c. 15,) and also where it has been made a Rule of a Court of Common Law, and such Court, on a motion by one Party to set aside the Award, and on a motion by the other Party to commit for a contempt in not performing the Award, has been divided in opinion, and, consequently, no order was made; for in such case the Party would be wholly without relief, unless a Court of Equity could relieve (1). Awards made in causes depending upon a submission to Arbitration in Court, have been held not to be within the Statute, and that though the submission has been made a Rule of Court, the Party may file a Bill to set aside the Award (m). It is the present practice of the Common Law Courts, in all cases, upon a motion to make the submission to the Award a Rule of Court, to make it part of the Rule, "that the Parties shall not file any Bill in Equity against the Arbitrators, or against each other." What is the effect of such a Rule, and whether it precludes the Party from applying to Equity, does not appear to be conclusively determined in a Court of Equity (n). These Rules, if binding, would operate as an Injunction to restrain proceedings in a Court of Equity, and might be denominated a CommonLaw Injunction. An Agreement in an Arbitration Bond, that Parties should not file a Bill in Equity, would not, it seems, avail; for Courts of Equity hold that a Man cannot, by an Agreement to refer, deprive himself of the right to apply to a Court of (1) Chicot v. Lequesne, 2 Ves. 317. See also 2 Ves. 181. (m) Lucas v. Wilson, 2 Bur. 701. Lord Lonsdale v. Littledale, 2 Ves. jun. 453. Bunb. 265; and see Gwinett v. Bannister, 14 Ves. 532. (n) Nicholls v. Chalie, 14 Ves. 268, 270; and see Hampshire v. Young, 2 Atk. 155, Equity (o); and will the Rule of Court have an effect which the Agreement of the Parties could not accomplish? It seems that in these cases, according to the opinion of Lord Ellenborough, a Motion, supported by Affidavit, might be made to the Court of Common Law, for discharging so much of the Rule for making the submission to the Award a Rule of Court, as restrained the Defendant from filing a Bill in Equity (p); for the Bill in Equity which the Rule of Court contemplates is a Bill filed to postpone the payment of a debt, or other purposes of vexatious delay (q); so that Lord Ellenborough seemed of opinion with Lord Rosslyn (r), that it is not the words of the Act, but the terms of the Rule of Court, which prevents the partyling a Bill. If indeed the Statute prevented the filing of a Bill, the Courts would not have been so long and so constantly in the habit of making it one of the terms of the Rule of Court, that no Bill in Equity should be filed. It appears that if a Bill be filed, and an Attachment is sought for suing in Equity, the Court has a discretion, whether it will grant it, and will not grant it if the proceedings in Equity appear to the Court to be proper (s). In a late case (t), where a Bill was filed to set aside an Award, it was holden that there is no Jurisdiction in Equity to stay by Injunction process (0) Nicholls v. Chalie, 14 Ves. p. 270, and what is said in Street v. Rigby, 6 Ves. 815. Sed vide 2 Atk. 396,412, as to an Agreement that no Bill should be filed against the Arbitrators. (p) Braddick v. Thompson, 8 East, 347; Grimstone v. Bell, (9) 4 Taunt. 255. tledale, 2 Ves. jun. 453. (s) Burton v. Periam, mentioned in Lord Lonsdale v. Lit tledale, a Ves. jun. 453. (t) Gwinett v. Bannister, 14 of a Court of Law upon an Award made a Rule of Court ; and it has been recently held, that if an Award is made a Rule of Court, this Court cannot act, the Jurisdiction being transferred to the Court in which the submission was made a Rule; but if the submission is not acted upon, no other Court acquires Jurisdiction-no process of contempt lies— and it is the same as if no such submission had been made (u). When the submission to an Award is made a Rule of Court, the application to set it aside must be made within the next Term subsequent to the Award; and after the expiration of the Term, and when an Attachment is moved, for not performing the Award, the Court will permit a Party to show that the Award is illegal on the face of it, but no matter extrinsic to the Award can then be urged to resist a compliance with it (x). If Fraud in the Award were discovered after the expiration of the Term, would not a Court of Equity relieve? When Parties of age, (for an Award does not bind an Infant) (y), have submitted to make the submission to the Award a Rule of Court, (and it is no part of the Rule that a Bill in Equity shall not be filed,) it is a contempt of Court to dispute the order, unless partiality, corruption, or misbehaviour in the Arbitrators can be shown; and this depends upon the denial in the Answer of the facts charged, and if that is sufficiently done, a plea of the Award will be sufficient (*); but still, if upon the hearing of the Cause (u) Steffv. Andrews, 2 Madd. Rep. 10. (x) Pedley v. Goddard, 7 T. R.78. 1 East, 277, 11 East, 368. (y) 1 Ch. Cas. 279. (2) Ld. Redesdale's Tr. Pl. 209. the Evidence should be strong enough to convince the Court that the Arbitrators have been guilty of corruption, partiality, or misbehaviour, it will effectually open the plea (a). Where an Award is impeached, on the ground of gross misconduct in the Arbitrators, and they have been made Parties to the Suit, the Court has ordered them to pay the Costs (b). And in such Case a demurrer would not, probably, be allowed, as it will in general where a Bill is filed to have the benefit of or to impeach an Award, and the Arbitrators are made Parties, for the Plaintiff can have no Decree against them, nor can he read their Answer against the other Defendants (c). Insurances fraudulently obtained may be set aside; as, where a Merchant had a doubtful Account of a Ship, and insured his ship, without acquainting the Insurers what danger the Ship was in, it was held to be a Fraud, and the Policy was ordered to be delivered up, with Costs, but the Premium to be paid back, and allowed out of the Costs (d). So, a Policy of Insurance for insuring a Life, gained by fraud, has been set aside with Costs, both at Law and in Equity, and the Premium received on the Policy, directed to go in part of Costs (e). A Release, or discharge obtained by fraud or compulsion, may be set aside; as where a Scrivener ran away with 2,000 l. which he was intrusted to lend (a) Lingood v. Croucher, 2 Atk. 396, and S. C. p.506. (b) 2 Atk. 395, 412. 504. 2 Ves. 315, 317. Cas. Temp. Finch, 141. (d) De Costa v. Scandret, 2 P. Wms. 170. (e) Whittingham v. Thornburgh, 2 Vern. 206. S. C. Prec. out, and after some time writes to the Party that if he will take 500 l. of his money and give him a discharge he should have it, which he did, not knowing how to come by his money; yet afterwards the Creditor was relieved in Chancery for the rest, notwithstanding his own release (d). If a Verdict has been obtained by fraud a Court of Equity will give relief (e). So if a Judgment at Law be obtained against conscience, a Court of Equity will decree the Party to acknowledge satisfaction on that Judgment, though he has received nothing (f). A Decree obtained by fraud may be set aside, not by a rehearing, or appeal (g), but upon an original Bill in the nature of a Bill of Review (h). It is said, indeed, that a Decree, or interlocutory Order, obtained by fraud, may be set aside upon Petition (i); but this was probably meant to extend only to the case of a Decree not signed and enrolled, and where the fact of Fraud could not be controverted (k). An Order in Lunacy may be set aside by Bill if obtained by fraud (1). When a Decree is sought to be impeached on the ground of Fraud, the proper defence seems to be, a (d) Dr. Lake v. Deane; for by Lord Egerton, volenti non fit injuria, si dolo sit inductus ad consentiendum. [Gooding's Bank. Law, 2d edit. 192, quot. 2 Christian's B. L. 156.] (e) Bateman v. Willoe, 1 Sch. & Lefr. p. 205. (f) Barnsley v. Powell, 1 Ves. 289. See dict. Mitchell v. Harris, 2 Ves. jun. 135. (g) Bradish against Gee, Ambl. 229. |