith v. Blake, 8 Dow. 133); or by the party not knowing the contents of the award, owing to the arbitrators refusing to give it up until they were paid excessive fees. (Moore v. Darley, 1 C. B. 445.) If, however, any attempt were made to enforce the award by attachment, the application could be resisted at any time whatever, for defects appearing on the face of the award. (Pedley v. Goddard, 7 T. R. 73.)

In cases not within the repealed statute (9 & 10 Will. 3, c. 15, s. 2)—for it did not apply to references by order of court or order at nisi prius-the courts, in the exercise of their discretion, were accustomed to allow further time for motions provided very clear and sufficient reasons were given for the delay. (Rawsthorn v. Arnold, 6 B. & C. 629; Hemsworth v. Brian, 7 M. & G. 1009; 14 L. J., C. P. 36; Reynolds v. Askew, 5 Dow. 682.)

These decisions may be usefully considered in con- CHAP. XVII. nection with any proposed application for extension of time under Order LXIV., r. 7. Thus, where a rule was obtained in time but discharged on grounds purely technical, the court granted a new rule in the second term after the publication. (Sherry v. Oke, 3 Dow. 349.) So, the court entertained a motion after the. time had elapsed, when it was impossible for the solicitor to get counsel's opinion as to the validity of the award within time (Bennett v. Skardon, 5 M. & R. 10); and likewise when counsel had been instructed to move within the proper time but for some cause failed to do so. (Rogers v. Dallimore, 6 Taunt. 111.) So also, where on a reference by a judge's order, the defendant, in whose favour the award was, improperly kept the order of reference from the plaintiff and prevented it being made a rule of court until too late. (Bottomley v.

Buckley, 4 D. & L. 157.)

But the courts usually require a strong case to justify their departure from the ordinary practice, and it has been held not to be sufficient excuse for lateness that the arbitrator refused to give up his award without payment of an exorbitant sum (Macarthur v. Campbell, 5 B. & Ad. 518); or that the party moving did not believe that the other party intended to proceed upon the award, as there had been a previous revocation (Worrall v. Deane, 2 Dow. 261; or that he was misled by a statement of the other party, that the latter intended to move to set the award aside (Emet v. Ogden, 7 Bing. 258); or that the applicant was in ill health and unable to attend to business (Guadiano v. Brown, 2 Jur., N. S. 358); or that the applicant was a trustee of one of the parties to the reference, who had become bankrupt, and that he was only appointed a short time. before coming to the court. (Hobbs v. Ferrars, 8 Dow.

CHAP. XVII.

From when time runs.

Time in case of reference of action where no judgment directed.

Where arbitrator has directed judgment.

Time for setting aside the award begins to run from the day the award is published to the parties; that is, from the day notice of it is given to the parties, and not, on the one hand, from the time it is made, or, on the other, from the time it is actually delivered. (Macarthur v. Campbell, 5 B. & Ad. 518, dissenting from Musselbrook v. Dunkin, 9 Bing. 605, where the Court of Common Pleas considered that an award was only published within the statute when the party might have it by paying a reasonable amount for the arbitrator's charges.)

When an action without other matters in difference is referred to an arbitrator by order of court the award shall, "unless set aside by the court or a judge, be equivalent to the verdict of a jury." This does not mean that the case shall be deemed to have been tried by a jury, but only that the award may be enforced in the same way as the verdict of a jury. (Glasbrook v. Owen, 7 Times L. R. 62; Re Darlington Wagon Co. and Harding [1891] 1 Q. B. 245, 247, per Day, J.) The words "unless set aside by the court or a judge," must not be taken as importing, that under Order LIV., r. 12a, a master in chambers can set aside an award. The application is properly made to a divisional court in the King's Bench Division (see Gower v. Tobitt, 39 W. R. 193), and in the Chancery Division to the judge to whom the action is assigned. (Wynne-Finch v. Chaytor, 89 L. T. 123; see Serle v. Fardell, 44 Ch. D. 299.)

We have seen (ante, p. 221) that an arbitrator to whom an action is referred may direct judgment to be entered, and any party may move to set aside such judgment, and to enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong. (Order XL., rr. 2, 6, 6a.) The application in the King's Bench Division is to a divisional court; in the Chancery Division to the judge to whom the action is assigned.

CHAP. XVII.

SECT. 3.-Application and Proceedings thereon.

The mode of applying to set aside an award is by Mode of motion, of which notice must have been given to the application. other side (R. S. C. Order LII., rr. 1-3), but not to the arbitrator. (Moseley v. Simpson, 42 L. J., Ch. 739; L. R., 16 Eq. 226.) The notice, which is the ordinary two clear days' notice (Order LII., r. 5), shall state in general terms the grounds of the application, and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. (Order LII., r. 4.) The nonservice of the affidavits with the notice of motion is a mere irregularity which the court may condone. (Re Wyggeston Hospital and Stephenson, 52 L. T. 101; 33 W. R. 551; Hampden v. Wallis, 26 Ch. D. 746; 50 L. T. 515; Petty v. Daniel, 34 Ch. D. 172.)

The application may be to either division of the court. In the King's Bench Division it is to a divisional court; in the Chancery Division to the judge in court.

Where an action is in court the notice of motion and affidavits pro and con. should be entitled in the action. Where there is no action in court, the notice of motion and affidavits need only be entitled in the High Court of Justice, and the division in which the application is made, and "In the matter of an arbitration between A. B. and X. Y." And in such a case, adding the words plaintiff and defendant to the names of the parties in the title of the affidavit does not vitiate the affidavit. (Re Imeson and Horner, 8 Dow. 651.)

Who may

move to set

aside an

It seems that a party in whose favour a mistake has been made cannot avail himself of it to set aside the award. Therefore, where an arbitrator erroneously award. found a plea of set-off in part for the plaintiff and in part for the defendant, instead of wholly for the plaintiff, the court refused to set aside the award at the instance

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