SWINNERTON. inaccurate, as had been more than once observed (a), but 1846. it was impossible not to see that it was the intention of HEming v. the act that the award should be set aside only by that court of which the submission had been made a rule. That there was a period when that was doubted (b): but the point had come before Lord Eldon several times, and had ultimately been decided by him upon the construction of the statute. The notion, therefore, that had once prevailed that the jurisdiction of the Court was not barred by a reference under the statute, had long since been determined to be incorrect. But then it was said that the agreement for the reference being that the submission should be made a rule, not of a court of common law, but of the Court of Chancery, the plaintiff was at liberty to apply to the Court in a summary way under the statute, or to file a billthat a party dissatisfied with the award had those two courses. It might formerly have been thought so (c). But it was obvious that the practice of the Court with reference to awards under the powers of the statute had undergone a change. It was now clear that the jurisdiction was altogether excluded where the submission was to be made a rule of a court of common law; and it was more consistent with principle to hold that it was equally excluded where it was to be made a rule of this Court, unless exercised in the manner prescribed-pointed out by the statute. The statute provided the remedy for setting aside an award, which was made under it. The complaint must be made in the court of which the submission was made a rule, and if the submission was made a rule of the Court of Chancery, the complaint must not be by bill. At all events he should so hold in a case like the present, in which all the questions raised might as conveniently and effectually have (a) Lord Eldon said, 14 Ves. 533, that this part of the act of parliament is expressed in very singular terms. (b) See before, pages 394-398, the old doctrine that the jurisdiction of courts of equity was not barred by a reference under the statute. (c) See before, pages 406-408, cases in which the submission having been made a rule of the Court of Chancery a bill has been filed to set aside the award. 1846. HEMING V. been discussed, if the plaintiff, instead of filing a bill, had made the submission a rule of the Court according to the SWINNERTON. articles of agreement, and then applied to set aside the award. Whether a case might ever arise of such a nature, that a bill would not be an improper mode of proceeding, need not now be considered; it was enough that the present was not that case. The decision of the Vice-Chancellor overruling the demurrer must be reversed and the demurrer must be allowed. Lord Montgomery v. Buckley. Jodrell MSS.* Question whether new matter dis covered will cree upon a bill of review. Plea of an award. Lord Chancellor [Hardwicke]-I will not say that in no case whatever new matter discovered after the award will not affect it. But I do not know any case where it has been allowed. An award differs from a decree in this respect. A decree is compulsory-the parties cannot bring their cause on or delay it as they please before a court. But an affect an award award is the judgment of judges of the parties own choosing, as it will a de-, and they need not submit till fully approved of the merits of their case, and if they do, it is their own fault. But justice in courts must be done in its course, and neither party can prevent it. It seems therefore of dangerous consequence to say, in general, that new matter discovered will affect an award, as it will do a decree upon a bill of review. I will not therefore determine this general question; for there is no occasion, it appearing that the papers relied on were known at the time when the award was made. Plea allowed.-Lord Montgomery v. Buckley, L. C. March, 1745. * See Lord Campbell's Lives of the Chancellors, Vol. V. page 50. Crawshay v. Collins. Practice, which formerly prevailed, of filing exceptions to awards. Lord Eldon.-A reference to an arbitrator is voluntary. The order for it is by consent. It divests the Court of jurisdiction, except in certain events. The error of the arbitrator is not the error of the Master, the officer of the Court, which the Court is bound to correct. The arbitrator is more like the Court than like the Master. It must be admitted that the error of an arbitrator was formerly dealt with as if it was the error of a Master. Whatever may have been said to the contrary, it is plain that in some cases exceptions once lay to awards. In those cases orders to confirm awards were as necessary as to confirm reports. The clause formerly common in orders of reference that neither party should take exceptions, (the validity of which clause was however doubted) is a sufficient proof that But the 1846. formerly exceptions to awards were not unusual. The Court does not look SWINNERTON. See also Crawshay v. Collins, 3 Swanst. 90, and 1 Wils. 31. Nichols v. the author's Awards under the statute may mistake of the arbitrators. Lord Eldon.-There is one case in which the Courts have not considered themselves strictly bound by the language of the statute. By the first section of the act the process of the Court, of which the submission is made a rule, is not to be stopped, except for misbehaviour of the arbitrators, and the award was procured by corruption or other undue means. By the 2nd be set aside for section any arbitration procured by corruption or undue means may be set aside, so as complaint of such corruption or undue practice be made in a specified time. The act is silent as to mistake or error of the arbitrators, and yet it is now settled that an award may be set aside for mistake or error if admitted by the arbitrators, provided the application for setting aside the award be made in due time.-Nichols v. Chalie, L. C. December, 1807. See also Nichols v. Chalie, 14 Ves. 265. courts of common law to entertain applications to set aside awards There are numerous instances in which applications to set Practice of aside awards made rules of Court under the statute, have been entertained by Courts of common law upon other grounds besides corruption, undue practice, and mistake-upon grounds similar to those upon which applications to set aside awards in actions under an order at Nisi Prius or a judge's order, are entertained. The writer is not aware of any reported case in which an application to set aside an award made a rule of the made rules of Court under the statute upon grounds, similar to those upon which applications to set aside awards in actions under an order at Nisi Prius, or a judge's order are entertainedseems to be of recent growth. 1846. HEMING V. Court of Chancery under the statute has been entertained upon any grounds except those mentioned in the statute, or SWINNERTON. the ground of mistake, either manifest upon the award, or acknowledged by the arbitrator. This practice of the Courts of common law seems to be of recent growth. For many years after the statute was passed those Courts would entertain no application to set aside an award under its powers except upon the specified grounds. In Anderson v. Coxeter, 1 Strange, 301, the Court of King's Bench seems to have been unanimous in saying nothing was a ground within the statute for it to set aside an award but manifest corruption in the arbitrators: that the Court would not unravel the matter and examine into the justice and reasonableness of what is awarded. In Hutchins v. Hutchins, Andrews, 297, the Court of King's Bench said an award could not be set aside unless it were for fraud or corruption in the arbitrators, because to those cases only the statute extended. The motion was to set aside an award, because it appeared on the face of it not to be final or mutual, and for other defects appearing upon the awards. Chief Justice Lee said he remembered this distinction to be made by Mr. Justice Powell,— that the Court would not set aside an award for defects appearing upon the face of it, but that was a good reason against granting an attachment for refusing to perform it. Dyer v. Where award Question as to Sir John Leach.-Where an agreement of reference takes place out of Court, and there is no clause that the submission shall be made a rule of Court, the award not being under the statute, fraud of the parties interested in the award, or misconduct of the arbitrators making it, cannot be reached at law. You cannot plead such fraud or misconduct to an action on the award. Neither can you in an action on the award go into evidence to prove such fraud or misconduct.-Dyer v. Dawson, V. C. April, 1822. In Haggett v. Welsh, MS. Cases; S. C. 1 Sim. 134, Sir performance of Anthony Hart said, that the performance of an award, in puran award, in pursuance of suance of an order of the Court in a cause there depending, may an order of the be enforced by the Court without the award itself being made an Court in a cause there dependorder of the Court. In Ormond v. Kynnersley, 2 Sim. & Stu. ing, being en- 15, there was an award under an order in the cause that a forced by the Court without certain sum should be paid by the defendant to the plaintiffs; and the award it- a motion was made on the part of the plaintiffs that the award, if self being made an order of the necessary, might be made a rule of Court, or if not necessary, then that the defendant might be ordered to pay the sum Court. 1846. HEMING V. awarded. The registrar being consulted by the Court as to the necessity of having the award made a rule of Court, seemed to consider that it ought to be so, as the Court would not otherwise SWINNERTON. have any record of it. The motion was ordered to stand over that search might be made for authorities. On a subsequent day Sibley v. Saffel before Lord Eldon, March 1812, and March, 1814 was mentioned, in which the Court had enforced an award, made on an order taken by consent (in a cause) for a reference, without the award being made a rule of Court. Sir John Leach said, that that case was an express authority that the Court would enforce an award, made by virtue of an order of the Court (in a cause), without requiring that the award should be first made a rule of Court. His Honor therefore ordered payment of the money according to the award. In Turner v. Turner, MS. Cases; S. C. 3 Russ. 494, there was an order in the cause referring all matters in difference between the parties to arbitration. The award directed that the defendant should pay to the plaintiff a sum of money. Upon a motion by the plaintiff that the defendant should pay the money in pursuance of the award, and a cross motion by the defendant that the award might be set aside, there was a question raised as to the necessity of making the award an order of the Court; Lord Lyndhurst said that it was not necessary. The correctness of the above decisions in Haggett v. Welsh, Ormond v. Kynnersley, and Turner v. Turner, is very doubtful. In Salmon v. Osborn, 3 Myl. & Keen, 429, all matters in the cause were by an order of the Court (in the cause) referred to arbitration. A petition was presented in the cause for payment of money pursuant to the award. The award had not been made a rule of Court, and a doubt being suggested by the registrar when the petition came on to be heard whether until the award had been made a rule of Court, there could be any order for payment of the money, the petition stood over in order that the point might be inquired into. Sir John Leach, subsequently, notwithstanding his attention was drawn to his own decision in Ormond v. Kynnersley said, that the award must be made a rule of Court, for the Court must know judicially what the nature of the award was, before it could act upon it by directing the payment of money. There are few orders of reference made in a cause, which do not contain a clause that either of the parties shall be at liberty to apply to the Court to have the award of the arbitrators made an order of the Court. This clause is not of modern introduction. It occurs in a manuscript copy of the order in Lingood v. Eade, 2 Atk. 501, in the writer's collection, and he has seen it in orders |