sum of money, to wit, the sum of L. of like lawful money, for the said C. D. and at his like special instance and request, and to be paid by the said *C. D. to the said A. B. when he the said C. D. should be thereunto afterwards requested, whereby, &c. [Same as the last, from the ↑ to the end.] COMMON COUNTS. [187] And whereas also, the said C. D. afterwards, to wit, on, &c. afore- Money had and received said, at, &c. aforesaid, had and received a certain other sum of money, (p). to wit, the sum of L."" of like lawful money, to and for the use of the said A. B. and to be paid by the said C. D. to the said A. B. when he the said C. D. should be thereunto afterwards requested, whereby, &c. [Same as above, from the † to the end.] And whereas also, the said C. D. afterwards to wit, on, &c. afore- Account stated (q). said, at, &c. aforesaid, accounted with the said A. B. of and concerning divers other sums of money, before that time and then due and owing, and in arrear, and unpaid, from the said C. D. to the said A. B. and upon that accounting, the said C. D. was then and there found to be . in arrear and indebted to the said A. B. in the further sum of L.of like lawful money, to be paid by the said C. D. to the said A. B. when he the said C. D. should be thereunto afterwards requested, whereby and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said last-mentioned sum of L.residue of the said sum above demanded. Yet the said C. D. (although often requested so to do,) hath not as Breach (†). yet paid the said sum of L.- (8), above demanded, or any part thereof, to the said A. B. But he to do this hath hitherto wholly refused, and still doth refuse. *To the damage of the said A. B. of L.————— therefore he brings his suit, &c. -(†), and [188] Pledges, &c. (p) Id. ibid. ed in the commencement of the decla (q) As to this count, see Aston's Ent. ration, being the aggregate of all the 209, 210. 2 Mall. 177. sums. See ante, 184, n. e. (r) For the different breaches when the action is brought by or against particular persons, as surviving partners, &c. ante, 84 to 109, and see the prece dents on bonds, post. (s) This is the same sum as mention (t) The sum here to be inserted is in general L.10. or any other sum, though less than the real demand.—If there be a demand for interest, insert a count for the same in debt, as ante, 81 ON AWARDS. 1. Declaration on an award, where the submission was by arbitration bonds (u). [* 189 ] The award. III. ON AWARDS, &c. For that whereas certain differences having arisen and being depending between the said A. B. and the said C. D., the said A. B. heretofore, to wit, on, &c. at,. &c. by a certain bond of arbitration, bearing date, &c. became bound to the said C. D. in a certain penal sum, in the said bond mentioned; and the said C. D. then and there by a certain other bond of arbitration, bearing date, &c. became and was bound to the said A. B. in a certain penal sum in the same bond mentioned, which said bonds were respectively conditioned to (x) abide the award and determination *of E. F. of, &c. an arbitrator indifferently elected and named, as well by (y) and on the part and behalf of the said C. D. as by and on the behalf of the said A. B. 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, 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 A. B. further saith, that the said E. F. having taking upon himself the burden of the said arbitration, did in due manner and within the time for that pur (u) See the precedents, 7 Wentw. Index, 514. As to this declaration, and the action on awards in general, see the precedent in assumpsit, and the notes, ante, 119, 120. and the precedent and notes in 2 Saund. 61 and 62. Id. 127, 8.-1 Saund. 163, 4. 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 1 Saund. 168.; or may set out the bond and condition, and the award and breach; or he may declare upon the award itself, as in the above precedent; in which latter case a mutual submission must be stated, though the mode of submission, as whether in writing or not, needs not be shewn, 2 Saund. 61. h. n. 2. 62. b. n. 5. 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. But in order to maintain debt on the award, it is necessary that the whole of the money thereby directed to be paid be due; and that the cause of 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. In the latter cases the deciaration must be on the bond. (x) Set out the substance of the condition. (y) This is necessary, 2 Stra. 923. 2 Saund. 61. g. note 2. 1 Burr. 278. pose appointed, to wit, on, &c. at, &c. duly make and publish his award on AWARDS. in writing (z), 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, &c.; and did thereby award and direct (a) that the said C. D. should pay to the said A. B. for, &c. [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 him the said A. B. upon or against the said C. D. for or in respect of the said matters in difference; and the said E. F. did thereby further award and direct that the said A. B. should pay forty guineas as and for the costs of that his award, (b) and that the said C. D. should upon demand repay to the said A. B. or to--, his solicitor, one moiety of such sum of forty guineas, and *that in all [* 190] 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 C. D. afterwards, to wit, on, &c. at, &c. had notice (b). And although the said C. D. did afterwards, to wit, on, &c. pay to the said A. B. the said sum of L.—, in the said award mentioned; yet the said C. D. did not, on the said day in the said award in that behalf mentioned, pay to the said A. B. 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 C. D. was requested by the said A. B. to wit, on, &c. appointed to the payment of the said sum of L.-, to wit, at, &c. aforesaid, whereby an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L.-, parcel of the said sum above demanded. [Add counts for money paid, and an account stated in debt, and common conclusion, ut ante, 186, 7.] For that whereas the said A. B. heretofore, to wit, in (2) As to this allegation, see 2 Saund. 62. b. n. 5. ante, 120. n. p. If required to be sealed, the averment must be accordingly. (a) It is sufficient to shew so much of the award only as to entitle the plaintiff to his action, 2 Saund. 62, b. n. 5. ante, 120, n. r.—) -1 Burr. 280.-1 Salk. 72. (b) Quare, if this be legal, 8 East. 13. (b) See ante, 120. n. s. (c) See the precedents referred to in 1 Saund. 37. n. 1. 7 Wentw. 503 to 507; and Com. Dig. Pleader. 2 W. 11. At common law, case was the only remedy against a sheriff for an escape of a prisoner in execution on final process, and term, in 2. Against a sheriff for the escape of a prisoner in his that form of action must still be adopt- custody, by ed when the escape is before final pro- virtue of a cacess, 2. Inst. 382. But the statutes, pias ad satisWestminster 2. and 1 Rich. 2. c. 12." 'faciendum (c). give the action of debt against the sheriff, or gaoler, for an escape, to recover the sum for which a prisoner was charged in execution, and to which action of debt the statute of limitations cannot be pleaded, 1 Saund. 37 and 38. n. 2.2 Saund. 67. n. 10. [See an ancient precedent, 3 Reeve's Hist. E. L. 61.] When the sheriff has neglected to take the defendant in execution, the plaintiff should declare in case, in one count as for an escape, and in another for not taking the defendant. [* 191 ] FOR ESCAPES. the year of the reign of our lord the now king, in the court of our said lord the king, before the king himself (or if the judgment were in C. P. say, "in the court of our said lord the king, before the Right Honourable Sir James Mansfield, Knight, and his companions, then his said Majesty's Justices of the Bench at Westminster in the county of Middlesex ;) by the consideration and *judgment of the same court, recovered (d) against one E. F. a certain debt (e) of L.—, and also L.- costs, which in and by the same court were adjudged to the said A. B. and with his assent for his damages, which he had sustained as well by occasion of the detaining of the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said E. F. was convicted, as by the record and proceedings thereof, still remaining in the same court of our said lord the king, before the king himself, (or in C. P. say "of the Bench aforesaid,") at Westminster aforesaid, will more fully appear; and the said A. B. further saith, that he the said A. B. for having execution of the said judgment, afterwards, to wit, on, &c. (ƒ) in the of the reign of our said lord the king, sued and prosecuted out of the said court of our said lord the king, before the king himself, (or in C. P. say "of the Bench aforesaid,"”) at Westminster aforesaid, a certain writ of our said lord the king, called a capias ad satisfaciendum, upon the said judgment against the said E. F. directed to the sheriff of Essex (g), by which said writ our said lord the king commanded the said sheriff that he should take the said E. F. if he should be found in his bailiwick, and him safely keep, so that the said sheriff might have his body before our said lord the king, at Westminster, on next after (or if in C. P. say "before his said Majesty's Jus [192] year tices at Westminster, on then next following,") to satisfy the said A. B. the debt and damages (h) aforesaid, (or if in assumpit, say," the damages aforesaid,") in form aforesaid recovered; and that the said *sheriff of Essex should have there that writ, which said writ afterwards and before the delivery thereof to the said sheriff of Essex, to be executed as is hereafter mentioned, was duly indorsed, with a direction to the said sheriff, requiring him to levy L.-, besides sheriff's poundage, officer's fees, and all other incidental expenses (i). And which said writ so indorsed as aforesaid, afterwards and before the (d) The judgment must be stated, (g) It may be described as issued to the sheriff, naming him, 2. Campb. 525. (f) The teste of the capias ad satis faciendum. The writ whether a testatum or nonomittas ca. sa. is to be set out verbatum. (h) If the writ be correctly described in substance, it will suffice "damages;" when the writ is damages and costs is (i) As on the writ. These are not leviable under a ca. sa., unless there was judgment for a penalty, or express authority for the levy by the defendant's agreement. said return thereof, to wit, on, &c. (k) at, &c. was delivered to the FOR ESCAPES. said C. D. who then and from thenceforth, until and at and after the return of the said writ, was sheriff of Essex aforesaid, to be executed in due form of law; by virtue of which said writ, and of the said indorsement so made thereon as aforesaid, the said C. D. so being sheriff of Essex, as aforesaid, afterwards, and before the said return of the said writ, to wit, on, &c. last aforesaid, and within the bailiwick of the said sheriff of Essex, to wit, at, &c. aforesaid, took and arrested the said E. F. by his body, and then and there by virtue of the said writ, and of the said indorsement, so made thereon as aforesaid, had and detained him in his custody, in execution for the said sum of L.-(1), so indorsed on the said writ as aforesaid, besides sheriff's poundage, officer's fees, and all other incidental expenses, and kept and detained him in his custody, from thence until the said C. D. so being sheriff of Essex as aforesaid, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, without the leave or licence, and against the will of the said A. B. suffered and permitted the said E. F. to escape and go at large, and the said E. F. did then and there escape, and go at large, wheresoever he would, out of the custody of him the said C. D., he the said C. D. so then being sheriff of Essex as aforesaid; and the said sum of L.-, so indorsed on the said writ as aforesaid, being then and still wholly unpaid and unsatisfied to the said A. B. to wit, at &c. aforesaid, whereby an action *hath accrued to the said A, B. to demand and have of and from the said C. D. the sum of L.-, above demanded; yet, &c. (Conclusion as ante, 187.) [ * 198 ] committed to -, (to wit.) A. B. complains of C. D. Esq. marshal of the 3. Against Marshalsea of our lord the now king, before the king himself, present of K. B. for the marshal here in court in his own person, of a plea that he render to the said the escape of A. B. the sum of L.—, of good and lawful money of Great Britain, a prisoner which he owes to, and unjustly detains from him. For that whereas his custody in the said A. B. heretofore, to wit, in Term, in the the reign of our lord the now king, in the court of our said king, before the king himself, the said court being then holden at Westminster, in the county of Middlesex, by bill without the writ of year of execution (m). lord the (k) Any day about the time when the writ was delivered to the sheriff. (1) Or "for the debt and damages aforesaid." (m) See the notes to the last precedent, which are here applicable. If the bill against the marshal be filed in the vacation, as is frequent, there should be a special memorandum, simiVOL. II. lar to that against an attorney, when T |