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Exch. of Pleas, having duly enlarged the time, made and published his award on the 3rd of May, 1841, whereby he ordered that all proceedings in the action for mesne profits should be stayed, each party paying his own costs in the action; and that the defendant should, at the time therein mentioned, pay to the plaintiff the sum of £1850, together with the costs of the reference and award. On the 12th of May, the submission (having an indorsement thereon enlarging the time for making the award until the 1st of November) was made a rule of Court, and the costs were subsequently taxed by the Master at 867. 14s., for which amount he made out an allocatur, and a person was sent to the premises at Caxton, with a power of attorney from the plaintiff, to demand the money. He found the premises in the possession of a daughter-in-law of the plaintiff, who stated that the fatherin-law had left the country, and had assigned all his effects there to her.

On a former day in this term, Byles, for the plaintiff, obtained a rule to shew cause why the defendant should not pay to the plaintiff the sum of 19367. 14s., in pursuance of the said award, rule of Court, and allocatur; and why, in default of payment, execution should not issue against him for that amount: it being also made part of the rule, that service of it upon the daughter-in-law on the premises should be deemed good service.

Kelly and Ogle now shewed cause.-The Court has no power, either at common law or under the stat. 1 & 2 Vict. c. 110, ss. 18, 19, to make an order upon a party to pay a specific sum awarded against him by an arbitrator. Their only power, independently of the statute, is to order him to perform the award generally, and in case of his refusal or neglect, to punish him for his contempt by an attachment. And the only object of the statute was to give to orders and rules of Court an effect beyond that which they had before, viz. the force of judgments, whereon execution

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might issue; but the legislature did not intend to confer Exch. of Pleas, upon the Courts the power of making any new species of rule or order, unknown to the existing law. The observations of Lord Denman, C. J., in Jones v. Williams (a), on the authority of which this rule was obtained, that "there is no difficulty in giving effect to the 1 & 2 Vict. c. 110, s. 19, as to awards, by calling on the delinquent party to shew cause why he should not pay a certain sum of money pursuant to the award;" and that "if that rule be made absolute, an execution may issue for the sum so distinctly specified in the rule," are mere obiter dicta, forming no part of the judgment of the Court. The terms of this submission do not give the Court any unusual powers of enforcing payment.

But secondly, assuming that the Court has power to make such an order, this is an application analogous to that for an attachment, and the affidavit ought to disclose every fact which is necessary to shew that a valid award has been made, and disobeyed. Where the award is made after the time originally specified in the submission, it is necessary, in order to have an attachment, to shew by affidavit that the time was duly enlarged by the arbitrator: Halden v. Glasscock (b), Davis v. Vass (c), Wohlenberg v. Lageman (d): and the same rule ought to be applied here. At all events, the Court will allow the rule to be enlarged for a few days, in order to give the defendant an opportunity of obtaining affidavits and moving to set aside the award.

Byles, in support of the rule, was stopped by the Court.

Lord ABINGER, C. B.-I am of opinion that no sufficient ground has been shewn to prevent us from making this rule absolute. As to the last suggestion, no grounds are laid before us for setting aside the award; if any such grounds existed, the defendant had the opportunity of availing

(a) 11 Ad. & E. 175; 4 P. & D. 217. (b) 5 B. & C. 390; 8 D. & R. 151.

(c) 15 East, 97.

(d) 6 Taunt. 251; 1 Marsh. 579.

Exch. of Pleas, himself of them, by applying to the Court earlier in the

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term, when the rule might have come on together with this, and the whole question between the parties have been settled at once; but the circumstance of his keeping back his objection to the award until the moment when this rule to enforce it is about to be made absolute, shews clearly that his object is merely delay. But the main ground on which the defendant relies is, that the act of parliament, 1 & 2 Vict. c. 110, s. 18, does not authorize the Court to call upon a party, by rule, to pay a specific sum of money pursuant to an award. When the power of arrest on mesne process was abolished by that statute, it became necessary, in lieu of the imprisonment of the persons of debtors, to provide more ready means than had been previously known to the law, of coming at their property; and with that view, the statute made all rules and orders of Court, containing directions to parties to pay money, equivalent to judgments, and like them enforceable by execution. It is said, however, that notwithstanding those provisions, we have no power to make this order, and that our power extends only to the issuing of an attachment against the defendant. But it appears to me, that an attachment against a party for the nonpayment of money presupposes a power in the Court to direct him to pay it, although the practice has been to apply for the attachment in the first instance: it is clear that the Court have no power to issue an attachment at all, unless they have also the power to order the payment of the money; the very word "attachment" implies the existence of such an order. I have no doubt, therefore, that in making this rule absolute, we are acting, not only strictly within the jurisdiction of the Court, but in accordance with the policy of the statute; and I quite agree with the observations of the Lord Chief Justice, in the case which has been referred to. The rule will therefore be absolute, subject to any application which the defendant may hereafter make to set aside

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the award. As to the necessity for an affidavit of the due Exch. of Pleas, enlargement of the time for making the award, it is true that that is required on motion for attachment, but that is because an attachment is a process against the person.

ALDERSON, B.—I am of the same opinion. With respect to the latter objection, it is a sufficient answer to say, that the submission to arbitration, with the enlargement indorsed upon it, has been made a rule of court. Then with respect to the main question, I agree that we ought to make this rule absolute, not, indeed, in the terms in which it is drawn up, but simply that the defendant pay the money mentioned in the award; and the rule will be discharged as to the rest. The rule laid down by Lord Denman, in the case of Jones v. Williams, seems to me a very sound one. The practice in this respect depends upon the general jurisdiction of the Court, and the form in which the Court shall enforce obedience depends upon its discretion. Before the 1 & 2 Vict. c. 110, the practice was for the Court to order the party generally to perform the award. But then it is found that that general order does not specify the amount of the sum to be paid, as mentioned in the award; and consequently, according to the opinion of the Court of Queen's Bench in Jones v. Williams, in which I entirely concur, it is not a rule or order on which execution can issue, within the meaning of the statute. But the substance is the same; for if the Court can order a man to pay the amount of the award, they can order him to pay the specific sum of £1850; if they can order him to perform an award, which directs him to pay £1850, surely they may, in the more direct way, order him to pay that sum. It would be a strange proposition to say, that the Court could punish a person by attachment for disobeying an award to pay money, the amount of which is unknown, but that the moment the amount becomes known, their power is at an end. Then if they have power to order the party to pay the money in question, all the

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Exch. of Pleas, rest follows by force of the statute, which provides that on the order of the Court execution may follow as upon a judgment. We do not order an execution, for no additional powers in this respect are conferred on us by the statute, which we did not possess before. Before the statute, an intermediate order to pay the money would have been nugatory, because it was enforceable only by attachment, and therefore it was never worth while to make such an order; but now that the statute has given an obligatory effect to the intermediate order, it becomes worth the while of the Court to exercise their general jurisdiction to make one. The present is a case in which the Court has the power; and I agree also that it is one in which they ought to exercise it. The party against whom it is made will not be prejudiced, for he has the same right as before to move the Court to set aside the award; and if he succeed in that application, every thing that has been done under it must fall to the ground; the rule and order would then be set aside, any execution issued under it would be set aside also, and the money levied would be restored to the defendant. It is alleged here, that the property has been assigned to another person; if that assignment be a legal and valid one, the assignee can make her claim under an interpleader rule, by which she will be protected from injury; but if it be a merely fraudulent assignment, it will of course be void, and the sum awarded by the arbitrator will be levied on the property of the party, which he has sought by that fraudulent assignment to make away with. This will be doing substantial justice between all parties, and the Court cannot better exercise its discretionary power than in making this rule absolute to the extent I have mentioned.

GURNEY, B., and ROLFE, B., concurred (a).

Rule absolute for payment of the money,

and discharged as to the residue.

(a) See Rickards v. Patterson, ante, 313; Jones v. Williams, ante, 349.