
    In the matter of Knight against Carey and Carey,
    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.
      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 ; and that, at any 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.
    
    
      
      
         Vid. the form of the proper affidavits upon this application, in Tidd's Appendix, adapted to this Court by Mr. Caines, 194; and for the particular requisites of this affidavit, and the manner of procuring it, vid. Tidd'sPr. 760; Caldwell on Arbit. Am. ed. 159; and ICyd on Awards, Phil, ed 23, 24.
    
    
      
       The application to make the agreement a rule of Court, is granted of course, on the production and proving the execution of the bond by which the consent of- the party appears. (Kyd on Awards, Phil. ed. 1808, jp. 25. Rudd v. Coe, Barnes, 55.) If the application be made after the award, it seems that ought to be produced. (Vin. Ab. ti. Arbit. H. a. 12. Caldwell on Arbit. 159, note m. Am. ed.) The matter to avoid the award comes, properly, on shewing cause against the rule nisi for an attachment, for not performing it, if such matter appear on the face of the award; and this may be shewn against the attachment, even though the time limited by the 2d section of the statute has expired. (Pedley v. Goddard, 7 T. R. 69. Hutchins v. Hutchins, Andr. 297.)
      But it is otherwise of matter dehors the award, which is mentioned in that section, viz. corruption, or undue means or practice in obtaining it, and the like, which must he shown, on motion to set aside the award. (7 T. R. 69. Andr. 297. Holland v. Brooks, 6 T. R. 161.) This motion must be made,, as required by the statute, before the last day of the next term after the award published. (6 T.R. 161. 7 T. l.69. Andr. 297. Lowndes v. Lowndes, 1 East. 276.) So of a motion to refer the award, back for r&* consideration, on materials which it was impossible for the party to furnish at the time of the hearing. (Zachary v. Shepherd, 2 T. R. 781.) And, indeed, wherever the objection comes by way of application to set aside the award, though it appear on the face of the award, it must he made within the period allowed by the statute ; (Lowndes v. Lowndes, 1 East, 276. Dubois v. Medlicolt, Barnes, 55,) though otherwise, of this particular objection,where it is shewn for cause against the attachment. (Idem, and vid. Tidd, 762 to 765.)
      These applications to set aside awards, seem to he of very frequent occurrence in the Court of K. B. in England. The course of proceeding there, is first, to obtain a rule to show cause; and the K. B. lately made a general rule, requiring that the rule to show cause shall contain the several-objections to the award, intended to he insisted on at the time of making the rule absolute. (4 Barn. & Alders. 538.)
    
    
      
       Before any application is made for an attachment, the agreement? must he made a rule of Court. (Caldwell on Arbitrations, 159, Am. ed. Tidd, 759, 60.) In a late case, in the English Common Pleas, where a motion was made for an attachment before a nisiprius order of reference was made a rule of Court, the motion was refused; and the reason there given, viz. that there was no rule of Court, when the supposed offence was commit* ted, seems to apply equally to a proceeding upon.the statute.
    
   The Court disregarded the first objection, and ordered, the agreement to be made a rule of Court ; but they refused the rule for an attachment. They remarked that here had been no default; performance of the award never having been demanded.

Rule accordingly. 
      
      ■ (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.
     
      
       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.)
     