« ForrigeFortsett »
*" he the said 1 B ,'') was then and there, and from thence t. On Poli
cies. cominually afterwards, uniil 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 aforesaíd,(d) on her said voyage, towards, aforesaid.(e) And that ller capture. afterwards and whilst the said ship or vessel was proceeding on her said voyage, and before her arrival at aforesaid, to wit, Only &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, (f) with force and arms, and in a hostile manner, captured, seized and taken by certain enemies of our lord the now king (8) And thereby the said goods then and there beeame and were wholly lost to the said E F,(h) and never did The total loss.
(6) As to this averment, see Mar- voyage was to commence, 2 B. & P. shall, 587. &c. and quære if it be in 153. any case necessary, 2 East, 392. 4 (e) The place of final destination. East, 100. 1 Saund. 276. a. n. 2. If If there were any warranty, the comįhe interest be staterl, it should be al- pliance with it should here be shewn. leged, that the insured was inter: Marshall, 588. If the policy were on ested in the goods, not only at the freight, here insert, “and that the time of the Inss, but also at the time freight of the said goods, in case of of making the insurance, 2 B. & P. her arrival there, would have amount. 155. If the declaration state that ed to a large sum of money, to wit, two of three partners were inter- the sum of -1." ested, it will be no ground of non (5) 2 B. & P. 153. soit, 2 B. & P. 240. In a declara (5) As to the loss, see Marshall, tion on a policy on a foreign ship, not 588. In stating the loss, the protest the property of the king or of any of should be consulted, and such loss his subjects, there should be an aver should be stated precisely as it can be ment to that effect, in lieu of an aver- proved, and it must appear to be inent of interest, 2 East, 385. 392. 4 within the terms of the policy, see East, 396, 398. n. b. What is suffi. Park, 398 to 403. and Marshall, 591 to cient proof of interest in the ship, $ 596. 4 B. & P. 28. See the descripFast, 136.
tion of several losses, in 1 Wentw. (c) This seems preferable to the 389 to 465. allegation, that after the making, &c. (1) The person interested. A par5 T. R. 496.
tial loss may be given in evidence un. (1) The place from which the der a count for a total loss, see Park,
399. Marshall, 629.
I. On Pol. arrive at, &c. aforesaid.(0) Of all which *said several premicies. Notice to de. ses, the said C D afterwards, to wit, on, &c. at, &c. aforesaid, fendant. had notice and was then and there requested by the said A B
to pay him the said sum of 1001. so by him insured as aforesaid, and which said sum of 1001. he the said C D 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.
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 seenis 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 fraid, if there be a demand for general average, and for money had and received if the premium be recoverable, and the account stated.
2. On a wager on
a horserace for a hunter's sweep-stakes. (k)
For that whicreas before, and at the time of the making of the agreement and the promise, and undertaking of the said C D hereinafter next mentioned, a certain race for a hunter's sweepstakes, amounting to a large sum of money, to wit, the sum of -l. 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 event of a war, (7 T. R. 535. 11. R. the said E F thereby lost and was 57.) or concerning the produce of any deprived of the freight of the said particular branch of the revenue, as goods and merchandise, so ou board of the hop duties, are void, (2 T. R.. the said ship on freight is aforesaid, 610. 2 B. & P. 130.) Cricket, or a. to wit, at, &c. aforesaid.
horse-race, or a foot-race against time, (k) As to horse-races and wagers is a game within the 9 Ann. c. 14. S. thereon, sce T. R. 1, 2 B. & P. 1. 1 Wils. 220.2 Wils. 36. but a 51. Wagers are in general legal, 3 sum under 102. won at cards is reco. T. R. 693. 1 Salk. 366. n. but such as verable. 1 Esp. Rep. 235. Wagers, jailitate against general policy, as a prejudicial to the interests or feelings wager between voters on the event of of a third person, as on the sex of a an election, (1. T. R. 56.) or on the person, are illegal, Cowp. 729.
should pay to the said A B the sum of --. of lawful mo- II. On Wa
gere. ney 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 B should pay to the said C D the sum of 1. of like lawful mo. Mutual pro
mise's. ney. 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 C D, had then and there undertaken, and faithfully promised the said C D to perform and fulfil the said agreement, in all things on his part and behalf to be performed and fulfilled; he the said C D 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 C D 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.(1) [If the precise terms of the ruce or of the bet be
(1) See the variety of precedents in In the declaration against the loser, Wentworth's Index, vol. 2. In an mutual promises should be stated, action against the loser of a wager, it and though it has been usual to allege is necessary to state in the declara. that a discourse was had, &c. as in the tion the special circumstances, and case of feigned issues, (3 T. R. 693.) the wager cannot be recovered from that form is unnecessary, and it is sufhim under an indebitatus count, 6 ficient to state as inducement, the exMod. 129. 12 Mod. 81. 3 Lev. 118. pectation of the event upon which Carth. 338. Ld. Raym. 69. Salk. 23. the parties betted, and then to shew 3 T. R. 704. But the stake may be the agreement, &c. of the parties, with recovered from the stakeholder upon other proper averments of the events a common count for money had and on which the right of action depends. received, 6 Mod. 128. 12 Mod. 81.
III.On Feigne question did arise as aforesaid, and that he the said. C D did éd Issues.
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 cascs.) * 80 4. On a parol For that whereas before the making of the promise and *unsubmission to an award. (1) dertaking of the said C D hereinafter next mentioned, cer
tain differences had arisen and were then depending between the said A B and the said CD, touching and concerning(0) certain books before then sold by the said CD, 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, (1) 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 90 to 100. and vol. 2. Index. 2 Rich. in assumpsit, 2 Saund. 62. b. 1. n. 5. Prae. Ç. P. 137. Mod. Ent. 165. 1 The declaration may either state or Saund. 28. & T. R. 571. There are omit the subject matter of the disearly instances of the action of as- pute, though it is more usual to state sumpsit on a parol submission, 1 it, 2 Saund. 61. b. n. 1. The assent Saund. 28. & T. R. 571. When the of a party to submit a matter to arsubmission is by deed, the remedy is bitration, is a sufficient consid eration, by debt or covenant, unless the even though he had no cause of acaward be made after the limited time, tion, 1 Leon. 103. 4 Leon. 31. (3 T. R. 592.) Debt on a parol sub (0) Or, “ divers sums of money mission is frequently most advisable due and owing from the said C D 10 when the award is merely for the the said A B." It is not necessary payment of money and the whole to state the cause of dispute. See sum is due; see a precedent in debt, note (n). 2 Saund. 61. 127, 128. But if there (D) Declarations on awards must be any other demand, more properly state a mutual submission. If the arthe subject of an action of assumpsit, tion were brought on an arbitration which may be joined with the de- bond, it is otherwise, for the defendmand on the award ; or if the award ant by praying oyer, shews that there were not merely for the payment of was a mutual submission, 2 Sauod money, or for the payment of money 61. b. n. 2. 9 Stra. 999,
said C D had then and there undertaken, &c.(9) the said C D I. On Pato perform and fulfil the award of the said E F, to be so made
rol awards. between the said A B 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 C D 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 *EF 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 C D, of and concerning the said differences,(?) and did thereby their and there award(1) that the said C D should, on, &e. pay to the said A B the sum of 1001. 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.(u) And although he the said C D afterwards, to wit, 08, &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 C D not regarding his said promise and undertaking, but contriving and fraudulently intending craftily and subtly lo 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 declaration, state more of the award mutual promises to observe the award, than is relative to his case, unless 11 Mod. 170.
where there is a condition precedent, (r) The award in pleading must performance of which must be averle stated to have been made agreca- redz. 2 Saund. 62. b. a. 5. i Burr. bly to the submission--as if the sub- 278. 1 Salk. 72. mission were, “ so tbat the award be (11) This averment is unnecessary; Toade in writing," &c. it must be sta- for one party is as much bound to take ted to have been su made, 2 Saund. notice of the award as the other, ur
less the stipulation be that the award (*) What is a sufficient allegation shall be notified to the parties, in that it was so made, see 2 Ventr. which case notice must be averred, 242. Kyd on Awards, 291.
2 Saund. 62. a. n. 4. (0) The plaintiff need not in a Vox. II
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62. n, S.