ON fendant, touching and concerning (n) certain books before then sold by the AWARDS. said defendant as the agent of and for the said plaintiff, to wit, at, &c. (venue). And thereupon for the putting an end to the said differences the said plaintiff and the said defendant, heretofore, to wit, on, &c. (date Mutual of submission or about it) at, &c. (venue) respectively (o) submitted thempromises. selves to the award of one E. F. to be made between them, of and con [*243] The award. Breach. cerning the said differences; and in consideration thereof, and that the said plaintiff, at the special instance and request of the said defendant had then and there undertaken and faithfully promised (p) the said defendant to perform and fulfill the award of the said E. F. to be so made between the said plaintiff and defendant of and concerning the said differences in all things therein contained, on the said plaintiff's part and behalf, to be performed and fulfilled, he the said defendant undertook, and *then and there faithfully promised the said plaintiff to perform and fulfill the said award in all things therein contained, on the said defendant's part and behalf to be performed and fulfilled. And the said plaintiff in fact saith, that the said E. F. having taken upon himself the burthen of the said arbitrament, afterwards, to wit, on, &c. (date of award or about it) at, &c. (venue) aforesaid, made his certain award (q) between the said plaintiff and the said defendant, of and concerning the said differences (r). and did thereby award (s) that the said defendant should, on, &c. pay to the said plaintiff the sum of 1007, in full satisfaction and discharge of the said matter in difference. Of which said award the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, had notice (t). And although he the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) was requested (u) by the The assent of a party to submit a matter to arbitration is a sufficient consideration, even though he had no cause of action. 1 Leon. 103-4 Leon. 31.-(Vide Shephard v. Watrous, 3 Caines' Rep. 166 (1).). As to how far the irregularity of the proceedings on the reference may be set up as a defense, see Watson on Awards, 222, denying the correctness of the law laid down in 2 Phil. Evid. 107. See also I R. & M. N. P. C. 17. (n) Or, "divers sums of money due and owing from the said defendant to the said plaintiff." But it seems 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. (0) Declarations on awards must state a (p) The mutual submission implies mu- 11 (q) The award in pleading must be stated to have been made agreeably to the submission-as if the submission were, "so that the award be made in writing," &c. it must be stated to have been so made. 2 Saund. 62, n. 3.-2 Marsh. 304. (r) What is a sufficient allegation that it was so made, see 2 Vent. 242.-Kyd on Awards, 291. (s) Here set forth the award in its legal effect or literal words. The plaintiff need not, in a declaration, state more of the award than is relative to his case. Where there is a condition precedent, which qualifies the terms of the award and the performance of it, it must be averred. 2 Saund. 62 b. n. 5.-1 Burr. 278.-1 Salk. 72. (Vide McKinstry v. Solomons, 2 Johns. Rep 57.) (t) This averment is in general unnecessary; for one party is as much bound to take notice of the award as the other, unless the stipulation be, that the award shall be notified to the parties, in which case notice must be averred. 2 Saund. 62 a, n. 4. (Sed vide 9 Mass. Rep. 198, 200. (u) Sometimes a request to perform the award is necessary; and in a late case, where an award directed that one of the parties to the submission should pay the expenses of the reference, and that the other should repay them on demand, and the party directed having paid them made an affidavit on debt (1) Mitchell v. Bush, 7 Cow. 187, and the cases there cited. ON said plaintiff to pay him the said sum of 100l., according to the tenor and effect of the said award, and his said promise and undertaking; yet the said AWARDS. defendant not regarding his said promise and undertaking, but contriving and fraudulently intending, craftily and subtly to deceive and defraud the said plaintiff in this behalf, did not, nor would on the day and year last aforesaid, or when he was so requested as aforesaid, or at any time afterwards (w), pay the said sum of (1007.), or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to wit, at &c. (venue) aforesaid.-[Add indebitatus count, as ante, 89, and counts on the plaintiff's original demand referred to arbitration—the account stated—and breach (x).] XII. ON JUDGMENTS. ON JUDG MENTS. maica For that whereas the said plaintiff, heretofore, to wit, at a supreme On a Ja court of judicature of our sovereign lord the king, *holden at [the town of judgment against the other party, alleging such payment, but not stating any demand of repay. ment, it was held this was not sufficient. 7 B. & Cres. 494. 1 M. & R. 324. S. C. (e) Let this breach deny the performance of the award in the words thereof. (x) It has been decided, that the award, when there is a parol submission, may in most cases be given in evidence under the common count founded on the original debt, or on the account stated. And it is no bar to such action, that it only settles the amount of claim, Allen v. Milner, 2 Cromp. & Jerv. 47. 3 Tyr. 113; 1 Price, P. C. 142; Peake C. N. P. 227.-1 Esp. Rep. 194. 377.-5 T. R. 6-Tidd's Prac. 9th edit. 834. (y) See other precedents, Doug. 4, note 2. An action will lie in one court on a judgment obtained in another; for a judgment pronounced by a court of competent jurisdiction, creates a debt all over the kingdom, Gilb. Debt, 392, 393. According to Martin v. Nicholls, 3 Simons, 458, and Becquet v. McCarthy, 2 B. & Adolp. 954, a foreign judgment is conclusive, unless on the face of it, the proceeding has been against law and reason. But see Frankland, v. McGusle, Knapp's Rep. in privy Council, 274 to 310. Form of remedy, &c.-Assumpsit or debt will lie here on a judgment of a court not of record, or on a foreign judgment. Doug. 1.4 T. R. 493. 3 Taunt. 85, n. or on an Irish judgment, whether before or since the Union, 6 B. & Cres. 411.-5 East, 473; or on a Scotch decree, obtained in absence against a native of Scotland, for a debt contracted in Scotland, Moo. & Pay. 663. 4 Bingh. 686. S. C. ante, vol. i. 89, 95. An action is not maintainable on a decree of a court of equity. 3 B. & A. 52 (1); and see ante, vol. i. 100. Debt is the usual and preferable form of action, unless there be anoth (y). er demand recoverable, only in assumpsit, [*244] Dougl. 5 Post. In action on a judgment, pronounced by an English court of record, the decision cannot be impeached. Doug. 5. And it should seem that the judgment of an inferior court in England, whether of record or not, is conclusive and incontrovertible between the same parties, upon the same subjectmatter, provided, upon the face of the proceedings, it appears to have been fairly and justly obtained. 2 Burr. 1009. 2 Bingh. 216.-1 Stark. Evid. 208; but see Dougl. 5. But the judgment of an inferior court may be controverted, where it appears the proceedings have been bad in law, as where a summons and attachment was issued against defendant at the same time, returnable at the same time, and to which the defendant never appeared. 3 B. & Cres. 772. 5 D. & R. 719, S. C.; and it seems that the judg. ment of an inferior court, though it cannot be controverted, may yet be avoided by proof that the cause of action did not arise within the jurisdiction of the court. Willes, 36, n.-Bingh. 213. sed query. As to the conclusive qualities of a foreign judgment, it seems, that if it be given in a court of competent jurisdiction on a question cognizable by the law of the country, and appear on the face of it to be consonant to the justice of the case, and be also conclusive by the law of the foreign country, it will be conclusive here also, upon the same question between the same parties. 1 Ves. 159.-2 Stra. 733.-2 Bing. 380.-4 B. & Cres. 637.-4 M. & S. 20; and unless the contrary be shown, the court will presume that the decision in a foreign court is consonant to the justice of the case. 3 Bing. 353. If it appears on the face of the proceedings that the judgment is founded in injustice, (1) An action at law is maintainable in Pennsylvania upon a decree of a Court of Equity of a sister state for the payment of money. Evans, adm. v. Evans, 9 Serg. & Rawle, 252. MENTS. ON JUDG- St. Jago and La Veza,] in and for the island of Jamaica, and within the jurisdiction of the said court, to wit, at, &c. (venue) in this action, heretofore, to wit, on, &c. (day of judgment, or about it) before the honorable –, chief judge of the said court, and his associates, then sitting judges of the same court, by the consideration and judgment of the same court, recovered against the said defendant, (by the name and addition of, &c.) [*245] [as in *the judgment, and then set out the judgment, which may be as follows:- As well a certain sum of money, to wit, (1024l. 14s. 7 1-2d.) current money of the said island of Jamaica, with interest on 8291. 9s. 5d. current money of the said island, from the 10th day of April then next ensuing, for their damages which they had sustained by and on occasion of the non-performance of certain promises and undertakings before that time made by the said defendant to the said plaintiff as also the sum of 141. 14s. current money of the said island, for his costs and charges by him about his suit in that behalf expended, to the said plaintiff, by the said court there, of their own assent adjudged, whereof the said defendant was convicted, which said judgment still remains in that behalf in full force and effect not in any wise satisfied, reversed, or annulled, to wit, at, &c. (venue) aforesaid; and the said plaintiff in fact says, that no execution hath as yet been obtained of or upon the said judgment, and that the damages, cost and charges aforesaid, in form aforesaid recovered, are of great value, to wit, of the value of -l. of lawful money of Great Britain, to wit, at (venue) aforesaid; by means of which said several premises the said defendant then and there became liable to pay to the said plaintiff the said last-mentioned sum of money, when he the said defendant should be thereunto afterwards requested; and being so liable, and the said lastmentioned sum of money being and remaining wholly due and unpaid, he the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said last-mentioned sum of money, when he the said defendant should be thereunto afterwards requested.-[Add counts for the original debt for which the judgment was recovered, account stated, and usual breach.] On a For that whereas heretofore, to wit, on, &c. (date of decree, or about it) as where defendant was not summoned and did not appear, such judgment would not be conclusive. 9 East, 192.-1 Campb. 63. -1 Stark. 125. Declaration -It is necessary to set forth with certainty the parties to the judgment, and the Term in which it was recovered. Com. Dig Pleader, 2 W. 12 And if the judgment was given in the Common Pleas, or an inferior court, it is advisable to state the names of the judges and suitors, id. ibid. Carth 86-2 East, 362. The omission of this will be aided by verdict, id. ibid. The plaintiff need not show the ground of the judgment, and any matter which affects its validity must be insisted upon by the defendant, Dougl. 1. It is unnecessary to allege that the judgment remained unsatisfied, 1 Saund. 330, note 4. It is expedient to add counts for the debt upon which the judgment was founded, that the plaintiff may be enabled to recover upon these, if the judg ment should be impeached with success. Pica-Though the plaintiff should erroneously or unnecessarily conclude the statement of a judgment which is not matter of record or a foreign judgment with a prout patet per recordum, the defendant cannot plead nul tiel record, and the erroneous conclusion must be rejected as surplusage. Doug. 1. And although since the Union, the plea of nul tiel record, concluding to the country, has been adopted to an action of assumpsit, on an Irish judgment, 5 East, 473, 9 Price, 1, yet since the decision in 4 B. & Cres. 411, the correctness of such a plea seems more than questionable, for an Irish judgment is no record here (1). () That assumpsit lies, see 1 M. & P. 663.-4 Bingh. 686. S. C. and see the notes, ante, 243 a. (1) As to the plea of the statute of limitations in actions upon foreign judgments, see Richards v. Bickley, 13 Serg. & Rawle, 495, and the New York cases there cited. MENTS. a certain decree was made and pronounced in and by the court of our ON JUDGlord the then king before the Lords of Council and Session at Edinburgh, in that part of the United Kingdom of Great Britain and Ireland, called Scotland, to wit, at, &c. (venue in this action) in and concerning a certain action then depending in the same Court, at the instance of J. S. and R. S. before they became bankrupts, against the said defendant, whereby the Lords of Council and Session aforesaid, did then and there decree and ordain the said defendant, to make payment to the said J. S. and R. S. before they became bankrupts as aforesaid, of a certain sum of money, to wit, the sum of (4471. 6s. 3d.) sterling money of Great Britain, and annual rent, that is to say, legal interest thereof, from a certain day, to wit, the (18th day of November, 1801,) and until payment, together with the sum of (501) of like sterling money, as the expense of process, besides the sum of (17. Os. 01-2d.) sterling money of Great Britain, being the full dues of extracting that decree, as by the said decree remaining in the Court of Session at Edinburgh aforesaid, more fully appears, which said decree remains in full force and wholly unsatisfied, whereby the said defendant became liable to pay to the said J. S. and R. S. before they became bankrupt as aforesaid, the said sums of money, so decreed to be paid as aforesaid, together with such interest as aforesaid, on the said sum of (4477. 6s. 3d.) according to the said decree, when he the said defendant should be thereunto afterwards requested. And being so liable, the said defendant, in consideration thereof, to wit, on, &c. (any day before the bankruptcy) to wit, at (venue) aforesaid, undertook, and then and there faithfully promised the said J. S. and R. S. before they became bankrupts as aforesaid, to pay them the said sums of money, so decreed to be paid as aforesaid, together with such interest as aforesaid, when he the said defendant should be thereunto afterwards requested.-[Add counts for the orignal debt, for which the decree was given, account stated, and breach.] XIII. FOR LEGACIES. For that whereas one E. F. heretofore, to wit, on, &c. (date of will, or about it) at, &c. (venue) by his last will and testament, in writing, did (amongst other things) give and bequeath unto plaintiff the sum of -l. (a) No action at law lies against an executor to enforce the payment of a pecunia. ry legacy, he acting as such, and retaining the sum in his hands as a trustee for the party entitled to receive it, 5 T. R. 690. Peake, 73-1 Sid. 45, 6.-1 Lord Raym. 23, 4 (1). The remedy of the legatee in such a case is in a court of equity. But the legatee of a specific chattel may recover it after the executor has assented to the bequest, 3 East, 120. And if the executor expressly promise (by writing, according to the Statute of Frauds,) to pay in respect of any new consideration, such as forbearance, or the like, the executor may, in that case, Toller, 465. See 1 Chit. Gen. Pract. 552. (1) Aliter in New York and Pennsylvania, where the action is given by statute. Dewit v. Schoonmaker, 2 Johns. 263. Wilson v. Wilson, 3 Binn. 559. EOR LEGACIES. Against an execupromise to pay a lega cy in con tor on a sideration of forbearance (a). LEGACIES. FOR if he the said plaintiff *should be living at the time of the said E. F.'s death, and of his said last will and testament [let this averment agree with the bequest] and made the said defendant one of the executors thereof, and the said E. F. afterwards, to wit, on the day and year aforesaid, at, &c. (venue) died without altering or revoking his said will, as to the said bequest; and the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, took upon himself the burden of the execution of the said will: and the said plaintiff further says, that divers goods and chattels of the said E. F. of great value, to wit, of -. afterwards, to wit, on the day and year aforesaid, at &c. (venue) came to the hands and possession of the said defendant to be administered, which said goods and chattels were more than sufficient to pay the just debts and legacies, and funeral expenses of the said E. F. and the charges of proving the said will, to wit, at, &c. (venue) aforesaid, of all which said several premises the said defendant then and there had notice; by reason of which said premises the said defendant then and there became liable to pay to the said plaintiff the said sum of -l. so bequeathed by the said E. F. as aforesaid; and being so liable, he the said defendant, in consideration thereof, and that the said plaintiff, at the special instance and request of the said defendant would [here state the consideration and promise, according to the fact, and which may be thus,] forbear to proceed against [*247] the said defendant *for recovery of the said sum of -l. so bequeathed as aforesaid, for six months then next following, he the said defendant undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of -7. so bequeathed by the said E. F. as aforesaid; and the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, so made as aforesaid, did [here state the plaintiff's performance of the consideration, which may be thus,] forbear and give time to the said defendant for the payment of the said sum of -., for upwards of six months after the making of the said promise and undertaking of the said defendant, to wit, at, &c. (venue) aforesaid whereof the said defendant afterwards, to wit, on, &c. there had notice; and thereby, and according to the tenor and effect of the said promise and undertaking, he the said defendant became liable to pay to the said plaintiff the said sum of -l. when he the said defendant should be thereunto afterwards requested.[Add money counts, account stated, and breach.] XIV. FOR CONTRIBUTIONS TO PARTY-WALLS. For that whereas, after the making of a certain act of parliament made and passed in the 14th year of the reign of our sovereign lord the late plaintiff a release, but did not pay the in the declaration, that the defendant had assets at the time of the promise, 9 Co. 94. -2 Saund. 137 c.-1 Saund. 210 n. See 2 Chit. Gen. Pract. 466, 467, 498, 499, as to the excellent and summary remedy for a pecuniary legacy in the court of Arches. (b) See the notes, ante, 54: Chit. Col. Stat. vol. i. 127, see other forms, 1 Wentw. 184.-3 Id. 682, and post. It should seem |