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money to be paid to the party or his executors. (Rogers CHAP. XVIII. v. Stanton, 7 Taunt. 576.)

An attachment will not be granted against a peer Who liable to (Walker v. Earl Grosvenor, 7 T. R. 171), or a member of be attached. the House of Commons (Catmur v. Knatchbull, ib. 448); nor against the executor or administrator of the party by whom the money was to be paid or the act done. (Newton v. Walker, Willes, 315; and see Lewin v. Holbrook, 11 M. & W. 110.) But, where an executor or administrator submits disputes in that character to arbitration, he will be liable to an attachment for nonperformance of the award. (Spivy v. Webster, 2 Dow. 46; Re Joseph and Webster, 1 R. & M. 496.) The court will not grant an attachment against a party to an action which was referred without his consent, and who did not authorize the action or the reference, and had no notice of it until after the award. (Robertson v. Hatton, 26 L. J., Ex. 293.) Nor would an attachment formerly lie against a corporation, or against its individual members, Corporation. for the non-performance of an award. (Guilford v. Mills, 2 Keb. 1; Mackenzie v. Sligo and Shannon Rail. Co., 9 C. B. 250; 19 L. J., C. P. 142; London v. Lynn, 1 W. Bl. 205; but now see R. S. C. Order XLII. r. 31.) Where a public company was authorized by statute to sue and be sued in the name of their treasurer, who was not to be liable in his person or goods by reason of his being defendant, the treasurer, being party to an action which was referred, was directed by the award to pay a sum of money, the court directed a mandamus to the treasurer and directors of the company, to pay the money so awarded. (R. v. St. Katharine Dock Co., 4 B. & Ad. 360.) It was also held, in the same case, that as the defendant was not rendered personally liable by the Act of Parliament, an attachment could not issue against him for non-payment of the money awarded. (Corpe v. Glyn, 3 B. & Ad. 801.) Where a feme sole, having agreed to a reference, was

CHAP. XVIII. awarded to deliver up two notes and pay a sum of money, and having married, and the husband refusing to pay, it was doubted if the court could grant an attachment against both or either of them. (Anon., 1 Cromp. 270, 3rd ed.) But an attachment will be granted against one of several of the parties against whom the award is made (Richmond v. Parkinson, 3 Dow. 703); or against a party residing out of the jurisdiction of the court. (Hopcraft v. Fermor, 1 Bing.

Steps preliminary to attachment.

Personal service of award, &c., necessary.

378; 8 Moore, 424.)

Proceedings by attachment, being by way of punishment for contempt of the order of the court, the applicant, before going to the court, must be prepared to show that the delinquent party has wilfully refused to obey the award with notice of his obligation. Therefore a copywhich must be a correct one-of the award, must be personally served upon the party who has to perform the award. (Thomas v. Rawlings, 28 L. J., Ex. 347.) Where the matter to be performed is the payment of costs which have been taxed, a copy of the master's allocatur must be served at the same time. (Bass v. Maitland, 8 Moore, 44.) When the demand of performance of the award is made by an agent, a copy of the power of attorney must also be served. Tendering the documents, and leaving them with the party, is sufficient service, though he refuse to take them up. (Ellis v. Giles, 5 Dow. 255.) He must also, at the time of service of the copies, be shown the originals, in such a way that he can read the contents, though they need not be placed in his hands (Calvert v. Redfearn, 2 Dow. 505) ; and this whether a sight of them be demanded or not. (2 Lush's Pr. 1065.) Serving a copy of an award one day, and showing the original two days after, when the demand was made for performance, has been held insufficient. (Lloyd v. Harris, 8 C. B. 63; 18 L. J., C. P. 346.) Where the arbitrators have enlarged the original time.

given them for making their award, a notice of such CHAP. XVIII. fact, and that the award was made within the enlarged time, should also be given to the party who has to perform the award. (Davis v. Vass, 15 East, 97; Doddington v. Bailward, 7 Dow. 640; 7 Scott, 733.) Service of the original submission is not necessary. (Greenwood v. Dyer, 5 Dow. 255.)

sonal service

No order for attachment will in general be made When perwithout personal service, in any case where the party dispensed applying has another remedy, and this although the with. other party purposely avoid the service. (Richmond v. Parkinson, 3 Dow. 703.) But where it appeared that the party had personal knowledge of the award, from a former service of the same award, the Court of Queen's Bench granted an attachment. (Re Bower, 1 B. & C. 264.) But personal service can only be dispensed with when it appears that the party is evading service. (Thomas v. Rawlings, 28 L. J., Ex. 347.) Service on his solicitor is not sufficient without showing that every effort had been made to effect personal service. (Erans v. Prosser, 34 L. J., Q. B. 256.) The court will not infer personal service to bring the party into contempt; thus, where it appeared that the service was made at the defendant's house, and the servant with the rule and award went upstairs, and returned with an answer that the defendant's attorney would be there on the following day, and would give an answer, it also appeared that the defendant was confined to his bed with the gout, the court refused an attachment, observing that they could not infer from these circumstances that the rule and award had come to the defendant's hands. (Brander v. Penleaze, 5 Taunt. 813.) If an award be against two, and one of them be personally served, but a personal service on the other be found impracticable, the court will make an order against the one served. (Richmond v. Parkinson, 3 Dow. 703.)

CHAP. XVIII.

Oral demand of perform.

ance necessary.

Demand by agent or

attorney.

To obtain an order for an attachment the person in whose favour the award is made should, at or after the time of serving the copies of the award and other documents as above mentioned, make an express oral demand of performance of the award. (Lloyd v. Harris, 7 D. & L. 118; 18 L. J., C. P. 346; Swinfen v. Swinfen, 25 L. J., C. P. 303; 18 C. B. 485.) The fact that a particular time and place are fixed by the award for the performance does not dispense with the necessity of a personal demand. (Brandon v. Brandon, 1 B. & P. 394.) But it is not necessary the demand should be at the time fixed for performance. (Re Craike, 7 Dow. 603.) On the other hand it cannot be made until the time has fully expired. And, where a deed to be prepared by the one party, is to be executed by the other, on a certain day, it must be tendered on that day. (Doe v. Howell, 5 Ex. 299; 19 L. J., Ex. 232.) A demand made by one of several plaintiffs, of money payable under an award, is sufficient. (Drew v. Woolcock, 24 L. J., Q. B. 22; Baily v. Curling, 20 L. J., Q. B. 235.) But, where an award ordered a bond to be delivered to three plaintiffs, a demand by the three, or under a power of attorney from all, was held necessary. (Sykes v. Haigh, 4 Dow. 114.) It has been held that a personal demand of money payable under an award, with a view to a proceeding on a rule of court, may be dispensed with where the party is evidently keeping out of the way to avoid the demand. (Smith v. Troup, 7 C. B. 757; 18 L. J., C. P. 209.)

When it is impossible or inconvenient for the party to make the demand personally, he may depute his agent, duly authorized by a power of attorney, to do so. A mere parol authority to demand performance of the award is not sufficient. It is also necessary that a copy of the power of attorney be left with the party upon whom the demand is made. (Laugher v. Laugher, 1 Dow. 284; Ex parte Fortescue, 2 Dow. 448; King v. Packwood, 2

Dow. 570; Hartley v. Barlow, 1 Chitt. 229.) Where CHAP. XVIII. costs are awarded, a demand by the solicitor of the party is by virtue of his character sufficient, without a power of attorney. (Inman v. Hill, 4 M. & W. 7; Mason v. Whitehouse, 4 Bing. N. C. 692.) So, a solicitor may demand a sum expressly awarded to be paid to the plaintiff or his solicitor. (Hare v. Fleay, 20 L. J., C. P. 249.) A power of attorney is not necessary to enable an agent to demand the execution of a deed directed by an award. (Kenyon v. Grayson, 2 Smith, 61; Tebbutt v. Ambler, 2 Dow., N. S. 677.)

Demand must

be of the precise matter awarded, or

of so much

The precise thing or sum awarded must be demanded, otherwise there can be no attachment for refusal. (Strutt v. Rogers, 7 Taunt. 214.) If part of the award is void, the demand should be confined accordingly. as is well Thus, where two sums are directed to be paid, one of awarded. which the arbitrator has no power to award, if both sums are demanded an order will not be made for either, but, if the demand be for the sum only which is well awarded, the court will grant an attachment for that sum. (Poyner v. Hatton, 7 M. & W. 211; Re Cardigan and Henderson, 22 L. J., Q. B. 83; Whitehead v. Firth, 12 East, 165; Tattersall v. Parkinson, 2 Ex. 342; 17 L. J., Ex. 208.) Where an award, upon a submission of all matters in difference between partners, directed the delivery up of a particular box, which was a matter not specifically referred to the arbitrator, and which had been parted with before the date of the submission, it was held that an attachment could not be granted for non-performance of that part of the award. (Smith v. Reeves, 2 H. & W. 306.)

Where an award directed that the plaintiff should, on a given day, deliver up to the defendant a warrant for a hogshead of port wine lying in the London Docks, describing it by its number and marks, and the demand. required the plaintiff to deliver up one hogshead of port

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