The common law has always regarded the form rather than the substance; and, accordingly, in actions upon awards, the general rule was that if the proceedings were regular upon their face.

the common law would enforce the award and would not recognize the existence of defenses,1 unless such defense involved the validity of the submission itself,2 or the performance of the submission.3 If the arbitrator exceeded the power conferred upon him by the submission,4 or, in some jurisdictions. if he acted without notice to the parties,5 such defenses could be set up at law in an action upon the award. Advantage could not be taken, at common law, of other defects in the proceedings.6

On the other hand, equity refuses to give specific performance of an award, if the circumstances are such that a contract containing the same terms and covering the same subject-matter would not be enforced specifically.7 If the defects in the proceedings are of a substantial character so that it is inequitable to permit the award to be enforced, equity will grant affirmative relief against the enforcement of the award.8 If the award was rendered through bias of the arbitrators,9 or fraud.10 or manifest mistake which prevented the performance of the award,11 equity enjoins the parties who had reaped the benefit of such bias, fraud or mistake, from enforcing it.

In states in which the Code of Civil Procedure or some analogous statute thereto is in force, permitting equitable defenses to be made in actions at law, it is generally held that defenses may be made in actions at law upon awards, although in the absence, of such a statute the parties who wished to invoke such defenses would have to seek relief in equity.12 It was held that under such a statute an award may be attacked in an action at law by the plaintiff,13 as by bringing an action upon his original cause of action and setting up the facts on which he relies by way of reply to the answer which sets up the award.14

1 David Harley Co. v. Barnefield, 22 R. I. 267, 47 Atl. 544; Meloy v. Dougherty, 16 Wis. 269.

2 Rice v. Loomis, 28 Ind. 399.

3 Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 11 L. R. A. 623; McCord v. McSpaden, 34 Wis. 541

4 Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 11 L. R. A. 623; McCord v. McSpaden, 34 Wis. 541

5 Elmendorf v. Harris, 23 Wend (N. Y.) 628, 35 Am. Dec. 587; North Braddock Borough v. Carey, 205 Pa St. 35, 54 Atl. 486.

Contra, Thorburn v. Barnes, L. R. 2

6 Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 11 L. R. A. 623; Michels v. Western Underwriters' Association, 129 Mich. 417, 89 N. W. 56;

Billmyer v. Hamburg-Bremen Fire Ins. Co., 57 W. Va. 42, 49 S. E. 901; Canfield v. Watertown Fire Ins. Co., 55 Wis. 419, 13 N. W. 252.

7 Raleigh Coal & Coke Co. v. Mankin, - W. Va. - , 97 S. E. 299.

8 England. Anderson v. Darcy, 18 Ves. Jr. 447.

Illinois. White Star Mining Co. v. Hultberg, 220 111. 578, 77 N. E. 327.

Ohio. Conway v. Duncan, 28 O. S. 102.

West Virginia. Raleigh Coal & Coke Co. v. Mankin, - W. Va. - , 97 S. E. 299.

Wisconsin. Pettibone v. Perkins, 6 Wis. 616.

9 See Sec. 2635. 10See Sec. 2550. 11 See Sec. 2551.