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OR CANAL
CALLS.

for, &c. [here state the purposes of the act] the said money to be advanc- FOR ROAD ed at instalments of 25 per cent, at not less than six months' distance from each other, and the first call not to be sooner than six months from the then present time; and whereas the said defendant having so subscribed as aforesaid, afterwards, and after the passing of the said statute so made and passed in the year, &c. to wit, on, &c. at, &c. (venue) certain persons, to wit, &c. then and there respectively being commissioners for putting in execution the powers and authorities of the said first-mentioned act, given and granted, did, by virtue of the powers and directions of the said act, duly make a certain call for the payment of all instalments, viz. one instalment of 20 per cent. upon the sum of, &c. so subscribed by the said defendant as aforesaid, and the other sums of money subscribed for the purposes in the said act mentioned; and did then and there duly require the said defendant to pay the sum of, &c. (the same being the first instalment of and upon the said sum of, &c. so by him subscribed as aforesaid), on or before the day of, &c. to the said plaintiff, who at the time of the making of such call was, and from thence hitherto hath been, and still is, *the treasurer to the said commissioners, whereof the said de- [*392] fendant then and there had notice; and he, by reason of the premises, became and was liable to pay to the said plaintiff, as such treasurer as aforesaid, the said sum of, &c. being 20 per cent. on the said sum by him subscribed as aforesaid, whereby, &c. actio accrevit.

count.

And whereas also the said defendant, before the passing of the said Second first-mentioned act, and more than six months before the making of the call of money hereinafter next mentioned, at, &c. (venue) had subscribed to advance a certain other sum, to wit, &c. for the purposes aforesaid, and in manner aforesaid, and thereupon, after the passing of the said first-mentioned act, to wit, on, &c. at, &c. (venue) certain persons, to wit, the said, &c. then and there respectively being commissioners for putting into execution the powers and authorities by that act given and granted, did, by virtue of the said act, duly make a certain call for the payment of an instalment; that is to say, an instalment of 20 per cent. on the sum of, &c. so subscribed by the said defendant as aforesaid, and did then and there duly require the said defendant to pay the sum of, &c. on or before, &c. to the treasurer of the said commissioners; and the said plaintiff, who at the time of the making of such last-mentioned call was, and from thence hitherto hath been such treasurer, further saith, that no other instalment had been advanced, or call been made, in respect of the money so subscribed as last aforesaid, within six months next preceding the said day of, &c. of all which said premises the said defendant afterwards, to wit, on, &c. at, &c. (venue) had notice, according to the directions of the said act, by reason whereof, &c.-[Add indebitatus count, as ante, 53, also a count on an account stated.]

*IV. ON AWARDS.

[*395]

ON AWARDS.

[Usual commencement in debt for the sum in the award, not for the VOL. II.

40

On an

ON AWARDS.

award, where the submission was

(h).

penalty of the bond.]-For that whereas certain differences (i) having arisen and being depending between the said plaintiff and the said de

(i) As to the sufficiency of this, see supra, note.

(h) See the forms, post, 397, &c.-7 by arbitra- Wentw. Index, 514.-J. B. Moore, 674, tion bonds as to awards in general, and the remedies thereon, &c. see Tidd's Prac. 9th edit. 810 to 845.-3 Chit. Com. Law, 637 to 668.Watson on Awards.-Caldwell on Arbitrations. Kyd on Awards, and notes, ante, 241.-(Chit. Gen. Pract. vol. ii. 73 to 126) As to this declaration, and the action on awards in general, see the forms in assumpsit, and the notes, ante, 241, and the form and notes in 2 Saund. 61, 62. Id. 127, 8. 1 Saund. 163, 4.

As to who may sue on the award, where there are several parties to the submission, see 3 J. B. Moore, 674.-1 B. & B. 350, S. C.

Form of Remedy.-Debt lies on an award for the payment of money, whether the submission be by rule of court or by deed, or by writing without deed, or by parol. 2 Saund. 62 a, n. 5.-1 Sid. 452-3 B. & A. 57.-(2 Chitt. Gen. Pract. 123, 124.)But to maintain debt on the award, it is necessary that the whole of the money thereby directed to be paid to be due; and that the cause of the action be merely for non-payment of money, and not for the non-performance of any other act. 1 Hen. Bla. 547.-2 Saund. 62, n. 5.-Ld. Raym. 1040. And debt will not lie against executors or administrators on an award made in the deceased's life-time, unless the submission were under a seal, because the deceased might have waged his law. Cro. Eliz. 557, 600.-When the submission is by deed, with a penalty, and the award is made within a limited time, an action of debt lies upon the deed for the non-performance of the award, and that whether the award be for the payment of money, or the performance of a collateral act; 3 T. R. 529; and debt would lie on such deed for revoking it, 4 B. & C. 103. 6 D. & R. 113, S. C.

Where an award for the payment of money is made under bonds of submission, the party to whom the money is to be paid, may either bring an action upon the bond for not performing the award, or have an action of debt for the money, and declare up on the award itself.-Freem. Rep. 410, 415. -2 Stra. 923. It has been said, that when the demand is merely for money due on the award, it is in general more advisable to declare on the award as above, than on the bond, in order to avoid the delay and expense of a writ of inquiry, which is necessary when the action is on the bond, and the defendant suffers judgment by default. 6 East, 613.-Watson, 200.-But on the other hand, many advantages are gained by de. claring on the bond, especially in the proofs; and in the late case in 7 B. & C. 427-1 M.

& R. 222, S. C. which decided, that in debt on an award, the execution of the submission by all the parties must be proved. Bayley, J. observed, "I hope this decision will have the effect of inducing parties to declare on the arbitration bond. By declaring on the award, the plaintiff takes upon himself the onus of proving a mutual submission. By declaring on the bond, he transfers the burden of proof on the defendant, for it lies on the latter to discharge himself from the penalty by showing a performance of the conditions." Where the submission is by bond, and the award is to do some collateral act, or the submission has been revoked, debt on the bond is the only form of remedy.

Where the parties who had submitted dis putes to arbitration by mutual bonds by indorsement under seal,on the bonds of subinission made within the time limited for making the award, agreed, that the time should be enlarged to a future day; it was decided, that an action of debt on the bond would lie for non-performance of an award made after the original time had expired, but within such enlarged time; for such indorsement operated as a defeazance or further defeazance to the original bond. 3 D. & R. 446.-2 B. & C. 179; S. C. But if the indorsement had not been under seal, no action could have been maintained on the bond for non-performance of the award, 3T. R. 592, n. The remedy in the latter case would be in debt or assumpsit on the award, or assumpsit on the agreement. Watson on Awards, 202.

Covenant lies on a submission by deed for the non-performance of an award, or for the revocation of the deed, there being covenants in the deed to perform the award. 1 D. & R. 106.-5 B. & A. 507, S. C.—3 East, 266.--4 B. & C. 103.—6 D. & R. 113, S. C. On a judgment by default in covenant for the non-performance of an award, the Court will refer it to the Master to com. pute what is due for principal and interest on the award. Tidd, 9th edit. 471.

As to when assumpsit lies, see ante, 241, when matters are referred to arbitration without bond, and the arbitrators award a certain sum to be due, it may be recovered under a count on an insimul computassent. 1 Esp. Rep. 194.-Sed vide, Id. 377. (A) sum awarded to be due upon a parol submission, may be recovered under a count for the original claim, using the award as settling the amount of the claim. Allen v. Milner, 2 Tyrw. 418.

So in covenant on a lease an award is good evidence of the quantum of damages, Whitehead v. Tattersall, 1 Adol. & El. 491.)

Form of Declaration.-When the submission was by bonds, and the award is merely to pay money, the plaintiff may

fendant (k), the said plaintiff heretofore to wit, on &c. (date of deed) at, &c. (venue) *by a certain bond of arbitration (1), bearing date, to wit, the day and year aforesaid, became bound to the said defendant in a certain penal sum in the said bond mentioned; and the said defendant then and there, by a certain other bond of arbitration, bearing date, to wit, the day and year aforesaid, became and was bound to the said plaintiff in a certain penal sum in the same bond mentioned, which said bonds were respectively conditioned to (m) [here set out the substance of the condition, which may be thus] abide the award and determination of E.

either declare on the defendant's bond, without stating the condition (as in forms, post, 436. 1 Saund 168.-PI. A. 352.—3 J. B. Moore, 674;) or may set out the bond and condition, and the award and breach. It is best to adopt the former mode of declaring. (See per Bayley, J. 7 Bar. & Cr. 427; 1 Man. & Ryl. S. C.)

The notes to the form in assumpsit, ante, 241, will, for the most part, be here applicable. In debt on the award, it is necessary to state, by way of inducement, the nature of the differences that had arisen between the parties. The concise averment adopted in the above form, will suffice. 2 Saund. 62, n. 1. In some cases, however, it would, perhaps, be as well to state them more minutely, as in the form, post, 398. In such action, on the award, the mutual submission must be stated, 2 Saund. 62, note 1, though the mode of submission, as whether in writing or not, needs not be shown. Id. Where, however, the parties are bound by their submission in a different manner from what they would in general be liable, it is necessary to state the terms of that submission in that particular case. 2 Saund. 61, n.-7 T. R. 352.-1 B. & B. 350.-Watson on Awards, 205. The submission need not be stated at full length, but the substance and legal effect of it should be stated. It must be so stated as to correspond with and support the award, Show. 81. A profert of the deed is necessary, 8 T. R. 571. Where six partners entered into two bonds of submission to arbitration; in the one, three gave a joint and several bond to the other three, condition ed for the due performance of the award, and the three latter gave a similar bond to the three former. In the recital of the bonds, the differences were stated to be depending between the above bounden three and the above named three. In setting out the bond in the declaration, the differences were laid to be depending between the six parties collectively. It was held, this was no variance. 3 J. B. Moore, 674.-1 B. & B. 350, S. C.

It is sufficient to state so much of the award only as to entitle the plaintiff to his action. 2 Saund, 62 b, n. 5.-Ante, 243, n. b.-1 Burr. 280.-1 Salk. 72. It is safest to use the very words of the award. It will do to state, that "amongst other things," it was awarded, Lit. Rep. 312.-1

Leon. 72.

It must appear that the award was in form as well as in substance, made according to the submission; as if the submission be on the terms of the award, being in writing, and under the hand and seal of the arbitrator, it will not suffice to aver only that it was in writing; and an averment that the award was duly made would not cure the defect.-2 Marsh. 301, 308.-6 Taunt. 645, S. C.-3 M. & S. 512.-2 Saund. 62 b, n. 5.-Ante, 242.

So where time and place are fixed in the submission for the delivery of the award, it must be shown that the award was correct in those particulars.-Cro. Jac. 577—3 Mod. 331.-But where it is provided "that the award shall be made in writing, &c. ready to be delivered to the parties in difference, or such of them as shall require the same, on or before a certain day," it is sufficient to state that the arbitrator made his award without stating that it was ready to be delivered, although the precedents in common use contain this latter averment. 1 Saund. 327 b, n.-Watson, 207.

There is no occasion to make any profert of the award, and this, though it be under the hand and seal of the arbitrator, Styles, 459.

There is no occasion to state defendant had notice of the award, unless the submis. sion expressly require it. 2 Saund, 62, n. -Ante, 242.

Where money is awarded to be paid at a particular time and place, it does not appear to be necessary to state the attendance of the plaintiff at the place, or a demand by the plaintiff there. 2 B. & B. 233; but it is otherwise where money is awarded to be paid at a certain time and place, on a collateral thing being done by the plaintiff, as on giving a covenant, or the like, and in that case it must be alleged that the plain. tiff was ready at the place to perform his part of the award.-2 Chit. Rep. 40.-Watson, 208.

(k) What not a variance in description of parties to the deed, 3 J. B. Moore, 674. 1 B. & B. 350, S. C.-Supra, note.

() As to the statement of the mode of submission, see supra, note.

(m) The submission must be so stated as to correspond with and support the award. -Supra, note, 395 a.-Show. 81.

ON AWARDS.

ON AWARDS.

The

award.

[*397]

F. of, &c. an arbitrator indifferently elected and named, as well by (n) and on the part and behalf of the said defendant, as by and on the behalf of the said plaintiff, 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 in writing, under the hand of the said E. F. (o), and ready to be delivered to the said parties in difference, or such of them as should desire the same on or before, &c. And the said plaintiff 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. (date of award) at, &c. (venue) duly make and publish his award in writing subscribed with his own proper hand (p) 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, to wit, the day and year last aforesaid, and did thereby award and direct (q) that the said defendant should pay to the said plaintiff the sum of -7. [set out the award so far as relates to the payment of the money,] which, when paid, should be in full satisfaction or all claims and demands of the said plaintiff upon or against the said defendant for or in respect of the said matters in difference; and the said E. F. did thereby further award and direct that *the said plaintiff should pay [forty guineas] as and for the costs of that his award (r), and that the said defendant should, upon demand, repay to the said plaintiff, 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 defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) had notice (s). And although the said defendant did afterwards, to wit, on, &c. pay to the said plaintiff the said sum of —l. in the said award mentioned, yet the said defendant did not, on the said day in the said award in that behalf mentioned, pay to the said plaintiff the said sum of —l. 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 defendant was requested by the said plaintiff, to wit on, &c. appointed for the payment of the said sum of -. to wit, at, &c. (venue) aforesaid, whereby an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said sum of

(n) This is necessary, 2 Stra. 923.Saund. 6 g. note 2.-1 Burr. 278.

(0) This will depend on the terms of the bond, see 2 Marsh. 304.-6 Taunt. 645, S. C.-Ante, 395 a, note.

(P) As to this allegation see 2 Saund. 62 b. n. 5.-Ante, 395. note.-If required to be sealed or subscribed by the arbitrator, the averment must be accordingly.-2

Marsh. 301-6 Taunt 645, S. C. 3 M. &
S. 512.-Ante, 395, note.

(7) It is sufficient to show so much of the award only as to entitle the plaintiff to his action.-2 Saund. 62 b. n. 5-1 Burr. 280.-1 Salk. 72.—Ante, 395, note.

(r) Quære, if this be legal, 8 East, 13. (s) The reference to the award is unnecessary; and it is in general unnecessary

to state defendant had notice of it.

£-, parcel of the said sum above demanded (1).—[Add an indebitatus count in debt, on award, as ante, 89, also counts for money paid, and an account stated in debt, and common conclusions, as ante, 387.- When an interest count is useful, see 1 Gow, C. N. P. 18, 3 Campb. 468.]

ON AWARDS.

*For that whereas divers disputes, controversies, and differences having [*398] arisen and being depending between the said plaintiff and the said defendant on an of and concerning divers sums of money claimed by the said plaintiff to be award made purdue to him from the said defendant, and also of and concerning an agree- suant to a ment for the purchase by the said defendant from the said plaintiff of the Judge's lease, good-will, and fixtures of a certain house and premises, used as order (u.) a baker's shop, in W- street, in the county of M. the said plaintiff, to wit, in Trinity Term, in the year of the reign of our lord the now king, commenced an action at law in his majesty's court of King's Bench, at W. against the said defendant for the recovery from her of the said sum of money so claimed to be due to him as aforesaid; and the said plaintiff also, to wit, in Trinity Term aforesaid, commenced a suit in the High Court of Chancery against the said defendant to compel a specific performance of the said agreement, and which said action or suit, at the time of making the order hereinafter mentioned, was depending and undetermined, to wit, at, &c. and thereupon heretofore, to wit, on, &c. at, &c. (venue) by an order of the honorable Mr. Justice L― then being one of the justices of the said court of King's Bench, made in the said action, dated, &c. (the date) it was, amongst other things ordered (let the following correspond with the order), with the consent of the attornies on both sides in the said cause, that all matters in difference between the said parties thereto, should be referred to the award, order, arbitrament, final end and determination of G. H. esq. so that he should make and publish his award in writing, of and concerning the matters aforesaid, ready to be delivered to the said parties, or either of them requiring the same, on (w) or before the day of in the year, &c. and that the costs of the said action should abide the event of the said award to be made and published as aforesaid, and that the costs of the said references should be in the discretion of the said arbitrator, and that the said parties. did and should respectively in all things duly abide by, and perform the said award as therein directed; and that neither of the said parties should bring or prosecute, or cause to be brought or prosecuted, any writ of error, or file any bill in equity against the said arbitrator, or against each other; and the said plaintiff further saith, that by another order of the said Mr. Justice L afterwards, to wit, on, &c. to wit, at, &c. aforesaid, the time for the making of the said

[blocks in formation]

award was duly enlarged (x) until,

within a reasonable time, 3 M. & S. 147.
It is open to the parties to the agreement
to request the arbitrator to proceed within
a reasonable time, and if he neglect or re-
fuse, they may revoke his authority.

(x) In the statement of the enlargement
the precise day is immaterial. 1 Gow, C.
N. Pri. 6.-It was said by Le Blanc, J. 1
M. & S. 2, that the terms of the reference
ought never to render it necessary to have
a Judge's order to enlarge the time, but
that it ought to be left to the discretion of
the arbitrator alone, to do as he may re-

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