CHAP. XVIII. Order to pay under 1 & 2 Vict. c. 110, s. 18. The only method which formerly existed of enforcing an award summarily was by punishing a party for not performing it, and this practice was only introduced in the reign of Charles II. At that time the practice arose of making the submission a rule of court. This gave the court jurisdiction to treat a refusal or wilful neglect of a party to perform an award made under such submission as a contempt of the court, and punishable by attachment. This power was confirmed by 9 & 10 Will. 3, c. 15, s. 1, which, after providing that a submission might be made a rule of court, enacted that, "In case of disobedience to such arbitration or umpirage the party neglecting or refusing to perform or execute the same or any part thereof shall be subjected to all the penalties of contemning a rule of court." [Although this statute is repealed by the Arbitration Act, 1889, section 1 of that Act gives to a submission by consent out of court, the effect of an order of court.] For a long time attachment was the only summary proceeding for compelling obedience to an award, whether the award were for the payment of money or for the performance of some other Whenever a submission could be made a rule of court, the performance of the award could be enforced by attachment. But when a submission could not be made a rule of court (as when it was by parol, or by agreement negativing its being so made), an attachment for non-performance could not be granted. But attachment was a remedy against the person only; and previously to the statute 1 & 2 Vict. c. 110 the courts had no power to give a remedy against the property of the defaulting party. (Neale v. Postlethwayte, 10 L. J., Q. B. 134; Doe v. Amey, 8 M. & W. 565.) To remedy this 1 & 2 Vict. c. 110, s. 18, enacted "That all decrees and orders of courts of equity, and all the rules of courts of common law, and all orders of the Lord Chancellor or of the Court of Review in matters of bankruptcy, and all orders of the Lord Chancellor in CHAP. XVIII. matters of lunacy, whereby any sum of money, or any costs, charges, or expenses shall be payable to any person, shall have the effect of judgments in the superior courts of common law, and the persons to whom any such monies, or costs, charges, or expenses, shall be payable, shall be deemed judgment creditors within the meaning of this Act; and all powers hereby given to the judges of the superior courts of common law with respect to matters depending in the same courts shall and may be exercised by the courts of equity with respect to matters therein depending, and by the Lord Chancellor and the Court of Review in matters of bankruptcy, and by the Lord Chancellor in matters of lunacy; and all remedies hereby given to judgment creditors are in like manner given to persons to whom any monies, or costs, charges, or expenses, are by such orders or rules respectively directed to be paid." This power was extended by R. S. C. Order XLII. r. 24, which provides that "every order of the court or a judge in any cause or matter may be enforced against all persons bound thereby in the same manner as a judgment to the same effect." The Act, has, however, been rendered obsolete by the Arbitration Act, 1889, s. 12; though some of the decisions. under it are retained by way of guide to the practice under the later Act. (Ante, p. 294.) seldom resorted to. Proceedings by way of attachment are now seldom Attachment resorted to, to enforce an award, being too indirect a remedy. The more direct, speedy, and inexpensive method of obtaining an order under section 12 of the Arbitration Act, 1889, is usually adopted. It is still necessary, however, to consider the decisions as to attachment, since, there are cases, in which disobedience to the award makes it necessary to resort to this remedy. CHAP. XVIII. In what cases an attachment granted. Discretionary. No attachment unless the award is distinctly imperative. An attachment may be granted for non-payment of costs awarded. (But see Grundy v. Wilson, 7 Taunt. 700.) Where one party has paid the whole of the costs of an award, which were payable partly by the opposite side, to get the award from the arbitrator, the courts may grant an attachment at the instance of the party who has paid the costs against the other party for not contributing his share of such costs. (Hicks v. Richardson, 1 B. & P. 93; Stokes v. Lewis, 2 Smith, 12.) The payment of interest accruing due after the date of the award cannot be enforced by attachment, but only by action. (Churcher v. Stringer, 2 B. & Ad. 777.) Where a party has done all in his power to obey the award, the court will not grant an attachment against him. (Doddington v. Bailward, 7 Scott, 733; 7 Dow. 640.) Nor will they do so if it be doubtful whether the award is a good one (Tattersall v. Parkinson, 2 Ex. 342; 17 L. J., Ex. 208); or if a set-off has arisen since the award (Rees v. Rees, 25 L. J., Q. B. 352); or where there has not been a performance, or tender of performance, of all conditions precedent, or concurrent acts, awarded to be done by the party applying for the attachment. (Standley v. Hemmington, 6 Taunt. 561.) So, an attachment will be refused after a long delay, say, four years, unless such delay is satisfactorily accounted for. (Storey v. Garrey, 8 Dow. 299; but see Baily v. Curling, 20 L. J., Q. B. 235.) It is perfectly discretionary with the courts, in all cases, whether or not they will grant an attachment for the non-performance of an award, or leave the applicant to his remedy by action. (Stork v. De Smeth, Hardw. 106.) An attachment will not be granted unless the award contain a distinct order to do the act, the omission of which forms the ground of the application. (Graham v. D'Arcy, 6 C. B. 537; 18 L. J., C. P. 61.) Therefore, where an arbitrator finds by his award that a certain sum is due from the one party to the other, but CHAP. XVIII. gives no express order for the payment of that sum, an attachment will be refused for non-payment. (Seaward v. Howey, 7 Dow. 318.) Ordering a verdict to be entered for a certain sum, when the arbitrator has no authority to do so, cannot be treated as an order to pay that sum, so as to support an attachment. (Donlan v. Brett, 4 N. & M. 854; 2 A. & E. 344.) award is bad or doubtful. If an award be bad, and the defects are apparent on Nor when the the face of it, the court will not grant an attachment. Even if it be doubtful whether the award be good or not, the court will not go into the question on an application for an attachment, but will leave the party to his action to enforce performance of the award. (Cargey v. Aitcheson, 2 D. & R. 222; Perry v. Nicholson, 1 Burr. 278; Jackson v. Clarke, M'Cl. & Y. 200.) Thus, where the defendant was described by a wrong christian name, in an award directing him to pay a sum of money, the court refused to grant an attachment. (Daries v. Pratt, 16 C. B. 586; Lees v. Hartley, 8 Dow. 883.) And, where the parties agreed to abide by the award made by the "two arbitrators and their umpire," and the award was made by the two arbitrators only, the objection being taken that all three ought to have executed it, the court considered the point too doubtful to grant an attachment. (Hetherington v. Robinson, 4 M. & W. 608; 7 Dow. 192.) An attachment will not be granted for not making a payment on a Sunday. (Hobdell v. Miller, 2 Scott, N. R. 163.) In one case, under peculiar circumstances, the court. made a rule absolute for an attachment for non-payment. of a sum awarded to the wife of one of the parties, although by collusion, payment of the sum had been made to her husband. (Wynne v. Wynne, 3 Scott, N. R.. 442; 1 Dow., N. S. 723.) CHAP. XVIII. No attach contempo raneous proceedings. The court will not grant an attachment pending an application for setting aside the award. (Dalling ment pending v. Matchett, Willes, 215.) And, as the courts will not permit separate contemporaneous proceedings for the same matter, an attachment will not be granted pending an action on the award. (Badley v. Loveday, 1 B. & P. 81.) If the party was not in contempt at the time the action was brought-for example, if no demand was made until after that time-the application will be dismissed with costs. (Baker v. Wells, 9 Dow. 323; Higgins v. Willes, 3 M. & R. 382.) But, if he was in contempt at that time, an attachment may be granted on the terms of discontinuing the action and paying the costs. (Paull v. Paull, 2 Dow. 340.) But both proceedings will not be permitted; and where a party obtained an attachment to enforce an award, and afterwards proceeded by action, the court set aside the attachment upon the terms of the defendant giving a bond to the plaintiff with sureties to the master's satisfaction, and conditioned to the same effect as in the case of a recognizance of bail. (Lonsdale v. Whinnay, 3 Dow. 263.) The courts, however, have granted an attachment pending a foreign attachment in the City of London Court upon the same award. (Coppell v. Smith, 4 T. R. 313, n.) In whose favour an attachment lies. Imprisonment under an attachment is no satisfaction of the award, and the party remains liable to an action upon it, at least, where his refusal to perform the award is wilful. (R. v. Hemsworth, 3 C. B. 745.) An attachment will not be granted in favour of a person not a party to the reference, but to whom money is by the award ordered to be paid. (Re Skeete, 7 Dow. 618; Dunn v. West, 10 C. B. 420; 20 L. J., C. P. 1.) Nor, even on behalf of an executor or administrator of a party who has died after the award was made, and to whom the money awarded was to have been paid (R. v. Maffey, 1 Dow. 538); except, perhaps, where the award directs the |