set aside will

not be heard on last term day.

Motion must be made in open Court.

old law terms; and Order LXIV., r. 14, provides “That an application to set an award aside may be made at any time before the last day of the sittings next after such award has been made and published Application to to the parties." An application to set an award aside will not be entertained by the Courts on the last day of the sittings, but it must be made before (Corporation of Huddersfield v. Jacomb, L. R. 10 Ch. 92). The party against whom the award has been made is the one to make the motion, and he can appear by counsel or personally. The motion must be made in open Court, and supported by affidavits verifying the award, and stating the evidence on which the party moving relies, and the facts necessary to sustain the objections which he intends to make to the award (Stubbs v. Boyle, L. R. 2 Q. B. D. 124). In cases within the statute, 9 & 10 Wm. 3, c. 15, s. 2, an application to set aside the award must be made. within the time limited by it, and cannot afterwards be entertained on any account whatever, although the objections to the award were patent on the face of it (Pedley v. Goddard, 7 T. R. 73). The time for setting aside the award begins to run from the day when it is published to the parties, that is, the date when the parties to the reference receive notice from the arbitrator that the award is ready for delivery (MacArthur v. Campbell, 5 B. & Ad. 518). The party in whose favour a mistake has been made by the arbitrator, and who has therefore profited by it, cannot make the application to set the award aside (Moore v. Butlin, 2 N. & P. 436); and the application to set aside an award must be made in the

Time to set

aside begins to run from day that award is published.

Who is the party to apply to set aside the award.

Division of the High Court of which the submission
is made a rule. On a motion to set aside an award
being made, the Courts will give as favourable a con-
struction as possible to the award, and will so construe
it as to prevent the necessity for setting it aside; and
they will not set it aside unless it can be shown to be
void on the grounds on which it is impeached. The
party who opposes the motion to set aside should,
when such motion is made, show cause against it;
and after cause is shown, the Court will either dis-
charge the rule, or make it absolute at their discretion.
In references under the Common Law Procedure
Act, 1854 (17 & 18 Vict. c. 125), "All applications
to set aside any award made on a compulsory reference
under this Act shall and may be made within the
first seven days of the term next following the
publication of the award to the parties, whether made
in vacation or term; and if no such application is
made, or if no rule is granted thereon, or if any rule
granted thereon is afterwards discharged, such award
shall be final between the parties."
If a party

to a reference wishes to set aside the award, we
have seen that he must make the application
within the time limited by the statute (9 & 10 Wm.
3, c. 15, s. 2). In cases not within that statute,
the Courts have a greater latitude as to the time
within which the motion for setting aside the award
may be entertained; but in order to make such
motion successful, there should not be any unneces-
sary delay in making it; and when a delay does take
place, very clear and satisfactory reasons for it should
be given. The Courts will only accept very strong

Courts will

give the award a favourable

construction.

There should

be no delay in making application to set

aside award.

Very strong

evidence for delay in

cation re

quired.

evidence of the cause of and necessity for the delay, and where the arbitrator charged excessive fees and making appli- refused to give up the award until they were paid, the Court did not consider that a sufficient excuse for the delay in making the application (MacArthur v. Campbell, 5 B. & Ad. 518). Neither would the Court grant an application to set aside, where the delay was caused by the illness of the applicant, who was on that account unable to attend to business, as nothing but fraud would give it jurisdiction to interfere with the statute as to the time for making the application (Guadiano v. Brown, 2 Jur. N. S. 358). The Court will not, as a general rule, entertain a second application to set the award aside, on the ground that further objections can be sustained, but will assume that all the objections capable of being made were made on the first application (R. v. Great Western Railway Co., 1 D. & L. 874).

Court will not

hear second application to set aside award.

If one of the parties to the submission take any benefit under the award, such as acceptance of the money awarded (even though that acceptance was under protest), or accepting the costs of the award, it has been held sufficient admission of the validity of the award to debar the party so acquiescing from moving to set it aside (Kennard v. Harris, 2 B. & C. 801). When the Courts exercise their discretion parties to pay and set aside the award, it becomes a question as to payment of the costs of the motion. If the motion to set aside have been made without sufficient grounds, it will be discharged with costs against the party making the application (Snook v. Hellyer, 2 Chit. 43). Where the rule for setting aside an award on a

Who are

costs of motion

to set aside.

cause is discharged, and nothing is said about costs of the application, they will be costs in the cause (Clark v. Owen, 2 H. & W. 324).

CHAPTER XXIX.

ENFORCING THE AWARD.

Where doubts arise as to validity of award, Court

AN award may be enforced by action in cases where By action. the submission is by consent, by parol, by writing not under seal, by deed, by Judge's order, order of Nisi Prius, or rule of Court. An action on the award is the proper remedy in cases where the submission cannot be made a rule of Court, and also appears to be the only one when the reference is under the Lands Clauses Acts, 1845, or the Public Health Act, 1875 (Re Walker, 50 L. T. 207.) Where doubts arise as to the validity of an award, the Courts will not interfere either to enforce it or set it aside, but will leave the parties to their remedy by action (Creswick v. Harrison, 20 L. J. C. P. 56). An action to compel obedience to an award can be maintained, even where the party disobeying it is imprisoned under an attachment for contempt in not performing it, the C. J. Wilde remarking in his judgment, that the party was not, after suffering the punishment, entitled to his discharge, or relieved on account of it, from an action on the award (R. v.

will not

enforce it.

Court will

Hemsworth, 3 C. B. 745). Where two parties agree to recover charges a reference, and after the award is ready one of them

grant action to

paid to arbi

trator by one party.

Where money awarded is not paid, interest runs from day of demand,

By attachment.

No attachment granted to enforce verbal

submission.

pays all the arbitrator's charges, and takes it up, he has
an action against the other party for the recovery of
the half of the money so paid (Marsack v. Webber, 6
H. & N. 489). If money due is awarded, and the
award directs that payment of the amount must be
made at a specified time and place, and it is duly
demanded on the day and not paid, interest on the
amount from the demand being made, together with
the principal, may be recovered in an action on the
award (Pinhorn v. Tuckington, 3 Camp. 468). Where
no particular day is mentioned for the payment of
money interest runs from the day of demand (Johnson
v. Durant, 4 C. & P. 327).

An award can also be summarily enforced by
attachment; for if a party to a reference refuse to
obey an award after the submission has been made
a rule of Court, he is as guilty of contempt as he
would be if he refused to obey a judgment of the
Court. When, therefore, it is possible to make the
submission a rule of Court, an attachment can be
granted to enforce compliance with it. No attach-
ment can be granted in cases where the submission
is verbal, or where, being in writing, it contains words
showing an intention that it should not be made a
rule of Court, the Court has no jurisdiction where
the submission is not made a rule of Court (Owen v.
Hurd, 2 T. R. 643). Though the award be parol,
yet if the submission can be made a rule of Court,
attachment will be granted to compel performance of
it (Rawling v. Wood, Barnes, 54). An application