CHAPTER XVIII.

ENFORCING AN AWARD.

SECT. 1.-By Summons under Arbitration Act, 1889.

"AN award on a submission may, by leave of the court CHAP. XVIII. or a judge, be enforced in the same manner as a judg- Enforced as a ment or order to the same effect." (Arbitration Act, judgment. 1889, s. 12.)

This applies only to submissions in writing out of court; but by section 16 of the Act the court or a judge shall, as to references under order of the court or a judge, have all the powers by the Act conferred on the court or a judge as to references out of court.

The application to enforce the award may be made, and leave given, on such terms as may be just, to enforce the award at any time, though the time for moving to set it aside has not elapsed. (R. S. C. Order XLII. r. 31A.)

Application

before time to

set aside

expired.

land.

Although the repealed section 16 of the C. L. P. Act, Recovery of 1854, is not re-enacted in terms, an order for the delivery of possession of land may be enforced under this section. (And see R. S. C. Order XLII. r. 5.)

An application for leave to enforce an award under Application. this section is made by an originating summons before a master in chambers. (R. S. C. Order LIV. r. 4F.)

The summons should be intituled "In the matter of an arbitration between A. B. & C. D., And in the matter of the Arbitration Act, 1889." It should ask for leave to enforce the award dated, &c., in the above arbitration, in the same manner as a judgment or order to the

CHAP. XVIII. same effect.

Evidence in support.

Service of summons.

Matters which

may be relied on in opposition to the application.

Former practice.

(Ex parte Caucasian Trading Corporation, 74 L. T. 47; [1896] 1 Q. B. 368.)

The applicant must produce before the master the original award (or a duplicate thereof), together with a copy, both to be verified by affidavit intituled like the summons. (Practice Master's Rules 20, Annual Practice [1903] 1024; see as to affidavit, ante, p. 290.)

The respondent shall not be required to enter an appearance (R. S. C. Order LIV. r. 4F), but the summons must be served two clear days before the return thereof. (Order LIV. r. 4E.) The service should be personal unless otherwise ordered.

In opposition to the application, the respondent may show such matters, affecting the validity of the award, as could be used in answer to an application for an attachment. For example, it may be shown that the award is on the face of it ultra vires in whole or in part and to that extent invalid. (Re Stone and Hastie [1903] 2 K. B. 463.) But it seems doubtful whether he would be allowed to go into matters dehors the award itself. The proper course in such a case is to move to remit or set aside the award. (Davies v. Pratt, 25 L. J., C. P. 71.) Where the respondent is taking steps to set aside the award the summons will be ordered to stand over pending the result of such steps.

In the former practice which obtained as to applications under the statute 1 & 2 Vict. c. 110 (post, p. 298), it was almost a sacred rule that, on a motion for a rule to pay money pursuant to an award, no objection could be raised except for matters apparent on the face of the award. (Woollen v. Bradford, 33 L. J., Q. B. 129, per Crompton, J.) In answer to the motion, the respondent party could rely on any defect apparent upon the face of the award, even although the time limited for setting it aside had elapsed. (Pedley v. Goddard, 7 T. R. 73; Randall v. Randall, 7 East, 81.) But matters extrinsic,

which should have been made the subject of a motion to CHAP. XVIII. set aside the award, such as alleged corruption or misconduct of the arbitrator, could not be set up in answer to the application (Brazier v. Bryant, 3 Bing. 167; Holland v. Brooks, 6 T. R. 161; McArthur v. Campbell, 2 A. & E. 52; 4 N. & M. 208), unless to show that no award had been made, or that two arbitrators had not executed it at the same time (Wright v. Graham, 3 Ex. 131; 18 L. J., Ex. 29), or that the arbitrator was acting without authority. (Great Western Rail. Co. v. Waterford and Limerick Rail. Co., 50 L. J., Ch. 513; L. R. 17 Ch. D. 493.) It was even held that the pleadings in a cause referred could not be looked to, though brought before the court by an affidavit identifying them, so as to show the award defective on its face. (Davies v. Pratt, 25 L. J., C. P. 71; 71 C. B. 183.) The court would not depart from this rule although the party in whose favour the award had been made, had, subsequently to the award, been committed to take his trial for perjury during the proceedings. (Woollen v. Bradford, 33 L. J., Q. B. 129.)

A cross demand, being a matter within the submission, but not brought before the arbitrator, could not be used as an answer to the motion. (Smith v. Johnson, 15 East, 213.) Under the former practice an application for an order in the nature of a judgment to enforce payment of money in pursuance of an award, would in general only be granted when an attachment would have been granted for its non-payment. (Creswick v. Harrison, 20 L. J., C. P. 56; 1 L., M. & P. 721; Laing v. Todd, 13 C. B. 276; Tattersall v. Parkinson, 17 L. J., Ex. 208; 2 Ex. 342; Graham v. D'Arcy, 18 L. J., C. P. 61.) If there were any doubt as to the validity of the award on the face of it, it would not be granted. (Dickenson v. Allsop, 13 M. & W. 722; Mackenzie v. Sligo and Shannon Rail. Co., 19 L. J., C. P. 142.) Nor would it be granted, if the party applying were at the same time endeavouring

In what cases order formerly granted.

CHAP. XVIII. to obtain the benefit of the award by any other legal

Award containing no direction to

pay.

Order drawn up.

Enforced as a judgment.

proceedings. If a person ordered to pay money under an award satisfied the court that he had a bonâ fide claim for a cross demand larger than the sum awarded, which he might reasonably hope to support by way of set-off or counterclaim to an action on the award, the court would not make an order against him to pay the sum awarded. (Swayne v. White, 31 L. J., Q. B. 260.) And where by an award the plaintiff was to pay the costs of a chancery suit between himself and the defendant, which costs had not yet been ascertained, a rule was refused to compel the defendant to pay other sums due under the award. (Lambe v. Jones, 9 C. B., N. S. 478; 9 W. R. 202.) The solicitor of the successful party, claiming a lien on the sum awarded, could not have an order in his own name, but only in that of his client, unless there were collusion between the parties to defraud him of his lien. (Dunn v. West, 20 L. J., C. P. 1; 10 C. B. 420; Brearey v. Kemp, 24 L. J., Q. B. 310.)

An order to pay pursuant to an award will be made though there be no direction in the award to pay; the practice in this respect differing from that of attachments. (Baker v. Cotterill, 7 D. & L. 20; 18 L. J., Q. B. 345; Bowen v. Bowen, 31 L. J., Q. B. 193.)

The order is made in the terms of the summons, and must be drawn up. The order should include the costs. of the application for leave to enforce.

When the order is made and drawn up, it will be enforced in the same manner as a judgment or order to the same effect. For the manner in which judgments are enforced see R. S. C. Order XLII. and Table of Official Requirements on Issuing Execution, No. 24a. (Annual Practice [1903] p. 1051.) The order, where the award is for a money payment, is an order that a writ of fi. fa. may issue. (Ex parte Caucasian Trading Corporation, 74 L. T. 47; [1896] 1 Q. B. 368.) The writ of

execution issues immediately, except when a time is fixed CHAP. XVIII. for payment. (R. S. C. Order XLII. r. 17.) No demand

is necessary or service of the order. If a time is fixed

for payment the order will be served as directed in R. S. C. Order XLI. r. 5.

execution.

To obtain the issue of a writ of execution, produce the Issuing original award, also file a duplicate thereof (no fee), at the Writ, &c. Department of the Central Office, together with the order for leave to enforce it. A reference number is given, as for a commencement of proceedings, and the award will be marked with a seal to indicate that execution has been issued on it. All subsequent proceedings. should bear the reference number. (Practice Master's Rules 20, Annual Practice [1903] 1024.)

is a civil

The process issued under an application to enforce an Execution award is "a civil proceeding" within the Bankruptcy Act, under award 1890, s. 1, and, therefore, a proper basis for bankruptcy proceeding. proceedings. (Ex parte Caucasian Trading Corporation [1896] 1 Q. B. 368.)

An award under the L. C. C. Act, 1845 (Re Newbold Award under compensation and Metropolitan Rail. Co., 14 C. B., N. S. 405), or Acts. under the Public Health Act, 1875 (Re Walker, 50 L. T. 207), cannot be enforced under section 12 of the Arbitration Act, 1889, but only by action, when the basis of the assessment or the title to the compensation is in dispute. Nor can an award under section 150 of the Public Health Act, 1875, be enforced under this section. (Re Willesden Local Board and Wright [1896] 2 Q. B. 412; 75 L. T. 13.)

SECT. 2.-By Attachment.

attachment.

To appreciate the rules upon which the courts act Origin of in granting an attachment to enforce an award, it is necessary to consider the gradual development of the jurisdiction.