counts.

Money had and received (P)

And whereas also, the said CD afterwards, to wit, on, &c. Common aforesaid, at, &c. aforesaid, had and received a certain other sum of money, to wit, the sum of -. of like lawful money, to and for the use of the said A B, and to be paid by the said CD to the said A B, when he the said CD should be thereunto afterwards requested, whereby, &c. [same as above, from the obelisk to the end.]

ted.(g)

And whereas also, the said C D afterwards, to wit, on, &c. Account sta-aforesaid, at, &c. aforesaid, accounted with the said AB, of and concerning divers other sums of money before that time and then due and owing, and in arrear, and unpaid, from the said CD to the said A B, and upon that accounting, the said CD was then and there found to be in arrear and indebted to the said A B, in the further sum of -7. of like lawful money to be paid by the said CD to the said A B, when he the said CD should be thereunto afterwards requested, whereby and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said A B, to demand and have of and from the said C D, the said last-mentioned sum of. residue of the said sum above demanded.

Yet the said CD, although often requested so to do, hath Breach.(r) not as yet paid the said sum of -l. above demanded, or any part thereof, to the said A B. But he to do this hath hitherto wholly refused, and still doth refuse. To the damage of the said A B of —.(s) and therefore he brings his suit, &c.

Pledges, &c,

(p) Id. ibid.

(8) The sum here to be inserted

(2) As to this count, see Ast. Ent. is in general 10%. or any other sum, 209, 210. 2 Mall. 177.

(r) For the different breaches, when the action is brought by or against any particular persons, as surviving partners, &c. ante, 45 to 76.

VOL. II.

though less than the real demand,
If there be a demand for interest, in-
sert a count for the same in debt, as
ante, 42.

[ 17 ]

1. Declara

tion on an a

arbitration bonds.(t)

*III. ON AWARDS, &c.

For that whereas certain differences having arisen and being ward, where depending between the said A B and the said C D, the said A the submis B heretofore, to wit, on, &c. at, &c. by a certain bond of arbitrasion was by tion, bearing date, &c. became bound to the said C D in a certain penal sum, in the said bond mentioned'; and the said C D then and there, by a certain other bond of arbitration, bearing date, &c. became and was bound to the said A B in a certain penal sum in the same bond mentioned, which said bonds were respectively coondioned to(u) abide the award and determination of E F, of, &c. an arbitrator indifferently elected and named, as well on the part and behalf of the said CD as of the said A B, to arbitrate, award, order, adjudge 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 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

* 146

(t) See the precedents, 7 Wentw. Index, 514. As to this declaration, and the action on awards in general, see the precedent in assumpsit, and the notes, ante, 79, 80, 81. and the precedent and notes in 2 Saund. 61. and 62. Id. 127, 128. 1 Saund. 163, 164. When the submission was by bonds, and the award is merely to pay money, the plaintiff may either deelare on the defendant's bond, without stating the condition, as in 1 Sauud. 168. or may set out the bond and condition, and the award and breach; or he may declare upon the award itself, as in the above precedent; in which latter case a mutual submission must be stated, though the mode of submission, as whether in writing or not, needs not be shewn, Saund, 01. h. n. 2. 62. b. n. 5. when

the demand is merely for money
due on the award, it is in general
more advisable to declare on the a-
ward as above than on the bond, in
order to avoid the delay and expense
of a writ of inquiry, which is necessa
ry when the action is on the bond,
and the defendant suffers judgment
by default, 6 East, 613. But in or
der to maintain debt on the award,
it is necessary that the whole of the
money thereby directed to be paid be
due. And that the cause of action
be merely for non-payment of money,
and not for the non-performance of
any other act, 1 H. Bl. 547. 2 Saund.
62. n. 5. In the latter cases the de-
claration must be on the bond.
(u) Set out the substance of the
condition.

them as should desire the same on or before, &c. And the On Awards. said A B further saith, that the said E F having taken upon himself the burden of the said arbitration, did in due manner and within the time for that purpose appointed, to wit, on, &c. at, &c. duly make and publish his award in writing,(x) 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, &c. and did thereby award and direct(y) that the said CD should pay to the said A B, for, &c. [set out the award so far as relates to the payment of the money,] which, when paid, should be in full satisfaction of all claims and demands of him the said A B upon or against the said C D, for or in respect of the said matters in difference: and the said E F did thereby further award and direct, that the said A B should pay forty guineas as and for the costs, of that his award, and that the said CD should upon demand repay to the said ♬ B, or to 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 CD afterwards, to wit, on, &c, at, &c. had notice.(z) And although the said C D did afterwards, to wit, on, &c. pay to the said AB the said sum of -. in the said award mentioned; yet the said C D did not on the said day, in the said award in that behalf mentioned, pay to the said A B the said sum of - 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 C D was requested by the said A B, to wit, on, &c. appointed to the payment of the said sum of . to wit, at, &c. aforesaid, whereby an action hath accrued to the said A B, to demand and have of and from the said CD the said sum of . parcel of the said sum above demanded. [Add counts for money paid—and on an account stated in debt-and common conclusion, ut ante, 144.]

* 147

(x) As to this allegation, see 2 plaintiff to his action, 2 Saund. 62. h. Saund. 62. b. n. 5. Ante, 81. n. (r). n. 5. Ante, 81. n. (t). (-) See ante, 81. n. (u),

(y) It is sufficient to shew so much of the award only as to entitle the

For Escapes.

For that whereas the said A B heretofore, to wit, in

2. Against a term, in the

* 148

— year of the reign of our lord the now king, sheriff for the escape of a in the court of our said lord the king, before the king himprisoner in his custody, by self, (or if the judgment were in C. P. say, " in the court of virtue of a ca- our said lord the king, before the Right Honourable Sir James pias ad satis faciendum. (a) Mansfield, Knight, and his companions, then his said Majesty's Justices of the Bench at Westminster in the county of Middlesex,) by the consideration and judgment of the same court, recovered(b) against one E F, a certain debt(c) of —/. and also -. costs, which in and by the same court were adjudged to the said A B, and with his assent for his damages, which he had sustained as well by occasion of the detaining of the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said E F was convicted, as by the record and proceedings thereof, still remaining in the same court of our said lord the king, of the Bench aforesaid, at Westminster aforesaid, will more fully appear; and the said A B further saith, that he the said A B, for having execution of the said judgment, afterwards, to wit, on, &c.(d) in the year of the reign of our said lord the king, sued and prosecuted out of the said court of our said lord the king, at the Bench aforesaid, at Westminster aforesaid, a certain writ of our said lord the king, called a capias ad satisfaciendum. upon the said judgment against the said E F, directed to the sheriff of Essex, by which said writ our said lord the king commanded the said sheriff that he should take the said E F if he should be found in his bailiwick, and him safely keep, so that the said sheriff might have his body before our said lord

n. 10. When the sheriff has neglected to take the defendant in execution, the plaintiff should declare in case, in one count as for an escape, and in another for not taking the defendant.

(b) The judgment must be stated, 1 Saund. 37. but this concise mode of stating the recovery is sufficient. 1 Saund. 39. n. 4.

(a) See the precedents referred to 1 Saund. 37. and 38. n. 2. 2 Saund. 67. in 1 Saund. 37. n. 1. 7 Wentw. 503 to 507. and Com. Dig. Pleader, 2 W. 11. At common law, case was the only remedy against a sheriff for an escape of a prisoner in execution on final process, and that form of action must still be adopted when the escape is before final process, 2 Inst. 382. But the statutes, Westminster, 2. and 1 Rich. II. c. 12. give the action of debt against the sheriff or gaoler for an escape, to recover the sum for which a prisoner was charged in execution -and to which action of debt the statute of limitations cannot be pleaded,

(c) If the judgment was in assump. sit, see the next precedent.

(d) The teste of the capas ad satisfaciendum. The writ whether a testatum or non-omittas ca. sà. is to be set out verbatim.

next after

ད

(or if in For Escapes.

the king, at Westminster, on
C. P. say, "before his said Majesty's Justices at Westminster,
on — next following,") to satisfy the said AB the debt
and damages aforesaid, (or if in assumpsit, say, the dama-
ges aforesaid,") in form aforesaid recovered; and that the
said sheriff of Essex should have there that writ, which said
writ afterwards and before the delivery thereof to the said
sheriff of Essex, to be executed as is hereafter mentioned,
was duly indorsed, with a direction to the said sheriff, re-
quiring him to levy. besides sheriff's poundage, officer's
fees, and all other incidental expenses. And which said writ
so indorsed as aforesaid, afterwards and before the said return
thereof, to wit, on, &c.(e) at, &c. was delivered to the said CD,
who then and from thenceforth, until and at, and after the re-
turn of the said writ, was sheriff of Essex aforesaid, to be
executed in due form of law; by virtue of which said writ,
and of the said indorsement so made thereon as aforesaid, the
said CD so being sheriff of Essex, as aforesaid, afterwards,
and before the said return of the said writ, to wit, on, &c. last
aforesaid, and within the bailiwick of the said sheriff of Essex,
to wit, at, &c. aforesaid, took and arrested the said E F by his
body, and then and there by virtue of the said writ, and of the
said indorsement, so made thereon as aforesaid, had and de-
tained him in his custody, in execution for the said sum of —¿.
so indorsed on the said writ as aforesaid, besides sheriff's
poundage, officer's fees, and all other incidental expenses,
and kept and detained him in his custody, from thence until
the said CD, so being sheriff of Essex as aforesaid, afterwards,
to wit, on, &c. last aforesaid, at, &c. aforesaid, without the
leave or license, and against the will of the said A B, suffered
and permitted the said E F to escape and go at large, and the
said E F did then and there escape, and go at large whereso-
ever he would, out of the custody of him the said CD, (he
the said C D so then being sheriff of Essex as aforesaid; and
the said sum of. so indorsed on the said writ as aforesaid,
being then and still wholly unpaid and unsatisfied to the said
AB, to wit, at, &c. aforesaid, whereby an action hath accrued

* 149

(e) Any day about the time when the writ was delivered to the sheriff.