parties, or any or either of them, so as the said award should be made, and ready to be delivered to the said parties in difference, or such of them as should desire the same on or before the first day of Fbruary, then next. And the said John Doe further saith, that the said Joseph Hunt having taken upon himself the burden of the sil arbitration, did in due manner and within the time for that purpose appointed, to wit, on the first day of February, in the year aforesaid, at An lover, aforesaid, duly make and publish his awar1 in writing, of and concerning the said matters in difference between the said parties, ready to be delivered to the said parties in difference, or such of them as should desire the same, and bearing date the day and year last above named, and did thereby award and direct 2 that the said Richard Roe should pay to the said John Doe for, (here was set out the award so far as it related to the payment of the money,) which when paid should be in full satisfaction of all claims and demands of him the said John Doe upon or against the said Richard Roe for or in respect of the said matters in difference; and the said Joseph Hunt did thereby further award and direct that the said John Doe should pay forty guineas as and for the costs of that his award, and that the said Richard Roe should upon demand repay to the said John Doe or to Andrew Bacon, his solicitor, one moiety of such sum of forty guineas, and that in all other respects the said parties respectively should bear their own costs of that reference, as by the said award, reference being thereunto had, will more fully appear, of which said award the said Richard Roe afterwards, to wit, on the first day of February in the year aforesaid, at Andover aforesaid, had notice.3 And although the said Richard Roe did afterwards, to wit, on the first day of February in the year aforesaid, pay to the said John Doe the said sum of £30, in the said award mentioned; yet the said Richard Roe did not, on the said day in the said award in that behalf mentioned, pay to the said John Doe the said sum of £50, in the said award mentioned, or any part thereof, nor hath he since paid the same or any part thereof, although to pay the said last-mentioned sum of money the said Richard Roe was requested by the said John Doe, to wit, on the first day of March, in the year aforesaid, appointed to the payment of the said sum of £50, to wit, at Andover aforesaid, whereby an action hath accrued to the said John Doe to demand (concluding as in Form No. 2195). Form No. 2197. (Precedent in Whetstone v. Thomas, 25 Ill. 361.)4 [In the Adams Circuit Court. State of Illinois, County of Adams. ( sct. October Term, 1859. John Thomas, by Jackson Grimshaw, his attorney, complains of Abijah Whetstone, defendant, of a plea of debt: For that whereas 1. See supra, note 3, p. 79. 2. See supra, note 1, p. 80. 3. See supra, note 2, p. 80. 4. See also precedents in Blin v. Hay, 2 Tyler (Vt.) 304; and Bachelder v. Hanson, 2 Aik. (Vt.) 319. (here followed a first count)].1 And also for that whereas, the said plaintiff and the said defendant, heretofore, to wit, on the 23rd day of August, A.D. 1859, to wit, at the county of Adams and State of Illinois, executed their certain other writing obligatory, the said plaintiff by the signature of John Thomas, and the said defendant by the signature of Abijah Whetstone, sealed with their seals respectively, (and now to the court here shown,) which said writing obligatory is in the words and figures following, to wit: (Here was set out the submission.) And the said plaintiff avers, that the said Elihu Ward, Wm. M. Dexter and Hiram Elliston, afterwards, to wit, on the 6th day of September, A.D 1859, took upon themselves the burden of said arbitration; and afterwards, to wit, on the 6th day of September, A.D. 1859, after having met said plaintiff and said defendant, and after having heard their several allegations, proofs and arguments, and duly considered the same, did, under and in pursuance of said writing obligatory, then make and publish their award in writing,2 the said Elihu Ward by his own proper signature of Elihu Ward, and the said Wm. M. Dexter by the signature of Wm. M. Dexter, and the said Hiram Elliston by his own proper signature of Hiram Elliston, sealed with their seals respectively, (and now to the court here shown,) of and concerning the said matters in dispute and controversy, so referred to them as aforesaid. And afterwards, to wit, on the 7th day of September, A.D. 1859, delivered the same to said defendant; which said last mentioned award of said arbitrators is in the words and figures following, to wit: (Here was set out the award.) And the plaintiff further avers, that from the time of making said award until the 16th day of September, A.D. 1859, he was ready and willing to accept and receive from said defendant said two promissory notes in said award mentioned, in full settlement of all accounts against said defendant, and in full satisfaction and discharge of said award. Yet the said defendant did not, on said 16th day of September, A.D. 1859, make and execute said two promissory notes in said award mentioned, nor hath paid to said plaintiff said sum of twenty-five hundred and twenty-eight dollars and eighty-one cents, nor any part thereof, so awarded as aforesaid, Lut refuses so to do; to the damage of the plaintiff of three ikousand dollars, and therefore he brings his suit, etc. Jackson Grimshaw, Attorney for Plaintiff].1 2. When Made by Umpire. a. Declaration in Assumpsit on an Award. Form No. 2198. (Precedent in 1 Wentw. Pl. 95.) (Commencing as in Form No. 2188, and continuing down to *) 1. The words enclosed in [ ] are not found in the reported case, but have been added to complete the form. 2. See supra, note 3, p. 79. that whereas, on the first day of February, 1783, at Lambourne, in the county of Berkshire, divers disputes, differences, and controversies had before that time arisen, and were then depending between the said Edward and the said Richard, and thereupon, for putting an end to the said disputes, differences, and controversies, the said Edward and the said Richard, on the same day and year aforesaid, at Lambourne, aforesaid, submitted themselves,1 and then and there agreed to submit themselves, to stand to, abide, observe, perform, and fulfil the order, rule, and determination of Thomas Spanswich, of the parish of Lambourne in the said county of Berks, and Thomas Bacon of the parish of Ramsbury, in the county of Wilts, indifferently chosen by the said Edward and the said Richard, to settle all and all manner of debts, differences, quarrels, disputes, reckonings, agreements, and all other dues and demands whatsoever, both at law and in equity, or otherwise, howsoever then subsisting, or which might thereafter occur; and it was then and there further agreed, that the opinion, award, and determination of the said Thomas Spanswich and Thomas Bacon, touching the matters in question, should be final, and delivered in writing, and signed by them, by the twenty-eighth day of February, 1788; but if they the said Thomas Spanswich and Thomas Bacon, the referees, should not be able to settle the aforesaid disputes and differences, then and in that case the said Edward and the said Richard did thereby empower them the said Thomas Spanswich and Thomas Bacon to choose and fix upon some other person whose determination should be likewise final; and the said agreement being so made as aforesaid, afterwards, to wit, on the same first day of February, 1788, at Lambourne aforesaid, in consideration that the said Edward, at the special instance and request of the said Richard, had then and there 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 Richard undertook, and then and there faithfully promised the said Edward, that he the said Richard 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 Edward in fact says, that the said Thomas Spanswich and Thomas Bacon being such arbitrators as aforesaid, could not agree in opinion so as to settle the said matters in dispute at the time of the making the said agreement between the said Edward and the said Richard, and were not able to settle the aforesaid disputes and differences between them; and thereupon afterwards, and before the said twenty-eighth day of February, 1788, to wit, on the twenty-seventh day of February, 1788, at Lambourne, aforesaid, the said Thomas Spanswich and Thomas Bacon being such arbitrators as aforesaid, by virtue of the said power so given to them as aforesaid, and by and with the approbation and consent of the said Edward and the said Richard, and by their direction, did nominate, appoint, choose, and fix on one Samuel 1. See supra, note 2, p.79. Ballard, to be an umpire or a third person to arbitrate, award, order, and finally determine of, in and concerning all matters in difference between the said Edward and the said Richard, as well on the part and behalf of the said Edward as the said Richard, so that he the said Samuel Ballard should make and set down his award and umpirage in writing, ready to be delivered to the said Edward and Richard on or before the eleventh day of March next. And the said Edward further says that the said Samuel Ballard being indifferently chosen such umpire as aforesaid, and having taken upon himself the charge and burthen of the said award or umpirage, did afterwards, and within the time in that behalf limited for the making of the said award or umpirage as aforesaid, to wit, on the eleventh day of March, 1788, at Lambourne, aforesaid, in due manner made and set down his award or umpirage in writing,1 of and concerning the matters in difference at the time of the making of the said first mentioned agreement so referred to him as aforesaid, then ready to be delivered to the said Edward and the said Richard, bearing date the same day and year last aforesaid; and thereby he the said Samuel Ballard did, amongst other things, award, order, decree, and determine of and concerning the aforesaid matters in difference at the time of making the said agreement, that the said Richard, his executors or administrators, should and did, on or before the twentieth day of March then instant, pay or cause to be paid to the said Edward, his executors or administrators, at or in the then dwelling-house of him the said Edward, situate in Lambourne Woodlands, in the said county, the full sum of one hundred and eighty pounds seven shillings and nine-pence of lawful money of Great Britain, in full payment, discharge, and satisfaction of and for all rent, and all monies, debts, and demands whatsoever, due or owing unto the said Edward by the said Richard, on any account whatsoever, at any time before and on the tenth day of October, 1787; and the said Samuel Ballard did thereby, by his said award or umpirage, further award, order, decree, and determine, that all actions, suits, quarrels, controversies, and disputes whatsoever had, moved, brought, commenced, or depending between the said parties in difference, which in any manner related to or concerned the premises to him the said Samuel Ballard submitted as aforesaid, should from thenceforth cease, determine, and be finally ended, and no further prosecuted or proceeded in by them or any of them, or by their or either of their means, consent, or procurement; and the said Samuel Ballard did then and there, by his said award or umpirage, further award, order, decree, and determine, that the said Edward and Richard should, within the space of one month next after the payment of the aforesaid sum of one hundred and eighty pounds seven shillings and nine pence, at their joint and equal expence, seal and execute unto each other general releases of all actions, cause or causes of action, suits, disputes, controversies, trespasses, debts, duties, damages, accounts, reckonings, and demands 1. See supra, note 3, p. 79. whatsoever, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world until the aforesaid tenth day of October, 1787, inclusive; of all which premises the said Richard afterwards, to wit, on the said eleventh day of March, 1788, at Lambourne, aforesaid, had notice; by reason of which premises the said Richard became liable to pay to the said Edward the said sum of one hundred and eighty pounds seven shillings and nine pence, according to the form and effect of the said award, and which he the said Richard, in consequence thereof, ought to have paid to the said Edward, according to the form and effect of the said agree. ment, and the said promise and undertaking of the said Richard so made as aforesaid: Yet the said Richard, not regarding the said agreement, nor his said promise and undertaking so by him in this behalf made, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said Edward, hath not yet paid to the said Edward, at his aforesaid house, or in any other manner, the said sum of money, or any part thereof, in the said award mentioned, although the said twentieth day of March 1788 is long since past, and although he the said Richard, upon the twentieth day of March, 1788, and afterwards, to wit, on the first day of June, 1788, at Lambourne aforesaid, was thereunto requested by the said Edward; but to pay the same, or any part thereof, to the said Edward, he the said Richard hath hitherto wholly refused, and still doth refuse, contrary to the form and effect of the said agreement, and the said promise and undertaking of the said Richard so made as aforesaid. Whereupon the said plaintiff (concluding as in Form No. 2188).1 Form No. 2199. (Precedent in 2 Chit. Pl. 83; Tillingh. Forms 292; Humph. Prec. 576.) 2 (Commencing as in Form No. 2190, and continuing down to *) upon and by virtue of a certain award or umpirage made by one Joseph Hunt, upon and by virtue of a certain submission before that time made and entered into by the said John Doe and the said Richard Roe to the award, order, and determination of Samuel Short and William West of and concerning all matters in difference then depending between the said John Doe and the said Richard Roe and thereby empowering the said Samuel Short and William West in case they should not agree in making such award, to appoint a third person to award, determine, and finally settle the said matters in difference, and whereupon the said Samuel Short and William West not agreeing in making the said award, and by virtue of the aforesaid power, by and with the consent and approbation of the said John Doe and Richard Roc nominated and appointed the said Joseph Hunt as an umpire, to award, order, and 1. Some counts not relating to Arbitration and Award have been omitted from the text, although found in the precedent. 2. See also a precedent in Humph. Prec. 574. 3. See supra, note 2, p. 79. |