was attached to answer Thomas Whitefield of a plea of trespass on the case upon promises; and thereupon the said Thomas by Andrew Bacon, his attorney, complains that whereas on the 10th of November, 1760, at Penrith in the said county,† divers differences of accounts and disputes had arisen, and were then and there depending between the said plaintiff and the said defendant, and thereupon, for putting an end to the said differences and disputes, they, the said Thomas and George, on the same day and year aforesaid, at Penrith aforesaid, submitted themselves 1 to stand to the award, arbitrament, and final determination of Edward Osborn and John Sargent, provided they should give in their award in writing of and concerning the premises in the course of one calendar month then next ensuing; and if the said arbitrators should not end the disputes amicably between themselves, then to stand to the award and final decision of an umpire by the said arbitrators to be indifferently chosen, provided the said umpire should give in his said award and final determination in writing in the space of two calendar months then next following; and thereupon afterwards, to wit, on the same day and year aforesaid, at Penrith aforesaid, in consideration that the said plaintiff, at the special instance and request of the said George, had undertaken and faithfully promised to perform and fulfil the before mentioned agreement in all things on his part and behalf to be performed and fulfilled, he, the said George, undertook and then and there faithfully promised the said Thomas that he, the said George, would perform and fulfil the said agreement in all things therein contained on his part and behalf to be performed and fulfilled. And the said plaintiff, in fact, says that afterwards, and before the expiration of one calendar month from the time of making the said submission, to wit, on the said 8th of December, in the year aforesaid, at Penrith aforesaid, they, the said Edward and John, took upon themselves the burthen of the said award, and then and there in due manner made and gave in their award and final determination in writing 2 of and concerning the premises so submitted to them as aforesaid, and by the said award did then and there award and order that all suits and controversies whatsoever had, moved, or depending between the said parties touching the difference of accounts to the day of the date of the said award should cease and be no further prosecuted; and they did thereby further award that the said defendant should pay, or cause to be paid, the sum of seventy pounds to the said plaintiff, on or before the first of January then next following; and they did further award that the said plaintiff should pay and bear all expenses anywise relating to the said differences; and lastly they did thereby award that the said parties should give each to the other general releases from the beginning of the world to the day of making the said award; of all which premises the defendant on the 8th of December, in the year aforesaid, at Penrith aforesaid, had notice; and although all suits and controversies whatsoever 1. See supra, note 2, p. 79: 2 E. of F. P.-6 81 2. See supra, note 3, p. 79. had, moved, or depending between the said parties touching the said difference of accounts to the said 8th of December did then and there, on the part and behalf of the said plaintiff, cease and were not further prosecuted, yet (concluding as in Form No. 2188, omitting the pledges to prosecute). Form No. 2190. (Precedent in 2 Chit. Pl. 82; Tillingh. Forms 291; Humph. Prec. 575.) (Commencing as in Form No. 2188 or Form No. 2189, and continuing down to *.)1 That whereas the said Richard Roe heretofore, to wit, on the first day of May, in the year of our Lord one thousand seven hundred and eighty, at Lambourne, in the county of Berkshire, was indebted to the said John Doe in the sum of £100 of lawful money of Great Britain * upon and by virtue of a certain award made by Samuel Short upon and by virtue of a certain submission before that time made by the said John Doe and the said Richard Roe2 to the award, order, and determination of the said Samuel Short, of and concerning all matters in difference then depending between the said John Doe and Richard Roe, and upon and by virtue of which said reference the said Samuel Short had then and there awarded that the said Richard Roe should pay the said last mentioned sum of money to the said John Doe, and being so indebted, he, the said Richard Roe, in consideration thereof afterwards, to wit, on the day and year last aforesaid, in Lambourne aforesaid, undertook, and then and there faithfully promised the said John Doe, to pay him the said last mentioned sum of money when he, the said Richard Roe, should be thereunto afterwards requested, yet the said defendant, not regarding (concluding as in Form No. 2188 or Form No. 2189).3 Form No. 2191. (Precedent in Whitcomb v. Preston, 13 Vt. 53.) [State of Vermont, SS. To the sheriff of Chittenden County, his deputy, or either of the constables of Chittenden county, By the authority of the state of Vermont you are hereby commanded to summon Noah Preston, of Richmond, to appear before the County Court next to be holden at Burlington, within and for said county of Chittenden, on the third Tuesday in September, 1840, then and there in said court to answer to Erastus F. Whitcomb, of said Richmond],4 in a plea of the case* for that whereas, 1. If the action were in the King's Bench the declaration would commence as in Form No. 2188; if in the Common Pleas, as in Form No. 2189. 2. See supra, note 2, p. 79. 3. According as the action was in the King's Bench or the Common Pleas. 4. The words enclosed in [ ] will not be found in the reported case, but have been added to render the form complete. before the making of the promise of the defendant hereinafter next mentioned, certain differences had arisen and were then depending between the said plaintiff and the said defendant, touching and concerning a quantity of hay and a certain piece of land, a part of the old Cox farm, in Richmond, in the county of Chittenden, and divers suits having then been commenced and were then pending, relative to said hay, by this defendant against this plaintiff, which said hay the said plaintiff had, before that time, received of and from the said defendant, and converted to his own use. And therefore for the putting an end to the said differences the said plaintiff, and the said defendant, heretofore, to wit, on the 13th day of March, A.D. 1857, at said Richmond, by their writing, signed by them respectively, submitted themselves1 to the award of Edward Jones and Nathan Fay, Jr., giving the said Jones and Fay full power to award the transfer of the title to said land, by deed, or otherwise, and the price and quantity of said hay, and also to award as to the bills of cost which had arisen in said suits above-mentioned, and all other things as to law and equity should appertain, and then and there mutually bound themselves, in the said submission, that, in case either the said plaintiff or the said defendant should revoke the said submission, or neglect and refuse to perform the award made in the premises, the party so revoking or neglecting and refusing to perform the award so made, as aforesaid, should pay to the other party the sum of five hundred dollars, in lieu of all other damages; and, in consideration thereof, and that the said plaintiff, at the special instance and request of the said defendant, had then and there undertaken and faithfully promised the said defendant to perform, abide, and fulfil the award of the said Edward Jones and Nathan Fay, Jr., to be so made as soon as might be between the said plaintiff and defendant, of and concerning the said differences, in all things therein contained, on the said plaintiff's part and behalf to be performed and fulfilled, or else to pay the defendant the said sum of five hundred dollars, he, the said defendant, then and there faithfully promised the said plaintiff to perform and fulfil the said award in all things therein contained on the said defendant's part and behalf to be performed and fulfilled, or else to pay the said plaintiff the said sum of five hundred dollars. And the said plaintiff in fact saith that the said Edward Jones and Nathan Fay, Jr., having taken upon themselves the burthen of said arbitrament, afterwards, to wit, on the thirteenth day of March, A.D. 1837, at said Richmond, made their certain award, in writing, 2 between the said plaintiff and the said defendant, of and concerning the said differences, and did thereby award, among other things, that the said plaintiff should, on or before the first day of April then next, make out, well execute, and deliver to the said defendant, a good, authentic deed of conveyance of all the land which the said plaintiff then held by deed of conveyance from one Samuel Martin, being a part of the old Cox farm, and give to the said defendant the possession 2. See supra, note 3, p. 79. 1. See supra, note 2, p. 79. of the said premises on or before the day last aforesaid, and that, upon the delivery of the said deed of said land by the said plaintiff to the said defendant, the defendant should pay to the said plaintiff the sum of $277.36, in full satisfaction and discharge of said difference, of which said award the said defendant afterwards, to wit, on the said thirteenth day of March, A.D. 1837, at said Richmond, had notice. And, although the said plaintiff afterwards, to wit, on the said first day of April, and at all times before and since, hath been willing and ready to perform, and did then and there perform, all things on his part in the said award by him to be performed and fulfilled, and although the said defendant was, after the making of said award, to wit, on the said first day of April, at said Richmond, and before and since that time, requested by the said plaintiff to pay the said sum of two hundred and seventy-seven dollars and thirty-six cents, and to take of and from the plaintiff a good and authentic deed of conveyance of all the land which the plaintiff, at the time of making of said award, held by virtue of said deed from Samuel Martin, being a part of the old Cox farm, so called, in Richmond aforesaid (which deed plaintiff then and there executed to defendant, with covenant of warranty, and offered to defendant, with possession of the premises, agreeably to said award, all which plaintiff was then and there ready and willing to do) or otherwise to pay to the said plaintiff the said sum of five hundred dollars, according to the tenor and effect of the said submission and award, and according to the promises and undertakings of him the said defendant. Yet the said defendant did not nor would on or before the said first day of April, A.D. 1887, pay to the plaintiff the said sum of two hundred and seventy-seven dollars and thirty-six cents, nor the said sum of five hundred dollars, nor any part thereof, nor accept said deed so executed and offered, but then and there wholly neglected and refused so to do, whereby and by reason whereof the said defendant became liable to pay to the said plaintiff the said sum of five hundred dollars agreeably to his said promise and undertaking in the said submission contained and expressed [yet the defendant did not when requested as aforesaid, or at any time afterwards, pay the said sum of five hundred dollars or any part thereof to the plaintiff, but to pay the same has neglected and refused, and still does neglect and refuse, to the damage of the said Erastus F. Whitcomb, as he says, the sum of six hundred dollars, for the recovery of which, with just costs, the said Erastus F. Whitcomb brings suit. Hereof fail not, but of this writ, with your doings thereon, make due return according to law. Dated at Burlington, in the county of Chittenden, the first day of September, in the year of our Lord one thousand eight hundred and forty. 1. See supra, note 2, p. 80. John Hancock, Clerk.]2 but have been added to render the 2. The words enclosed in [ ] will form complete. not be found in the reported case Form No. 2192. (Precedent in Gibson v. Powell, 5 Smed. & M. (Miss.) 713.) } [State of Mississippi, In the Circuit Court, May Term, A.D. County of Simpson. 1842.11 Lewis C. Gibson complains of Harmon Powell, being in custody, etc., of a plea of trespass on the case. For that whereas heretofore, to wit, on the first day of September, in the county aforesaid, a controversy having arisen between the said plaintiff and Henry Powell, said Harmon Powell and Henry C. Bennett, touching two several promissory notes made by said Henry Powell, Harmon Powell, and Henry C. Bennett, the one due the 1st day of January, 1840, for the sum of $3,595; and the other for the like sum of $3,595, due 1st day of January, 1841; and both payable to the said plaintiff, subject to credits amounting to the sum of $708.44; and the parties being desirous to settle and adjust the residue of the said matters of dispute, then and there agreed to submit the same to the arbitration and award of John McIntosh, James Dear, and John Bishop, persons indifferently chosen by and between the said parties 3 for that purpose; and the plaintiff avers that the arbitrators chosen and constituted as aforesaid, afterwards, to wit, on the 19th day of October, 1840, in the county aforesaid, did make and deliver to the parties aforesaid their award in writing, in substance and effect as follows, to wit (here was set out the substance of the award) ; of all which the said defendant, at the county aforesaid, had notice. By means whereof [the said defendant became liable to pay to the said plaintiff the said sum of $1,895, so awarded to him as aforesaid, when he, the said defendant, should be thereto afterwards requested, and being so liable he, the said defendant, undertook, and then and there promised the said plaintiff, to pay him the said last mentioned sum of money when he the said defendant should be thereunto afterwards requested; yet the said defendant, not regarding his said promise and undertaking, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said plaintiff in this behalf, did not, nor would, when he was so requested as aforesaid, or at any time afterwards, pay the said sum of $1,895, or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused, and still neglects and refuses, so to do. Whereupon the said plaintiff says that he is injured and hath sustained damage to the amount of $2,000, and therefore he brings his suit, etc. Jeremiah Mason, Attorney for Plaintiff.]1 1. The formal parts of the declaration as well as the words enclosed in [ ] will not be found in the precedent, but have been added to render the form complete. A second count in the declaration not relating to the subject of Arbitration and Award has been omitted from the form. 2. The old English common-law 3. See supra, note 2, p. 79. |