AWARDS. said C. D. as the agent of and for the said A. B. at, &c. And there- 4. ON PAROL upon for the putting an end to the said differences, the said A. B. and the said C. D. heretofore, to wit, on, &c. at, &c. respectively, (n) 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 said C. D. had then and there undertaken, &c. (0) the said C. D. to perform and fulfil the award of the said E. F. to be so made *between the said A. B. and C. D. of. [⚫ 120 ] 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 E. F. having taken upon himself the burthen of the said arbitrament afterwards, to wit, on, &c. at, &c. aforesaid, made his certain award (2) between the said A. B. and the said C. D. of and concerning the said differences (g), and did thereby then and there award (r) that the said C. D. should, on, &c. pay to the said A. B. the sum of L.100, in full satisfaction and discharge of the said matters in difference. Of which said award the said C. D. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, had notice ($). And although he the said C. D. afterwards, to wit, on, &c. at, &c. was requested by the said A. B. to pay him the said sum of L.100, 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 to deceive and defraud the said A. B. in this behalf, did not, nor would when he was so requested as aforesaid, or at any time afterwards, pay the said sum of L.100, or any part thereof, to the said A. B. but hath *hitherto wholly [121] (n) 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. 923. (0) The mutual submission implies mutual promises to observe the award, 11 Mod. 170. (p) 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. (9) What is a sufficient allegation that it was so made, see 2 Ventr. 242. Kyd on Awards, 291. (r) The plaintiff need not, in a declaration, state more of the award than is relative to his case, unless where there is a condition precedent, which qualifies the terms of the award, and performance of which must be averred, 2 Saund, 62. b. n. 5. 1 Burr. 278. 1 Salk. 72. [Vide M'Kinstry v. Solomons, 2 Johns. Rep. 57.] (s) This averment is 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.] 4. ON PAROL neglected and refused, and still neglects and refuses so to do, to wit, at, AWARDS. 5. On a promise to pay the costs of an action within a week, in consideration of plaintiff staying proecedings. [122] &c. aforesaid. [Add counts on the plaintiff's original demand referred to arbitration-the account stated-and breach.] () For that whereas before the making of the promise and undertaking of the said C, D. hereinafter next mentioned, a certain action had been commenced and prosecuted by and at the suit of the said A. B. against the said C. D in the court of our lord the now king, before the king himself, for the recovery of a certain sum of money, to wit, the sum of L., then and at the time of the making of the promise and undertaking of the said C. D. hereinafter next mentioned, due and owing from the said C. D to the said A. B. (u). And which said action at the time of the making of the said promise and undertaking of the said C. D. hereinafter next mentioned, was depending in the said court, to wit, at, &c. aforesaid, whereof the said C. D. then and there had notice. And thereupon heretofore, to wit, on, &c. at, &c. aforesaid, in consideration of the premises, and that the said A. B. at the special instance and request of the said C. D. would cease to prosecute the said action, and would stay all further proceedings therein, (5) he the said C. D. undertook, and then and there faithfully promised the said A. B. to pay the costs of commencing and prosecuting the said action in a week then next following. And the said A. B. avers, that he confiding in the said promise and undertaking of the said C. D. did then and there cease to prosecute the said action, and hath thence hitherto stayed all further proceedings *therein; and that the costs of commencing and prosecuting the said action amounted to a large sum of money, to wit, the sum of L., of lawful, &c. whereof the said C. D. afterwards, to wit, on, &c. at, &c. had notice. And although a week from the time of the making the said promise and undertaking of the said C. D. hath long since elapsed, to wit, at, &c. aforesaid. Yet the said C. D. not regarding, &c. hath not as yet paid the said costs of commencing and prosecuting the said action, or any part thereof, (although he the said C. D. afterwards, and after the expiration of a week from the time of making his said promise and undertaking, to wit, on, &c. at, &c. afore (5) It is unnecessary to allege that the plaintiff promised to forbear. 10 Mass. Rep. 230. 237. ANCE OF DEFENDANT. said, was requested by the said A. B. so to do.) But he so to do hath 5. FORBEARhitherto wholly neglected and refused, and still doth neglect and refuse, to wit, at, &c. aforesaid. [Add a count on the original debtmoney paid the account stated-and the usual breach applicable to those counts only.] mise to pay tion of for [123] For that whereas one E. F. before and at the time of the making of 6. On a prothe promise and undertaking of the said C. D. hereinafter next men- the debt of a tioned, was indebted to the said A. B. in a certain sum of money, to third person, wit, the sum of L. of lawful, &c. (y) to wit, at, &c.; and there- in consideraupon heretofore, to wit, on, &c. at, &c. in consideration of the pre- bearance (x). mises, and that the said A. B. at the special instance and request of the said C. D. would forbear and give time to the said E. F. for the payment of the said sum of L, until the day of (z) he the said C. D. undertook, *and then and there faithfully promised (a) the said A. B. to pay him the said sum of L., on, &c. And the said A. B. avers, that he confiding in the said promise and undertaking of the said C. D. so made as aforesaid, did forbear and give time to the said E. F. for the payment of the said sum of L.— until the said to wit, at, &c. aforesaid; whereof the said C. D. afterwards, to wit, on the day and year last aforesaid, there had notice, and thereby and according to the tenor and effect of his said promise and undertaking, he the said C. D.. became liable to pay the said A. B. the said last-mentioned sum of L, on the said day of day of to wit, ât, &c. aforesaid.—[Add an account stated.] For that whereas heretofore, to wit, on, &c. at, &c. in consideration 7. On a prothat the said A. B. at the special instance and request of the said C. D. would deliver to him the said C. D. a certain horse of him the said (x) See precedents of these declarations, 2 Wentw. 405, &c. and index to ditto. (7) It is not necessary to state the subject matter of the debt, though some demand recoverable at law, or in equity, must be stated; ante, 121, n. u. It is better not to state it with unnecessary particularity, Peake's Rep. 117. (2) The mere promise of a third person to pay the debt of another, without a stipulation by the plaintiff to forbear, or some other new consideration, is not valid, 1 Saund. 211. a Com. Dig. Action on the Case on Assumpsit, B. 1, 2. [8 Johns. Rep. 39.] The promise of an heir, who has no assets by descent, to pay the debt of his ancestor in conside ration of forbearance, is not binding, 2 (a) Though the promise must, under mise to pay money in consideration of the exchange of horses. FOR HORSES. 7. PROMISE TO A. B. of great value, (6) in exchange (6) for a certain horse of him PAY MONEY the said C. D. he the said C. D. undertook, and then and there faithfully promised the said A. B. to deliver the said horse, of him the said C. D. to him the said A. B. and to pay him a certain sum of money, to wit, the sum of L.- of lawful money of Great Britain, in exchange for the said horse of the said A. B. And the said A. B. avers, that he confiding in the said promise and undertaking of the said C. D. did afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, deliver to the said C D. the said horse of him the said A. B. and al[124] though the said C. D. in part performance of his said promise and undertaking, did then and there deliver to the said A. B. the said horse of him the said C. D. în exchange for the said horse of him the said A. B. Yet the said C. D. not further regarding his said promise and undertaking, hath not (although often requested so to do) as yet paid to him the said A. B. the said sum of L.- , or any part thereof, but hath hitherto wholly neglected and refused, and still wholly neglects and refuses so to do, to wit, at, &c. aforesaid. [Add a count “for horses, mares, and geldings, bargained and sold," and, " for horses, &c. sold and delivered," and the account stated and breach.] 8. For not de livering a bill of exchange For that whereas heretofore, to wit, on, &c. at, &c. in consideration that the said A. B. at the special instance and request of the said C. in payment for D. would sell and deliver to him the said C. D. a certain quantity, to goods sold (c). wit, 100 sacks of malt, at a certain rate or price, then and there agreed upon between the said A. B. and the said C. D. to wit, at the rate or price of L., for each and every of the said sacks of malt, amounting in the whole to a large sum of money, to wit, the sum of L.of lawful money of Great Britain, he the said C. D. undertook, and then and there faithfully promised the said A. B. to pay him for the said malt by a good bill or bills of exchange, payable in four months from the delivery of the said malt (d) to him the said C. D. whenever (b) For the distinction between a sale and an exchange, see 2 Bia. Com. 446. 3 Salk. 157. (c) When goods are sold on a credit not elapsed at the time of declaring, and on the terms that the defendant should deliver a bill of exchange to the plaintiff, or accept a bill in his favour, it is necessary to declare specially for not delivering or accepting the bill, as in this precedent, 4 East. 147. 3 B. and P. 582. but if the credit be elapsed at the time of declaring, though after the writ issued, and after the first day of term, the plaintiff may recover on the common counts, the declaration being entitled specially of a day after the credit elapsed, 4 East. 75. As to when interest is recoverable, see 13 East. 98. (d) Sometimes the understanding is from the date of the contract; the contract must be described precisely according to the agreement of the parties. (6) Vide 10 Mass. Rep. 238. VERING A EXCHANGE. after such delivery, he the said C. D. should be thereto requested. 8. NOT DELIAnd the said A. B. in fact saith, that he, confiding in the said promise and undertaking *of the said C. D. did afterwards, to wit, on, &c, at, &c. aforesaid, sell and deliver the said quantity of malt to the said C. D. on the terms aforesaid. And although the said C. D. in part performance of his said promise and undertaking, afterwards, to wit, on, &c. at, &c. aforesaid, paid to the said A. B. by a certain bill of exchange, a part of the said price of the said malt, to wit, the sum of L.100; and although the said A. B afterwards and before the expiration of four months from the delivery of the said malt as aforesaid, to wit, on, &c. aforesaid, at, &c. aforesaid, requested the said C. D. to pay him the said A. B. the residue of the said price of the said malt, by such bill or bills of exchange as aforesaid; yet the said C. D. not regarding his said promise and undertaking, but contriving and wrong. fully and unjustly intending, craftily and subtly to deceive and defraud the said A. B. in that behalf, did not nor would when he was so requested as aforesaid, or at any time before or afterwards, pay the said A. B. the residue of the said price of the said malt or any part thereof, by a good bill or bills of exchange, payable in four months from the delivery of the said malt as aforesaid, or otherwise howsoever, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do; and by reason thereof, he the said A. B. hath lost and been deprived of the use and benefit of the bill or bills of exchange, which he the said C. D. ought to have delivered to the said A. B. as aforesaid, to wit, at, &c. aforesaid.[If there be any doubt as to the terms of the contract, add another, special count, stating the facts as they will probably be proved. Add one count for goods bargained and sold—another for goods sold and delivered-money had and received-and the account stated.] For that whereas heretofore, to wit, on, &c. at, &c. in consideration 9. On a prothat the said A. B. at the special instance and request of the said mise to be C. D. would sell and deliver to *one E. F. on credit, all such goods for goods sold (e) Whenever the defendant is collaterally liable to pay for goods, &c. furnished to a third person, (for the criterion [Vide Leonard v. Vredenburgh, 8 Johns. Rep. 29] of which, see 2 T. R. 80, 1) his undertaking must be in writ. ing under the 29 Car 2. c. 3. s. 4, and must state the consideration of the defendant's undertaking, [Vide Simpson v. Patter, 4 Johrs. Rep. 422. Jackson v. Rayner, 12 Johns. Rep. 291. & Cranch, 235. 5 Mass. Rep. 301.] 5 East, 10. 1 Saund. 211. a., and the declaration must be special as above, and not merely for accountable to a third per- |