cies. "he the said B,") was then and there, and from thence I On Policontinually afterwards, until and at the time of the loss hereafter mentioned, interested in the said goods in the said policy of insurance and memoranda mentioned, to a large value and amount, to wit, to the value and amount of all the monies by him ever insured or caused to be insured thereon, to wit, at, &c. aforesaid.(6) *And the said A B in fact further saith, that Ship sails. heretofore, to wit, on, &c.(c) the said ship or vessel, with the said goods on board thereof, departed and set sail from — aforesaid,(d) on her said voyage, towards, aforesaid. (e) And that Her capture. afterwards and whilst the said ship or vessel was proceeding on her said voyage, and before her arrival at aforesaid, to wit, *74 on, &c, the said ship or vessel with the said goods on board thereof, as aforesaid, were on the high seas, to wit, at, &c. aforesaid,(ƒ) with force and arms, and in a hostile manner, captured, seized and taken by certain enemies of our lord the now king.(g) And thereby the said goods then and there became and were wholly lost to the said E F,(h) and never did The total loss. 4 (6) As to this averment, see Marshall, 587. &c. and quære if it be in any case necessary, 2 East, 392. East, 400. 1 Saund. 276. a. n. 2. If the interest be stated, it should be alleged, that the insured was inter ested in the goods, not only at the time of the loss, but also at the time of making the insurance, 2 B. & P. 155. If the declaration state that two of three partners were interested, it will be no ground of nonsuit, 2 B. & P. 240. In a declaration on a policy on a foreign ship, not the property of the king or of any of his subjects, there should be an averment to that effect, in lieu of an averment of interest, 2 East, 385. 392. 4 East, 396, 398. n. b. What is sufficicat proof of interest in the ship, 4 East, 136. (c) This seems preferable to the allegation, that after the making, &c. 5 T. R. 496. voyage was to commence, 2 B. & P. (e) The place of final destination. (f) 2 B. & P. 153. (g) As to the loss, see Marshall, 588. In stating the loss, the protest should be consulted, and such loss should be stated precisely as it can be proved, and it must appear to be within the terms of the policy, see Park, 398 to 403. and Marshall, 591 to 596. 4 B. & P. 28. See the descrip、 tion of several losses, in 1 Wentw. 389 to 465. (h) The person interested. A partial loss may be given in evidence un(d) The place from which the der a count for a total loss, see Park, 399. Marshall, 629. cies. Notice to defendant. I. On Poli- arrive at, &c. aforesaid.(i) Of all which *said several premises, the said C D afterwards, to wit, on, &c. at, &c. aforesaid, had notice and was then and there requested by the said A B to pay him the said sum of 100. so by him insured as aforesaid, and which said sum of 1007. he the said CD then and there ought to have paid, according to the form and effect of the said policy of insurance, and his said promise and undertaking so by him made as aforesaid, to wit, at, &c. aforesaid. 2. On a wager on a horserace for a hunter's sweep-stakes. (k) * 76 If there be any doubt as to the interest, or as to the nature of the loss, other counts may be added, varying the statement; and in such case it seems unnecessary to set out the policy again in the second count which may refer to the first. An adjustment may be given in evidence under the general count, Park, 118. Marshall, 544. 588, 589. Add the counts for money paid, if there be a demand for general average, and for money had and recei ved if the premium be recoverable, and the account stated. For that whereas before, and at the time of the making of the agreement and the promise, and undertaking of the said CD hereinafter next mentioned, a certain race for a hunter's sweepstakes, amounting to a large sum of money, to wit, the sum of. was about to be run over the Nottingham course, to wit, at- " and it was then and there expected that a certain horse, called and also certain other horses would run the said race over the said *course, for the said stakes, and thereupon heretofore, to wit, on, &c. at, &c. aforesaid, it was agreed by and between the said A B and the said C D, that if the said horse, called in running the said race, should beat the said other horses which should run the said race, over the said course, for the said stake, he the said CD (i) If on freight, here insert," and the said E F thereby lost and was deprived of the freight of the said goods and merchandise, so on board the said ship on freight as aforesaid, to wit, at, &c. aforesaid. (k) As to horse-races and wagers thereon, see 4 T. R. 1. 2 B. & P. 51. Wagers are in general legal, 3 T. R. 693. 1 Salk. 366, n. but such as militate against general policy, as a wager between voters on the event of an election, (1 T. R. 56.) or on the event of a war, (7 T. R. 535. 1 T. R. 57.) or concerning the produce of any particular branch of the revenue, as of the hop duties, are void, (2 T. R.. 610. 2 B. & P. 130.) Cricket, or a horse-race, or a foot-race against time, is a game within the 9 Ann. c. 14, s. 1 Wils. 220. 2 Wils. 36. but a sum under 10% won at cards is recoverable. 1 Esp. Rep. 235. Wagers, prejudicial to the interests or feelings of a third person, as on the sex of a person, are illegal, Cowp. 729. 1. gers. mises. should pay to the said A B the sum of. of lawful mo- II On Waney of Great-Britain; but that if the said horse called should be beaten by any or either of the said other horses which should run, as aforesaid, he the said A B should pay to the said CD the sum of -. of like lawful mo- Mutual proney. And the said agreement being so made as aforesaid, afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration thereof, and that the said A B, at the special instance and request of the said CD, had then and there undertaken, and faithfully promised the said CD to perform and fulfil the said agreement, in all things on his part and behalf to be performed and fulfilled; he the said CD undertook, and then and there faithfully promised the said A B to perform and fulfil the said agreement, in all things on his part and behalf to be performed and fulfilled. And the said A B in fact saith, that after the making of the said agreement, to wit, on, &c. at the Nottingham course, aforesaid, to wit, at, &c. aforesaid, the said race, for the said stakes was run between the said horse called ——, and divers, to wit, other horses; and that in running the said race, the said horse called, did be at the said other horses so running, as aforesaid, whereof the said C D afterwards, to wit, on, &c. at, &c. aforesaid, had notice; yet the said CD not regarding the said agreement, nor his said promise and undertaking so by him made as aforesaid, but contriving and fraudu lently intending, craftily and subtly to deceive and defraud the said A B in this behalf, hath not as yet paid the said sum of or any part thereof, to the said A B, although often requested so to do; but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to *wit, at &c. * 77 aforesaid.(!) [If the precise terms of the race or of the bet be (1) See the variety of precedents in Wentworth's Index, vol. 2. In an action against the loser of a wager, it is necessary to state in the declaration the special circumstances, and the wager cannot be recovered from him under an indebitatus count, 6 Mod. 129, 12 Mod. 81. 3 Lev. 118. Carth. 838. Ld. Raym. 69. Salk. 23. 3 T. R. 704. But the stake may be recovered from the stakeholder upon a common count for money had and received, 6 Mod. 128. 12 Mod. 81. In the declaration against the loser, éd Issues. III.On Feign 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 CD puts himself upon the country, and the said A B doth the like; therefore, &c. (award of venire as in common cases.) * 80 4. On a parol submission to an award. (2) For that whereas before the making of the promise and *undertaking of the said CD hereinafter next mentioned, certain differences had arisen and were then depending between the said A B and the said C D, touching and concerning(0) certain books before then sold by the said C D, as the agent of and for the said A B, at, &c. And thereupon for the putting an end to the said differences, the said A B and the said CD heretofore, to wit, on, &c. at, &c. respectively,() submitted themselves to the award of one E F, to be made between them, of and concerning the said differences, and in consideration thereof, and that the said A B at the special, &c. of the (n) See the precedents, 1 Wentw. by instalments, not all due, declare in assumpsit, 2 Saund. 62. b. 1. n. 5. The declaration may either state or omit the subject matter of the dispute, though it is more usual to state it, 2 Saund. 61. h. n. 1. The assent of a party to submit a matter to arbitration, is a sufficient consid eration, even though he had no cause of action, 1 Leon. 103. 4 Leon. 51. (a) Or, "divers sums of money due and owing from the said C D to the said A B." It is not necessary to state the cause of dispute. See note (n). (P) Declarations on awards must state a mutual submission. If the action were brought on an arbitration bond, it is otherwise, for the defendant by praying oyer, shews that there was a mutual submission, 2 Saund 61. h. n. 2. 2 Stra. 925, rol awards. *81 said CD had then and there undertaken, &c.(g) the said C D IV. On Pato perform and fulfil the award of the said E F, to be so made between the said AB and CD, of and concerning the said differences in all things therein contained on his part and behalf, to be performed and fulfilled, he the said CD undertook, and then and there faithfully promised the said A B to perform and fulfil the said award in all things therein contained, on his part and behalf, to be performed and fulfilled. And the said A B in fact saith, that the said *E F having taken upon himself the Lurthen of the said arbitrament, afterwards, to wit, on, &c. at, &c. aforesaid, made his certain award(r) between the said A B and the said CD, of and concerning the said differences,(s) and did thereby them and there award() that the said CD should, on, &c. pay to the said A B the sum of 100%. in full satisfaction and discharge of the said matters in difference, of which said award the said CD, afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, had notice.(z) And although he the said CD afterwards, to wit, on, &c. at, &c. was requested by the said A B to pay him the said sum of 1001. according to the tenor and effect of the said award, and his said promise and undertaking. Yet the said CD not regarding his said promise and undertaking, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said A B in this behalf, did not, nor would when he was requested as aforesaid, or at any time afterwards, pay the said sum of 501. or any part thereof to the (9) The mutual submission implies mutual promises to observe the award, 11 Mod. 170. (r) The award in pleading must be stated to have been made agrecably to the submission-as if the submission " were, so that the award be made in writing," Ste. it must be stated to have been so made, 2 Saund. 62. n. 5. (*) What is a sufficient allegation that it was so made, see 2 Ventr.. 242. Kyd on Awards, 291. declaration, state more of the award (2) This averment is unnecessary; () The plaintiff need not in a |