to have the " submission" made a rule of court." But where the submission has been made a rule of court, it is not necessary there should be another application to have the award made a rule of court, in order to ground an attachment: that will be granted without such application."

The party in whose favour an award is made, when/ the submission is according to the statute, may have his remedy by attachment, though he may have obtained judgment in an action on the bond, or on the award; for he may perhaps think an attachment a more expeditious and effectual process than suing out execution on the judgment."

And though the defendant may be in custody on an attachment, the court will not stay proceedings in an action of debt on the bond, or on the award, because if the defendant die in execution on the attachment that execution is at an end, and cannot be revived against his heirs or executors; for the statute says, that the attachment shall be prosecuted as in the case of a contempt in other cases: and a contempt dies with the person, and cannot be prosecuted against his representatives;' but if he die in execution on a judgment, the plaintiff may still have an execution on his goods. But, if the defendant be taken in execution on the judgment, the attachment will be discharged. And if

7 Vid. Harrison v. Grundy, 2 Str. 1178. Anon. 2 Barnard. B. R. 163. [3 East, 603. Pedley v. Westmacot, contra.]

8 Salk. 71. [8 T. R. 87. Jenkins v. Law, 5 East, 189. Evans v. Thomson.]

91 Salk. 73. 10 Mod. 333.

1 Determined by the Judges in Webster v. Bishop, Prec. in Ch. 223. 2 Vern. 444.

2 Paterson v. Gross, 2 Barnard. B. R. 227.

3 Vid. Richardson v. Chancey, 1 Barnard. 386. cited B. R. H. 107.

an action be brought before an application is made for an attachment, it will be refused, during the pendency of the action, unless some very particular reason appear to the court for granting it.-This case was compared to the case of the several remedies which are allowed on a mortgage, a bill for foreclosure, an action on the bond, and an ejectment to obtain the possession, which are allowed to be all used at once. But Lord Hardwicke answered, that these several remedies were for different purposes, and remedies to which the party is intitled by the course of law, without the leave of the court; but the two remedies in the present case had but one object, that of enforcing obedience to the award, and the one was by the course of law, while the other depended on the discretion of the court. In a late case, where an action had been brought on an award in the King's Bench, and the plaintiff applied to the court of common pleas for an attachment, offering to discontinue his action, the court refused it, on the ground that he had made his election."

If the time limited for making the award expire without any award made, there must be a second application for making the submission to a second arbitrator a rule of court, or else the court cannot grant an attachment for nonperformance of the second arbitrator's award. And the submission must be made by the parties on the record: therefore, an attachment

4 Stock and Huggins v. De Smith, B. R. H. 106. vid. Hutchins v. Hutchins, Andr. 297. Anon. id. 299.

5 Badley v. Loveday, Puller

and Bosanquet's Rep. in Com. Pleas, 81.

6 Owen v. Hurd. 2 Term Rep. 643, 4.

was refused, where it appeared that a submission to an award between A. and B. had been made a rule of court; but no award having been made within the time, the dispute had been referred to a second arbitrator, by B. and C. who were the real parties, without an application to make this submission a rule of court.-And the court would not go into the merits, though the defendant offered to waive the objection, because they had no jurisdiction."

When the submission is made a rule of court according to the statute, the affidavits, to ground an attachment, need not be intitled in any cause, for till the rule for the attachment is granted, there is no proceeding in court.-But the affidavits in answer must be intitled.

8

1

In both forms of submission, it is discretionary in. the court, to enforce the award by, attachment or not. -The plaintiff had brought an action against the defendant for diverting a water-course; the matter was referred to arbitrators, who awarded that the defendant should fill up a canal, restore the stream to its former course, and do several other matters relating to the water-works. The plaintiff afterwards applied to the court for an attachment for nonperformance of the award, and read several affidavits to found his application. The defendant in answer read several affidavits to prove his compliance with the directions of the award. The court therefore refused an attachment, on account of the contrariety of evidence, and left the plaintiff to his remedy by action."

7 Owen v. Hurd, 2 Term Rep. Rep. 601. 643.

9 Sir Thomas Hales v. Taylor, Bevan v. Bevan, 3 Term 1 Str. 695.

They may also refuse to enforce an award by attachment, when it appears to be a hard case upon the defendant, though they cannot for that reason set the award aside.1

An attachment for nonperformance of an award is only in the nature of a civil execution, and therefore a party cannot be arrested on it, on a Sunday.2

When the award is for the payment of money, the only remedies to enforce performance are those which have hitherto been considered.3-But when it is for the performance of any collateral act, it may sometimes be enforced by a bill in equity, which will decree a specific performance.

When the award is made in consequence of a reference by order of a court of equity, it seems to be a reasonable conclusion, from the tenor of all the cases on that subject, that a bill will generally lie for a spe cific performance: but when the submission is merely voluntary, without the interposition of a court of equity, such a bill will not lie, unless there has been some acquiescence in the award by the parties to the submission, or an agreement afterwards to have it executed.*

But if, in the case of such a submission, the plaintiff, who seeks by his bill to enforce the performance on the part of the defendant, has himself performed his part, a court of equity will decree a performance by

1 Vid. B. R. H. 106, and 1 Bur. 278.

21 Term Rep. 266, 1 Atk. 58. to be law.

33 P. Wm. 189, 190.

4 Dict. per Lord Hardwicke. I' Atk. 74. (62) Bishop v. Webdenies ster, Abr. Eq. Ca. 51. Vid. 2 Rep. in Ch. 18 fo, ed. Semb. contra Id. 16.

the defendant, even where the defendant shews that the plaintiff has put the submission bond in suit in a court of law; unless the award order something which it is against the constant course of a court of equity to enforce. Thus, where, among other things, it was charged by the bill that the father of the plaintiff and defendant was seised to him and his heirs male with the fee expectant of several lands in Henfield, and the plaintiff conceiving he had been seised in fee of the lands in Henfield, conveyed the same to the defendant and the heirs male of his body, leaving the fee in himself; that differences arising about the estate tail, Mr. Justice Croke, who had been chosen arbitrator between the plaintiff and the defendant, had awarded that the defendant should enjoy a former estate tail settled by their father, on him and his heirs male, and that the plaintiff should confirm the said estate tail at the charge of the defendant, and that the defendant should do no act to bar or discontinue the said estate tail, or the remainder of the plaintiff, without the consent of the latter, except it were for a jointure for his wife; the Lord Chancellor, though he held that the defendant should answer as to other parts of the award, declared that as it was absolutely against the constant course of the court to decree a perpetuity, or give any relief in that case, he would allow the defendant's demurrer as to this part of the bill."

4 Poole v. Pipe, 18 Car. 2. pr. Hyde Chancellor. S Rep. in

Chan. 20.

5 Bishop v. Bishop, 1 Rep. in Chanc.