to the said award as arbitrators are the proper and genuine signatures of the said Samuel Short, William West, and Joseph Hunt; and that this deponent set his name to the award as a subscribing witness at the time of its publication and execution as aforesaid. (Furat as in Form No. 2214.) John Jones. 10. Order for Rule to Show Cause why Judgment should Not be Entered on the Award. State of Colorado, County of Dolores. ( SS. Form No. 2217. In the District Court of said county. In the matter of the arbitration between John Doe and Richard Roe.1 * This first day of June, 1896, come the above named parties by their attorneys, and Samuel Short, William West, and Joseph Hunt, to whose arbitrament the matters in difference between said parties were, by rule of this court, submitted on the first day of May, A.D. 1896, returned their award which is as follows, to wit: (Here set out the award in full.) And thereupon, on motion of John Doe by Jeremiah Mason, his attorney, it is ordered that the said Richard Roe show cause on or before the tenth day of June, 1896, why judgment shall not be given on said award. John Marshall, Judge. 11. Order Confirming an Award and Judgment on the Same. State of Colorado, County of Dolores. SS. Form No. 2218. In the District Court of said county. In the matter of the arbitration between John Doe and Richard Roe.1 And now this first day of June, 1896, come the above named John Doe and Richard Roe by their respective attorneys, Jeremiah Mason and Joseph Story, * and the said Richard Roe, in discharge of the rule to show cause why the award should not be confirmed and judgment given thereon, files the following objections: (Here set out the objections in full.) And the evidence and arguments of counsel for both sides having been heard, the aforesaid objections are overruled by the court.2 It is therefore adjudged and ordered that the said award be and hereby is confirmed in all respects, and the court hereby renders judgment thereon. And it is further adjudged and ordered that the said John Doe recover of the said Richard Roe the sum of five hundred dollars (or whatever is awarded in the award). 1. See supra, note 2, p. 62. 2. If either party excepted to the ruling of the court overruling the John Marshall, Judge. objections to the confirmation of the award, the same should be noted in this entry. 12. Judgment on an Award. Form No. 2219. (Precedent in Callahan v. McAlexander, i Ala. 368.)1 Edmond T. McAlexander This day came the plaintiff, by his attorney, and also, came the defendant, by his attorney, whereupon the plaintiff produced to the court the award of the referees in this case, which is in these words: (Here was set out the award.) And it being in proof to the court, that they were the referees appointed by order, issued by William Morrow, a justice of the peace for the county of Morgan, in which county the parties live; and that the parties appeared before the referees, confessing due service of notice, and that the referees were duly sworn by Wm. Morrow, a justice of the peace for said county; and the signature of the referees being also proved, it is therefore considered by the court, that Edmond T. McAlexander, do recover of William Callahan, the said sum of five hundred and eight dollars sixty-six cents damages as aforesaid, together with the costs of the reference, about the suit in this behalf expended. 13. Judgment Modifying an Award. Form No. 2220. (Commencing as in Form No. 2218, and continuing down to *) and the said Richard Roe files his motion to modify the award of Samuel Short, William West, and Joseph Hunt, which motion is as follows: (Here set out the motion in full.) And the court having heard the arguments of counsel for both sides sustains the motion of the said Richard Roe, and the award is hereby modified and corrected, as follows: (Here set out the modified award in full.) John Marshall, Judge.3 14. Judgment Vacating an Award. Form No. 2221. (Commencing as in Form No. 2218, and continuing down to *) and the said Richard Roe files his motion to vacate the award of 1. At the March term of the Morgan (Ala.) Circuit Court, 1839, the judgment given in the text was entered. Upon a writ of error to the Supreme Court, it was attacked on several grounds, but was sustained on all questions as to form. The judgment was, however, reversed, as the award did not show whom it was against, and the court was held to have erred in entering judgment against Callahan, he having submitted the matter to arbitration as the agent of one O'Neal, although signing the submission in his own name. 2. For the formal parts of a judg ment in Alabama consult the title JUDGMENTS. 3. For the formal parts of a judg ment in any particular jurisdiction consult the title JUDGMENTS. Samuel Short, William West, and Joseph Hunt, which motion is as follows: (Here set out the motion in full.) And the court having heard the arguments of counsel for both sides find that the said cbjections are proved, and it is therefore adjudged and decreed that the said award be and the same hereby is void and of no effect, and that the same be and hereby is vacated and set aside. John Marshall, Judge.1 VI. PROCEEDINGS AGAINST PARTY REVOKING SUBMISSION. 1. Declaration in Assumpsit against the Party Revoking. Form No. 2222. (Precedent in 2 Rev. Swift's Dig. 482.) 2 (Commencing as in Form No. 2191, and continuing down to *) whereupon the plaintiff declares and says that, on the 21st day of January, A.D. 1876, there had been sundry accounts, trade, and dealings, between the plaintiff and defendant that then remained open and unsettled, and sundry mutual demands were subsisting between them, and for an amicable settlement and final determination of the matters aforesaid, the plaintiff and defendant, on the 21st day of January, aforesaid, submitted the same, by a submission in writing of that date, by them signed and executed, to the arbitrament and final determination of Samuel Short and William West, arbitrators, by them mutually chosen and appointed, and the plaintiff and defendant mutually promised each other, in consideration of said submission, to abide by and perform such award in all things therein contained to be by them respectively performed, and the plaintiff says that the said arbitrators took on themselves the burden of said award and while they were hearing the said parties, and before they had made and published their award, on the 10th day of February, A.D. 1876, the defendant, his said promise and undertaking not regarding, revoked his said submission, and annulled and vacated the power of said arbitrators, and prevented them from making any award of and concerning the matters so submitted to them as aforesaid, and that he, the plaintiff, has been thereby deprived of all the benefits of said submission, and has lost all the necessary expense incurred in the hearing of said matters before said arbitrators, amounting to the sum of $50, to the damage of the plaintiff $100 (concluding as in Form No. 2191). 2. Complaint or Petition against the Party Revoking. Form No. 2223. (Commencing as in Form No. 2202, and continuing down to *.) 2. That thereafter on the 2d day of February, A.D. 1896, and before the matters aforesaid were finally submitted to said 1. See supra, note 3, p. 107. 2. See also a precedent in Humph. Prec. 668. arbitrators, the defendant, Richard Roe, by writing delivered to said arbitrators, revoked their powers. By reason whereof, plaintiff has sustained damage in the sum of three hundred dollars, for which he demands judgment. Jeremiah Mason, Attorney for Plaintiff. 3. Complaint for Revoking the Arbitrator's Powers, in Connecticut. Form No. 2224. (Conn. Prac. Act. 50.) (Commencing as in Form No. 2203, and continuing down to*.) 2. Thereafter, and before any award was made, the defendant, by writing under his hand and seal delivered to said arbitrator, revoked the powers of the arbitrator. The plaintiff claims $1,000 damages. (Concluding as in Form No. 2203.) VII. PLEADINGS SUBSEQUENT TO DECLARATION OR COMPLAINT. 1. Plea of Arbitrament and Award. Form No. 2225. (Precedent in 3 Wentw. Pl. 144; 2 Chit. Pl. 484; Tillingh. Forms 474; Humph. Prec. 868; McCall's Forms 284.) In the King's Bench. Richard Roe, ats. John Doe. 1 Trinity Term, 51 Geo. III. And the said Richard Roe, by Andrew Bacon, his attorney, comes and defends the wrong and injury, when, etc.,2 .2 and says that the said John Doe ought not to have or maintain his aforesaid action thereof against him. Because he says, that after the making of the said several promises and undertakings in the said declaration mentioned, and before the day of the exhibiting of the bill of the said 1. For the formal parts of a plea in a particular jurisdiction consult the title PLEAS. 2. Defense at common law was of two descriptions. (1) Half defense, which was as follows: "comes and defends the force and injury, and says;" and (2) full defense, which was in these words: "comes and defends the force and injury, when, etc.," which "when, etc." meant "when and where it shall behoove him." In strictness, the words "when, etc." should not have been added when only half defense was to be made, and after the words "comes and defends the force and injury" the subject-matter of the plea should immediately be stated. The practice, however, grew up in all cases, whether of half or full defense, of stating it in the form given in the text, which was considered only as half defense in cases where such a defense should be made, and as full defense when the latter was necessary.. I Chit. Pl. 413; 2 Saund. 209, c, note; Clapham v. Lenthall, Hard. 355. John Doe against him the said Richard Roe in this behalf, to wit, on the 8th day of August, A.D. 1789, at Andover aforesaid, the said John Doe and the said Richard Roe submitted themselves, (that is to say.) by two mutual bonds of arbitration, bearing date respectively the day and year last aforesaid, to the arbitration of, and engaged in all things well and truly to stand to, obey, abide. perform, fulfil, and keep the award, order, arbitrament, final end and determination of John King and Luther Myles, arbitrators, indifferently elected and named as well on the part and behalf of the said John Doe as of the said Richard Roe, to arbitrate, award, order, judge and determine of and concerning all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, at any time theretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed or depending by and between the said parties, or either of them, so as the said award should be made by the said arbitrators, under their hands, and ready to be delivered to the parties in difference, or such of them as should desire the same, on or before the 8th day of September next; which time for making the said award was afterwards and before the time for making the same expired, to wit, on the 5th day of September, at Andover aforesaid, by consent of the said John Doe and the said Richard Roc, enlarged until the 8th day of October then next, and it was then and there agreed by and between the said John Doe and the said Richard Roe, that the award made before that time between them should be binding and conclusive between them; which last mentioned time for making the said award, was afterwards, and before the said enlarged time for making the said award had elapsed, to wit, on the 5th day of October at Andover aforesaid, by consent of the said John Doe and the said Richard Roe further enlarged until the 8th day of December then next, and it was then and there agreed between the said John Doe and the said Richard Roe, that the said award before that time made between them, should be binding and conclusive between them. And the said Richard Roe further saith, that the said arbitrators, before the expiration of the said last mentioned time limited for making their award, to wit, on the 8th day of December, at Andover aforesaid, took upon themselves the burthen of the said arbitration, and having duly examined and considered the subject matters in dispute between the said John Doe and the said Richard Roc, they the said arbitrators did make their award in writing under their hands, of and concerning the premises, and of and concerning the said promises and undertakings in the said declaration mentioned, and ready to be delivered to the said parties. in difference, and did thereby then and there award that (here set out the substance of the award)2 as by the said award bearing date 1. If the suit is commenced by original writ use the words "before the commencement of this suit." 2. Averment of the defendant's per formance of the award seems to have been unnecessary. Kydd 390, 392; I Lord Raym. 122, 1039. |