Knight v. Carey — 1 Cow. 39

Majority

p. 39

In the matter of Knight against Carey and Carey,

Headnote

A copy of application ys made to mane a submis-ion ^ruleoicourK need not be for an "auacbme“h f°r nf performing the award, will not be granted at the time of making the submission a eSpeciaiiy where there has keeB 310 demand of performance.

Application was made to make an agreement, to submit to the award of arbitrators, a rule of this Court; and that an attachment issue against Carey Carey, or one of ^ a y . . them, for disobedience thereto. This application was grounded on the bond of submission, with the agreement and award, which were produced, and attached to the usual affidavit proving their due execution.^[1] Notice of the application had been served on Carey <V Carey, but no other pa- ° J A pers ; and performance of the award had not been demanj i ue "

It was objected that no rule could be taken against the Careys, because they had not been served with a copy of the affidavit and other papers ; without which, a party pan nevr r ’ X r er be prepared to impeach an award ;^[2] and that, at any

p. 40

rate, the statute, (Sess. 12, ch. 20, 1 R. L. 125,) which authorizes making the agreement a rule of Court, does not contemplate making the submission, &c. a rule of Court, an(l granting a rule for an attachment at the same time.^[3]

The Court disregarded the first objection, and ordered, the agreement to be made a rule of Court ;^[1] but they refused the rule for an attachment.^[2] They remarked that here had been no default; performance of the award never having been demanded.

Rule accordingly.

(d) (d) ■ (d) Vid. the form of this rule, Caldwell on Arlriir. 477, Am. ed. But the rule there is entitled, which appears to me wrong. Quere, and vid. Se-van v. Sevan, 3 T. R. 601.

(e) (e) After making the agreement a rule of Court, in order to obtain an attachment, the party must be served with the rule. He is also entitled to a notice of the award, and a demand of performance. The authorities on" this subj. ct, and the manner of proceeding herein, and the practical forms in use to ground an attachment, will be found in Tidds’ Prac. 760, 61, and Tidd's Appendix, adapted to this Court by Mr. Caines, 194, 5. (Vid. also Standley v. Hemmington, 6 Taunt, 561, and Forest's Exch. Rep. 82,83.) The rule for an attachment is never absolute in the first instance. (Chanter v. Driver, 12 Mod. 317. Chaunt v. Smart, 1 Bos. & Pull. 477 ; and vid. Gifford v. Gifford, Forest’s Exch. Rep. 80.)