said, was afterwards, to wit, on the day and year aforesaid, accordingly run at the said place called, &c. by and between the said horse called ———, and the said horse called for the said piece of plate so intended and about to be run for as aforesaid, to wit, at, &c. (venue) aforesaid; and that, in the event of the said race, the said horse called did not win the said piece of plate, for that the same was then and there won by the said horse called whereof the said defendant, on the day and year aforesaid, at, &c. (venue) had notice; and by means thereof, and according to the tenor and effect of the said promise and undertaking, he the said defendant then and there became liable to pay to the said plaintiff the said sum of £— when he the said defendant should be thereunto afterwards requested.—[Add counts for money had and received, account stated, and breach.] ON WAGERS. ger con cerning the weight of hogs (e). For that whereas heretofore, to wit, on, &c. at, &c. (venue) a certain dis- On a wacourse was had by and between the said plaintiff and the said defendant, of and concerning the weight of hogs of the said plaintiff, and upon that discourse, the said defendant then and there affirmed that the said hogs did not weigh seven stone a-piece, one with the other, which the said plaintiff then and there denied, and affirmed that the said hogs did weigh seven stone a-piece, one with the other; and thereupon, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant then and there undertook, and faithfully promised the said defendant to pay him £- of lawful money of Great Britain, if the said hogs did not weigh seven stone a-piece, one with the other, upon weighing the same the then next day; he the said defendant undertook, and then and there faithfully promised the said plain tiff to pay him £— of like lawful money, if the said hogs did *weigh [*234] seven stone a-piece, one with the other, upon weighing the same the next day; and the said plaintiff in fact saith, that the said hogs, upon the next day, to wit, upon, &c. at, &c. (venue) aforesaid, were weighed, and that the said hogs then and there, upon weighing the same as aforesaid, weighed seven stone a-piece, one with the other, whereof the said defendant afterwards, to wit, upon the same day and year last aforesaid, had notice, to wit, at, &c. (venue) aforesaid.-[Add counts for money had and received, and on an account stated, and breach.] For that whereas heretofore, to wit, on, &c. (g) at, &c. (venue) in consid- For recov eration that the said plaintiff, at the special instance and request of the said defen- ery of modant, had then and there agreed with, and undertaken, and faithfully promised the game ney lost at the said defendant to play at a certain game, that is to say, at a certain game cal- of cribbage led cribbage, with the said defendant, and to pay him all such sum and sums of (f). money as he, the said plaintiff, should lose to the said defendant, by means of his said playing with the said defendant, he, the said defendant, then and there agreed with, and undertook, and faithfully promised the said plaintiff' to play at (e) See Plead. A. 97. Sec note, ante, 226. (f) See precedents for money lost at whist, 2 Wentw. 543, 544.-2 Sid. 425. Money won fairly at play, if under 107. is recoverable in an action of assumpsit, see 1 (g) The day of the gaming, or about it. WAGERS, ON the said game, with the said plaintiff, and to pay the said plaintiff all such sum and sums of money as he, the said defendant, should lose to the said plaintiff, by means of his so playing with the said plaintiff, when he the said defendant should be thereunto afterwards requested; and the said plaintiff avers, that he, confiding in the said promise and undertaking, and agreement of the said defendant, did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, play at the said game with the said defendant, who did also then and there play at the said game with the said plaintiff'; and also the said defendant by means of his so playing with the said plaintiff as aforesaid, did then and there lose to the said plaintiff, who did then and there win of the said defendant divers sums of money, amounting to a large sum of money, to wit, the sum of £10; yet the said defendant, although he was then and there, and oftentimes afterwards requested by the said plaintiff to pay him the said sum of money, so by him lost to the said plaintiff in manner aforesaid, did not nor would, when he was so requested as aforesaid, pay, nor hath he, at any time before or since, hitherto paid or caused to be paid the said sum of money so by him lost to the said plaintiff as aforesaid, or any part there[*235] of, to *the said plaintiff, but hath hitherto wholly refused, and still refuses so to do, to wit, at, &c. aforesaid.—[Add the money counts, account stated, and breach.] 0111100 ON FEIGN- Feigned issue, with two counts, at the suit of surviving part ners; first count to try petitioning creditor's debt, and second count to try act of Ellenborough. X. ON FEIGNED ISSUES. Michaelmas Term, 1 William 4. in this (to wit.) Be it remembered (h), that on next after same Term, before our lord the *king at Westminster, comes A. B. by (h) When the issue is in the Common Pleas, there is no memorandum, but the issue begins with the declaration, 2 Rich. C. P. 120.-1 Wentw. 136. (i) See forms of different feigned issues, post, 237, &c. 1 Went. 120 to 140. and Index, vol. ii.-Plead. A. 100, 150.-Lil. Ent. 45, 65, 66.-2 Rich. C. P. 120.-1 Mod. Ent. 139. and Feigned Issues in general, Vin. Ab. Feigned Action; Com. Dig. tit. Chancery. Formerly, the feigned issue was more prolix than at present, see 2 Saund. 261. 2 Chit. Gen. Pract. 352. Nature of feigned issue.-A feigned issue is in the nature of a wager (see the notes to form, ante, 226,) between two or more parties, invented to ascertain a matter in dispute between them, and is either authorized by act of parliament, or directed by the Court of Chancery, to try the existence of a modus as above, or of a petitioning credi tor's debt, or an act of bankruptcy, or the validity of a will, right of common, or any other fact; for the Court of Chancery ought to be very cautious of deciding upon facts, without first directing an issue, 9 Ves. 168. Venue. When the venue is local, and a fair trial cannot be had in the proper county, the question may, by feigned issue, be tried in any other county, Skin. 44. Who to be the plaintiff in, 2 Rose, 97. Declaration.-The declaration usually commences with an allegation that a certain discourse was had, &c. but in some cases, as when a petitioning creditor's debt is to be tried, it is usual to begin with an inducement, as follows, 1 Wentw. 188:-" For that whereas before and at the time of the making of the promise and undertaking of the said defendant hereinafter next mentioned, a certain commission of bankruptcy had been and was issued against the said defendant, ED ISSUES. for the prosecution, to wit, John Doe and Richard Roe, which said bill fol- ON FEIGNlows in these words, that is to say, (venue) to wit, A. B. complains of C. D. being in the custody of the marshal of the Marshalsea of our lord the king, before the king himself.-*For that whereas, before and at the time [237] of the making of the promise and undertaking of the said defendants hereinafter next mentioned, a certain joint commission of bankrupt had been and was issued against the said defendants, to wit, at, &c. (venue) and thereupon afterwards, and before the making of the said promise and undertaking, to wit, on, &c. at, &c. (venue) aforesaid, a certain discourse was had and moved by and between the said plaintiffs and the said defendants, wherein a certain question then and there arose; that is to say, [whether the said defendants were, at the issuing of the said joint commission, jointly indebted to the said plaintiffs, as surviving partners of E. F. late of, &c. iron master, deceased, in the sum of £or upwards;] and in that discourse the said plaintiffs then and there asserted and affirmed that the said defendants were, &c. [same as the words in italics to the end] which said assertion and affirmation the said defendants then and there contradicted and denied, and then and there asserted and affirmed the contrary thereof; and thereupon, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiffs, at the special instance and request of the said defendants, had then and there paid to the said defendants the sum of £5 of lawful money of Great Britain, they the said defendants undertook, and then and there faithfully promised the said plaintiffs to pay them the sum of £10 of like lawful money, if they the said defendants were at the issuing, &c. [same as the words in *italics] And the said plaintiffs in fact say, that the said defendants were [238] at the issuing of the said, &c. [same as the words in italics] to wit, at, &c. (venue) aforesaid, whereof the said defendants, on the day and year aforesaid, at, &c. (venue) aforesaid, had notice, whereby they the said defendants then and there became liable to pay and ought to have paid to the said plaintiffs the sum of £10: And whereas also after the issuing of the said commission against Second the said defendants as aforesaid, to wit, on the day and year aforesaid, at, &c. try act of (venue) aforesaid, a certain other discourse was had and moved by and between bankrupt and thereupon afterwards, and before the making of the said promise and undertaking, to wit, on, &c. at, &c. a certain discourse, &c." stating the wager to have been "whether at the time of the issuing of such commission the said defendant was indebted to the said plaintiff in the sum of 100l., &c." See 3 Younge & Jerv. 305. { On a motion to vacate a judgment entered on a bond and warrant of attorney, on an allegation of usury: if the fact be put in doubt, a court of common law may, in its discretion, award a feigned issue to try the fact. Cook v. Jones, Cowp. 727. 1 Taunt. 413. -Wardel v. Eden, 2 Johns. Cas. 258.Hewit v. Fitch, 3 Johns. Rep. 250. Johns. Cas. 280. 3 Johns. Rep. 139. So, a feigned issue has been awarded to try whether a bond and warrant of attorney, on which judgment had been entered, were forged. King v. Shaw, 3 Johns. Rep. 142. So, an issue will be directed to try whether 2 the plaintiff in ejectment, had taken pos- Leave of Court to try.-The attempt to Other Points. As to consolidation of is- As to costs, Tidd, 9th edit. 986, 7.-2 When the whole issue need not be proved, It is said to be proper to move the Court of Chancery for a special jury, Pre. Ch. 264. -2 P. W. 68.4 M. & S. 195, 6. count to cy. ON FEIGN- the said plaintiffs and the said defendants, wherein a certain other question then ED ISSUES. and there arose, that is to say, [whether each of them the said defendants had, at any time, and when, at and before the date and suing forth of the said commission of bankrupt issued against the said defendants by the said plaintiffs as aforesaid, committed any and what act of bankruptcy;] and in that discourse the said plaintiffs then and there asserted and affirmed, that each of them the said defendants, &c. [same as the last words in italics] which said last-mentioned assertion and affirmation the said defendants then and there denied, and asserted and affirmed to the contrary thereof; and thereupon afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiffs, at the special instance and request of the said defendants, had then and there paid, &c. [As in the first count from the asterisk, stating the plaintiff's payment of £5, and defendant's undertaking, and averring the affirmative of the last question; notice to defendants, and their liability, as in first count, and then conclude as directed in note, ante, 236.] [*239] * The pleader framing the declaration, also frames the plea, and the award Plea to the of venire, as follows.]—And the said C. D. by E. F. his attorney, comes first count. and defends the wrong and injury, when, &c. and says, that the said A. B. ought not to have and maintain his aforesaid action thereof against him, because, he says, that though true it is that the said discourse was had and moved by and between the said A. B. and the said C. D. wherein the said question did arise as aforesaid, and that he, the said C. D., did undertake and promise, in manner and form as the said A. B. hath above in that behalf alleged. Nevertheless, for plea in this behalf, the said C. D. saith, that for every, &c. [negativing the first assertion in italics,] in manner and form as the said A. B. hath above in that behalf alleged, and of this the said C. D. puts himself upon the country, and the said A. B. doth the like; therefore, &c. (award of venire, as in common cases.) Plea to second count. And as to the said second count, the said C. D. says, though true it is, &c. -[Same as first plea, negativing the question in a second count, and conclude as above.] The like to [Commencement as ante, 235.]-For that whereas heretofore, to wit, on, &c. try trading at, &c. (venue) a certain discourse was had and moved by and between the of a sup- said plaintiff and the said defendant, of and concerning a commission of posed bankrupt bankruptcy which had heretofore, to wit, on, &c. (date of commission) been (k). issued under the great seal of Great Britain, and bearing date the same day and year last aforesaid, against the said defendant, on the petition of the said plaintiff, and in that discourse a certain question then and there arose, that is to say, [whether the said defendant was a trader within the meaning of the statutes in force concerning bankrupts, or any of them, at or before the said date and suing forth of the said commission against him or not;] and in that discourse the said plaintiff affirmed, &c.-[Proceed as directed in the last precedent, to end of plea, and award venire mutatis mutandis.] (k) See a form, Plead. A. 100. See the form directed ante, 235, as to trying a petitioning creditor's debt. ON FEIGNED ISSUES. devisavit [Commencement as ante, 235.]-For that whereas heretofore, to wit, on, &c. at, &c. (venue) a certain discourse was had and moved of and concerning divers freehold estates, to wit, &c. and of and concerning a certain leasehold Feigned isestate, situate at, &c. late the estates of one E. F. deceased, and of which sue out of said freehold estates the said E. F. deceased, *on, &c. (the date of the will) Chancery was seised in his demesne as of fee, and afterwards died seised thereof; and vel non of of which said leasehold estates the said E. F. deceased, on the day and year and leasefreehold last-mentioned, was possessed, and afterwards died so possessed thereof; hold esand also of and concerning a certain paper-writing, bearing date, &c. (the tates (1). date of the will) purporting to be a last will and testament, and which the said [*241 ] defendant then and there asserted and affirmed was the last will and testament of the said E. F. deceased, and in that discourse a certain question then and there arose, that is to say, [whether the said E. F. deceased, did by his said will devise the said freehold and leasehold estates or not;] and upon that discourse the said plaintiff then and there asserted and affirmed, &c. [as ante, 236, to the end.] [Commencement as ante, 235.]-For that whereas, heretofore, to wit, on, The like &c. at, &c. a certain discourse was had and moved by and between the said to try whether plainplaintiff and the said defendant, of and concerning him the said plaintiff, and in tiff was that discourse a certain question then and there arose, that is to say, [whether heir at law he the said plaintiff was heir at law of one E. F.]; and thereupon the said plaintiff then and there asserted, &c. [as ante, 236, to the end.] or not. XI. ON AWARDS. ON AWARDS. submission to an For that whereas, before the making of the promise and undertaking of the On a parol said defendant hereinafter next mentioned, *certain differences had arisen and were then depending between the said plaintiff and the said defendant, (1) See a form, 1 Wentw. 135. (m) See precedents, 1 Wentw. 90 to 100, and vol. ii. Index.-2 Rich. Prac. C. P.Mod. Ent. 165.-1 Saund. 28.-8 T. R. 571. For the law relating to awards, sce Tidd's Prac. 9th edit. 819 to 845.-Watson on Awards.-Caldw. on Awards.-Kyd on Awards.-3 Chit. Com. Law, 637. As to other remedies, see Tidd, 9th edit. 833.Com. Dig. Arbitrament, I. 1.-3 Chit. Com. Law, 660 to 665. There are early instances of the action of assumpsit on a parol submission. 1 Saund. 28. 8 T. R. 571. It lies on an award in pursuance of an order of nisi prius, 5 East, 139; or of a judge, or by rule of court, 4 Campb. 17.-11 Mod. 170; and this, though a collateral act be awarded to be done. Ld. Raym. 1040. 2 Assumpsit will lie for revoking a parol submission.-2 Keb. 10, 20, 24.-1 Sid. 281. When the submission is by deed, the remedy is by debt or covenant, unless the award be made after the limited time.-3 T. R. 592. Vide Adams v. Freeman, 9 VOL. II. 23 Johns. Rep. 115. } Debt on a parol submission is frequently most advisable when the award is merely for the payment of money, and the whole sum is due. Watson on Awards, 200, 1. See a precedent in debt, 2 Saund. 61, 127, 128. Also forms, post, 395, 8. But if there be any other demand, more properly the subject of an action of assumpsit, which may be joined with the demand on the award; or if the award were not merely for the payment of money, or for the payment of money by instalments, not all due, or for any collateral act, then the plaintiff should declare in assumpsit. 2 Saund. 62, b. 1. n. 5.-2 Hen. Bla. 547.-Ld. Raym. 1040. An action of debt on an award will not lie against executors or administrators on an arbitrament made in the life-time of their testator or intestate, when the sub. mission was not under seal because the testator or intestate might have waged his law in such action. Cro. Eliz. 557, 600. The assent of a party to submit a matter to arbitration is a sufficient consideration, award (m). [*242 ] |