ON AWARDS. date heretofore, to wit, the day and year aforesaid, became bound to the defendant in a certain penal sum in the said bond mentioned; and the 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 upon 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 preferable 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 declaring on the bond, especially in the proofs; and in the case in 7 Bar. & Cres. 427; 1 Man. & 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 burthen of proof on the defendant, for it lies on the latter to discharge himself from the penalty by showing a perform. ance 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 Where the submission is by bond, and the award is to do some collateral act, or the submission has been revoked, debt on the bond is the only safe form of remedy. Where the parties who had submitted disputes to arbitration by mutual bonds by indorsement under seal, on the bonds of submission 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 nonperformance 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 Barn. & Cres. 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; 3 T. R. 592, note. 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, if there be a covenant in the deed to perform the award; 1 D. & R. 106; B. & A. 507, S. C.; 5 East, 266; 4 Barn. & Cres. 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 compute what is due for principal and interest on the award; Tidd, 9th edit. 571. As to when assumpsit lies, see ante, 176, 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. 113. 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 either declare on the defendant's bond, without stating the condition (as in forms, post; 1 Saund. 168; Plead. Assist. 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 Barn. & Cres. 427; 1 Man. & Ryl. S. C. The notes to the form in assumpsit, ante, 176, will for the most part be here applicable. In debt on the award, it has been supposed to be 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, note 1. In some cases, however, it would, perhaps, be as well to state them more minutely, as in the form, post. 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, need 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, note; 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 the 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, conditioned 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 boud 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 Šaund. 62 b, note, 5; ante; 1 Burr. 280; 1 Salk. 72. It is safest to use the very words of the award. It will suffice to state, that, "amongst other things," it was awarded, &c. Lit. Rep. 312; 1 Leon. 72. It must appear that the award was, in form as well as in substance, made according to ON AWARDS. defendant then by a certain other bond of arbitration, bearing date heretofore, to wit, the day and year aforesaid, became and was bound to the plaintiff in a certain penal sum in the same bond mentioned, which said bonds were respectively conditioned to (t) [here set out the substance of the condition, which may be thus,] abide the award and determination of E. F., of &c., an arbitrator indifferently elected and named, as well by (u) and on the part and behalf of the defendant, as by and on the behalf of the 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., (x) 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 plaintiff further saith, that the said E. F. having taken The award. upon himself the burthen of the said arbitration, did in due manner, and within the time for that purpose appointed, to wit, on &c. [date of award,] duly make and publish his award in writing subscribed with his own proper hand, (y) 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 (2) that the defendant should pay to the plaintiff the sum of £- [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 the plaintiff upon or against the defendant for or in respect of the said matters in difference; and the said 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. 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, note; Watson, 207. There is no occasion to make any profert of the award, and this, though it be under the band and seal of the arbitrator; Styles, 459. There is no occasion to state that the defendant had notice of the award, unless the submission expressly require it; 2 Saund. 62, note; ante, 177, note (a). Where money is awarded to be paid at a particular time and place, it does not appear (t) The submission must be so stated as (u) This is necessary; 2 Stra. 923; 2 Saund. 61 g, note 2; 1 Burr. 278. (x) This will depend on the terms of the bond; see 2 Marsh.304; 6 Taunt. 645, S. C.; ante, note (s). (y) As to this allegation, see 2 Saund. 62 b, note 5; ante, note (s). 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. & Sel. 512; ante, note (s). (z) It is sufficient to show so much of the award only as to entitle the plaintiff to his action; 2 Saund. 62 b, note 5; 1 Burr. 280; 1 Salk. 72; ante, note (s). ON AWARDS. E. F. did thereby further award and direct that the plaintiff should pay [forty guineas] as and for the costs of that his award, (a) and that the defendant should upon demand repay to the 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 defendant afterwards, to wit, on the day and year last aforesaid, had notice. (b) And although the defendant did afterwards, to wit, on &c., pay to the plaintiff the said sum of £ in the said award mentioned, yet the defendant did not on the said day in the said award in that behalf mentioned, pay to the plaintiff 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 defendant was requested by the plaintiff,) to wit, on &c., being the day and time so appointed for the payment of the said sum of £—. [Before the plending rules of Hil. T. 4 W. 4, reg. 5, prohibiting more than one count on the same cause of action, it was usual to add an indebitatus count in debt on an award, as ante, 65, an account stated, and sometimes an interest count; see 1 Gow, C. N. P. 18; 3 Campb. 468. Add an account stated, and common conclusion in debt, ante, . (c) On an award made pursuant to a judge's order. (d) For that whereas divers disputes, controversies and differences having arisen, and being depending between the plaintiff and the defendant of and concerning divers sums of money claimed by the plaintiff to be due to him from the defendant, and also of and concerning an agreement for the purchase by the defendant from the plaintiff of the lease, good-will and fixtures of a certain house and premises, used as a baker's shop, in Wstreet, in the county of M, the plaintiff heretofore, to wit, on the day of A. D.; commenced an action at law in her majesty's Court of Q. B., at W against the defendant for the recovery from her of the said sum of money so claimed to be due to him as aforesaid; and the plaintiff also, to wit, in Trinity Term aforesaid, commenced a suit in the High Court of Chancery against the defendant to compel a specific performance of the said agreement, and which said action or suit, at the time of making the The judge's or order hereinafter mentioned, was depending and undetermined. And thereupon heretofore, to wit, on &c., by an order of the Honourable Mr. Justice L—, then being one of the justices of the said Court of Q. B., 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 de der of reference. (a) Quære, if this be legal; 8 East, 13. (c) It has been holden, that arbitrators may (d) See the notes to the preceding form. See other forms, 5 Wentw. 336 to 354; 2 Mod. Ent. 219, 243, 259 to 269. Where there is a reference at Nisi Prius which is afterwards made a rule of Court, it is said an action lies on such rule; 1 Sid, 452; 3 Bar. & Ald. 57; ante, 295, notc. time. livered to the said parties, or either of them requiring the same, on (e) or ON AWARDS. 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 reference 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 plaintiff further saith, Order enlarging that by another order of the said Mr. Justice L- afterwards, to wit, on &c., the time for the making of the said award was duly enlarged (ƒ) until &c., as by such order, reference being thereto had, will more fully appear. And the plaintiff in fact says, that afterwards, and before the expiration of The award made, stating the said enlarged time for making the said award, to wit, on &c., [date of the same. award] the said G. H. in pursuance of the said orders, did make and publish his award, arbitrament, final end and determination, in writing, of and concerning the said premises, ready to be delivered to the said parties in difference, or such of them as should require the same, and bearing date heretofore, to wit, the day and year last aforesaid, and did thereby award, order and direct that [here set out the award for the payment of money] the The terms of defendant was justly and truly indebted to the plaintiff, in respect of his the award. claims in the said action as aforesaid, in the sum of £- and that the defendant should pay to the plaintiff or his order the sum of £&c.; (g) and the said arbitrator did thereby further find, that the aforesaid agreement between the parties relative to the aforesaid lease, good-will and fixtures, was not binding upon them, and the said arbitrator did therefore declare the same void accordingly; and the said arbitrator did award and declare, that the plaintiff had no claim or demand whatsoever against the defendant in respect or on account of the said agreement, and he did thereby order and award that the plaintiff should immediately cause his said suit against the defendant in the said Court of Chancery to be dismissed in due manner, with costs to be paid and sustained by himself. And the said arbitrator did also thereby further order and award the defendant forthwith to deliver up the possession of the said house and fixtures to the plaintiff, and that the defendant should, when required, and upon being duly indemnified by him the plaintiff in that respect, permit and suffer him to make (e) If no time be limited for making the award, the arbitrator is bound to proceed within a reasonable time; 3 M. & Sel. 147. It is open to the parties to the agreement to request the arbitrator to proceed within a reasonable time, and if he neglect they may revoke his authority. (f) 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. & Sel. 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 require; in that case there was a proviso in the judge's order, that the award should be made on or before a day certain; but that if the arbitrator should not - on then be prepared, that the time should be en- (g) If money due on a balance of accounts ON AWARDS. Award as to costs. Award of mutual releases. such use of his name, and do such other acts as he should be advised was and were necessary to be done by him to enable him to sue for and recover the rents then due and owing from any person or persons whomsoever, for or in respect of the said house and premises in aforesaid, or any part thereof, and which said rents the said arbitrator did thereby award and declare the plaintiff to be entitled to for his own use and benefit. And the said arbitrator did thereby award, order and determine that the costs of the said reference, and of that his award, should be borne, paid for, and sustained by the plaintiff and defendant in equal shares and proportions, upon payment of the said sum of £ and the due performance of that his award; and he did thereby further award, order and direct that the plaintiff and defendant should forthwith in due manner execute to each other a general release of all matters whatsoever in dispute and difference between them as aforesaid, up to the date of the said rule or order of the said —— day of, as by the said award, reference being thereunto had, will more fully and at large appear; of which said award the defendant afterwards, to The order of re- wit, on the day and year last aforesaid, had notice. (h) And the plaintiff further saith, that afterwards, to wit, on Wednesday next after the Octave of St. Martin, in Michaelmas Term, in the year aforesaid, it was duly ordered by the said Court, that the said first-mentioned order of the Honourable Mr. Justice L. should be entered and made a rule of the said Court. The costs taxed And the plaintiff further saith, that the costs of the said action afterwards, at £ ference made a rule of Court. Notice to defendant. Breach, nonpayment. ON BYE LAWS. Debt on a bye to wit, on the day and year last aforesaid, were duly taxed at a large sum of money, to wit, the sum of £. Of all which said premises the defendant afterwards, to wit, on the day and year aforesaid, had notice. Yet the defendant did not nor would on the said &c., or at any time before or since, although often requested so to do, pay to the plaintiff the said sum of £— in the said award mentioned, and the said sum of £, or any part thereof, but hath hitherto wholly neglected and refused, and still neglects and refuses, so to do. [Add an account stated and common conclusion in debt, as ante, 286. ON BYE LAWS. London, to wit.-The Royal College of Surgeons in London complain law for payment of Samuel Hunt, who has been summoned, &c. [see ante, 284.] For that of an annual sum made in pursuance of a charter granted to the College of Surgeons. (i) whereas his late majesty King George the Third, by his certain letterspatent under the great seal of England, bearing date at Westminster the 22d day of March, in the 40th year of his reign, and which said letterspatent, sealed as aforesaid, the said Royal College now bring here into (h) As to the notice of and reference to the award, see ante, 177, note (a). (i) This form was drawn by the author, and settled with great care by the then solicitor-general, Sir Vicary Gibbs, after examination of the form in 7 Wentw. 383, and several MS. forms; see also 1 Lut. 562; Thomp. Ent. 115, 120; 2 Mod. Ent. 225, 230; Lil. Ent. 153; 5 Wentw. 166 to 222; 7 Id. 501 to 503; 1 Wils. Rep. 281: 1 Hen. Bla. 370; 1 Burr. 235; 3 Burr. 1847; 1 B. & P. 100; 2 M. & P. 164. As to bye-laws in general, see Com. Dig. tit. "Bye Law," per totum; 2 Chit. Com. Law, 217 to 224. To secure an obedience to a bye-law, a pe Inalty should be annexed to the breach of it; 5 Co. 63 b; 3 Leon. 265. If the bye-law do not regulate the mode of recovering the penalty, an action of debt lies for it; I Rol. Ab. 366, C. pl. 3; but the bye law usually ordains that it shall be recovered by debt; 5 Co. 64 a; 1 Rol. Ab. 366, C. pl. 2; or that the chamberlain of London shall bring debt for it; id. ibid. But a bye-law "that none but freemen shall keep shop," cannot confine the action for the penalty to the portmote Court, where none but the sheriff or coroner (who must be freemen) can array a |