CHAP. III. OF REFERENCES To ARBITRA _TION, &c. quiring payment to him, and who must also produce and show to the party the foregoing documents, and the original power of attorney, (i) and leave with him a copy of the latter (k), and then formal demand of payment or performance must be made by the party so authorized. (k) The next step must be, to make an affidavit of the facts and of all these proceedings, and of the arbitrator's signature to his award, and the time when, and especial care must be taken to verify every enlargement of the time to make the award; also of the execution of the power of attorney, when any part of the proceedings were under the same. (7) Upon such affidavit, and production of the original award, and of the refusal or neglect to comply with the formal request, counsel may be instructed to move for an attachment for disobedience of the rule of Court, by nonperformance of the award. The rule, when for payment of money, is absolute in the first instance, but otherwise is only nisi. The Court will not grant an attachment for non-performance of an award, without personal service, where the party has another remedy, as by action (m). Any alleged corruption in the arbitrator, is no answer to a motion How opposed. for an attachment for nonperformance of an award; (n) for in answer to that proceeding to enforce an award, the party resisting can only object to defects apparent on the face of the award, because the making a motion to enforce an award cannot anticipate extrinsic objections. (o) The proper course therefore is, for the party objecting to an award, on account of extrinsic objections, to make a distinct motion to set the same aside upon an affidavit showing his objection, which we have seen, must in general relate to the corrupt or irregular conduct of the arbitrator. (p) But when the submission to arbitration was by a deceased party, an award therein cannot in general be enforced by attachment against his personal representative. (q) It has been considered that under the terms of the statute 9 & 10 W. 3, when once the submission has been made a rule of one Court, an attachment cannot be moved for in another Court, although one of the causes referred was depending in the latter (r). In some cases, especially when the proceeding is by attach- 2. By action. ment, the opponent would be induced immediately to move to set aside the award; the safe course is, therefore, to wait till the OF REFERENCES TO ARBITRA CHAP. III. time for moving the Court under the statute, has expired, or till after the end of the second term, and then to proceed in an TION, &c. action, because in such action the defendant could not, by plea or otherwise, avail himself of any objection on account of the award having been obtained by corruption or undue means. (r) If the award was to pay or repay a sum of money on demand, there should be a preceding demand, and which must also be stated in an affidavit to hold the party to bail. (s) The rest of the practice in enforcing an award, has been so fully and ably stated by Mr. Tidd, in his Practice, and Mr. Watson, in his Treatise on Arbitration, that it is considered to be unnecessary here to repeat the same. Seventeenthly, Seventeenthly, Although it has been doubted whether Courts of Jurisdiction in Equity have any jurisdiction under the 9 & 10 W. 3, the first equity. (1) section of which speaks of Courts of Record; it seems now to be clearly established, that the act extends to the Court of Chancery, and that an agreement that a submission shall be made a rule of Court, may be given effect to by an order or rule of the Court of Chancery, so as to move that Court to enforce the award, or to set it aside; (u) and it seems that that Court in which the submission is first made a rule, acquires the exclusive jurisdiction. (v) But if the submission has merely provided, that the agreement to refer shall be made a rule of a Court of Law, then a Court of Equity cannot proceed after such rule has been obtained, (w) unless the Court of Law, as sometimes occurs, will alter the terms of their rule and permit a suit in equity. (x) And where, although a bill had been filed to set aside an award before the submission had been made a rule of the Court of King's Bench; it was held that after such rule had been obtained, equity had no jurisdiction, although by the terms of the submission, it might originally have been made a rule of the Court of Chancery; (y) and e converso, on the other hand, when by consent an order has been made in Chancery to refer a suit to arbitration, no other Court has jurisdiction over an award made in pursuance thereof; (z) and in general, an (r) Defendant cannot plead corruption or partiality, 8 East, 344; 5 B. & Cres. 534; Gow's Cases Ni. Pri. 5. (s) Diver v. Hood, 7 Bar. & Cres. 494. (t) See in general Chitty's Eq. Dig. tit. Arbitrator. (u) In matter of Joseph and Webster, 1 Russ. & M. 498, note (a); Dawson v. Sadler, 1 Sim. & Stu. 537; and see 2 Mad. Ch. Pr. 712, 713, accord; Tidd, 9th ed. 821, contra. (v) Dawson v. Sadler, 1 Sim. & Stu. 537. (w) Lord Lonsdale v. Littledale, 2 Ves. J. 451; Davis v. Getty, 1 Sim. & Stu. 411; Gurnnett v. Bannister, 14 Ves. 530; 2 Madd. Rep. 6; 2 Jac & W. 249. (x) Lonsdale v. Littledale, 2 Ves. 453. (y) Davis v. Getty, 1 Sim. & Stu. 411; Dawson v. Sadler, 1 Sim. & Stu. 537. (2) Pitcher v. Rigby, 9 Price, 79. CHAP. III. award in a suit depending in a particular Court, has been considered not within the statute. (a) But nevertheless, a ge- TO ARBITRA neral reference to arbitration, made by parties in a suit then depending in Chancery, may be, and frequently is made an order of a Court of Law; (b) and in general, by reference to arbitration, both at law and in equity, the Court divests itself of all jurisdiction over the facts. (c) It is settled that references, where the submission is to be made a rule of Court, followed up by such a rule, are entirely governed by the statute 9 & 10 W. 3, and which is as imperative upon Courts of Equity as upon Courts of Law, as to the time within which an application to set aside an award must be made; and the statute has transferred the jurisdiction of a Court of Equity in such a case, even of fraud or concealment in one of the parties, altogether to the Court of which the submission has been made a rule of Court; and the parties having selected their own tribunal, and a certain period only being allowed by the statute, they are wholly bound if they suffer that time to elapse, (d) and the statute regulation, as regards time, is as obligatory in equity as at law. (e) OF REFERENCES TION, &C. Of arbitrations tutes. We have in a previous page alluded to some of the statutes Eighteenthly, compulsory on parties to submit to arbitration, or at least afford- under other ing them a right to claim a reference; (f) of this nature is the particular staFriendly Society Act, (g) and the Saving Bank Act. (h) The acts respecting masters and servants in husbandry, or in certain trades, either enabling magistrates to hear complaints for nonpayment of wages, (i) or enabling such masters or workmen to demand and have a reference. (k) The acts relating to Seamen's Wages, (1) and the Salvage Acts, which also afford powers of arbitrating. (m) The consideration of all the powers given by these and other particular acts of the same nature, would extend beyond the subject of this general summary. The acts (a) Lonsdale v. Littledale, 2 Ves. J. 451; 2 Mad. Ch. Pr. 713. (b) Nichols v. Chalie, 14 Ves. 265. (c) Dick v. Milligan, 2 Ves. J. 24. (d) Auriol v. Smith, 1 Turn. & Russ. 124, 5, 6. (e) Godfrey v. Boucher, 3 Vin. Ab. 139, pl. 38, contrato Allardes v. Campbell, Bunb. 265. (ƒ) Ante, 74. (g) 10 G. 4. c. 56, s. 27. (h) 9 G. 4, c. 92, s. 45, Compulsory, and no action lies, Crisp v. Bunbury, 8 Bing. 394. (i) 4 G. 4, c. 34; 10 G. 4, c. 52; Burn J. Servants, xviii; semble, an infant is not within the 3d section of that act, Hawk. P. Cr. chap. 64, sect. 35. (k) 5 G. 4, c. 96, s. 3, Burn J, tit. Servants, xxi. Burn J. (1) Abbott on Shipping; (m) 1 & 2 Geo. 4, c. 75; and see CHAP. III. OF REFERENCES are full and explicit; and when they give a power to demand an arbitration, the provision is construed to be imperative, and to preclude parties from suing in cases within the enactments; for otherwise the spirit of litigation, and the desire to have the matter discussed in a superior tribunal, would render the enactments dead letters. (n) But the Salvage acts have been expressly holden not to take away the common law general right to sue for recompense in those cases. (o) (n) Crisp v. Bunbury, 8 Bing. 394. only be had to a Prize Court, 2 Dougl. 594; 33 Geo. 3, c. 66, s. 42. CHAPTER IV. SUMMARY PROCEEDINGS BEFORE JUSTICES OF THE PEACE DIRECTIONS. CEEDINGS, &c. The subjects of WE are in this Chapter to examine the practical proceedings, CHAP. IV. to obtain a summary conviction and compensation or punish- SUMMARY PROment, before one or more Justices of the Peace, for small Private Injuries, whether to the Person or Personal or Real this Chapter are Property; and it will be found that the rules here collected, the Practical will also in general apply to the practical proceedings to be ob- ceedings for Summary Pro served in the recovery before a Justice, of pecuniary penalties, ries, and PenalPrivate Injuunder the very numerous Penal Statutes, which impose them ties. as measures of police. We are to suppose that an injury has been committed, and Summary prothat the case is either unfit for arbitration, or that ceedings, when any measure expedient. of that nature has failed, and that on account of the smallness |