CIES. Her capture.

cer

1. ON POLI- aforesaid, on her said voyage, towards- - aforesaid (a). And that after wards and whilst the said ship or vessel was proceeding on. her said voyage, and before her arrival at aforesaid, to wit, on, &c. the said ship or vessel with the said goods on board thereof, as aforesaid, were on the high seas, to wit, at, &c. aforesaid (6), with force and arms, and in an hostile manner, captured, seized, and taken by The total loss. tain enemies of our lord the now king (c). And thereby the said goods then and there became and were wholly lost to the said E. F. (d) and never did arrive at, &c. aforesaid *(e). Of all which said several premises, the said C. D. afterwards, to wit, on, &c. at, &c. aforesaid had notice, and was then and there requested by the said A. B. to pay him the said sum of L.100, so by him insured as aforesaid, and which said sum of L.100, he the said C. D. then and there ought to have paid, according to the form and effect of the said policy of insurance, and his said promise and undertaking so by him made as aforesaid, to wit, at, &c. aforesaid.

[114] Notice to defendant.

2. On a wager on a horserace for a hunter's sweepstakes. (f)

If there be any doubt as to the interest, or as to the nature of the loss, other counts may be added, varying the statement, 2 Burr. 1188.; and in such case it seems unnecessary to set out the policy again in the second count which may refer to the first. An adjustment may be given in evidence under the general count, Park. 118.-Marshal, 634-637. -Add the counts for money paid, if there be a demand for general average, and for money had and received if the premium be recoverable, and the account stated.

For that whereas before and at the time of the making of the agree ment and the promise and undertaking of the said C. D. hereinafter next mentioned, a certain race for a Hunter's Sweepstakes, amounting

465.; loss by barratry, 2 Campb. 150. 3 B. and P. 23. 13 East. 304.

(a) The place of final destination. If there were any warranty the compliance with it should here be shewn, (d) The person interested.—A parMarshal. 588. If the policy were on tial loss may be given in evidence under freight, here insert, "and that the a count for a total loss, see Park. 399. freight of the said goods, in case of her Marshal. 729. [Vide Watson & al. v. Ins. arrival there, would have amounted to Co. of North America, 4 Dall. 283.] a large sum of money, to wit, the sum of L."

(b) 2 B and P. 153.

(c) As to the loss, see Marshall. 485. 2.Campb. 475, 620. 624. In stating the loss, the protest should be consulted, and such loss should be stated precisely as it can be proved, and it must appear to be within the terms of the policy, see Park. 398 to 403. and Marshal, 690. 692. 3 B. and P. 23. See the description of several losses, in 1 Went. 389 to

(e) If on freight, here insert, "and the said E. F. thereby lost and was deprived of the freight of the said goods and merchandize, so on board the said ship on freight as aforesaid, to wit, at, &c. aforesaid.

(f) As to horse-races and wagers thereon, see 4 T. R. 1-2 B. and P. 51. Wagers are in general legal, 3 T. R. 693. 1 Salk. 366 n. but such as militate against general policy, as a wager between voters, on the event

to a large sum of money, to wit, the sum of L., was about to be run

and it was then and

',

and also certain

2. ON WA

GERS.

[115]

over the *Nottingham course, to wit, at
there expected that a certain horse, called
other horses would run the said race over the said course, for the said
stakes; and thereupon heretofore, to wit, on, &c. at, &c. aforesaid, it
was agreed by and between the said A. B. and the said C. D. that if
the said horse, called, in running the said race, should beat the
said other horses which should run the said race, over the said course,
for the said stake, he the said C. D. should pay to the said A. B. the
sum of L., of lawful money of Great Britain; but that if the said
horse, called, should be beaten by any or either of the said
other horses which should run, as aforesaid, he the said A. B. should
pay to the said C. D. the sum of L.-, of like lawful money. And the Mutual promi-
said agreement being so made as aforesaid, afterwards, to wit, on, &c.
ses (g).
aforesaid, at, &c. aforesaid, in consideration thereof, and that the said
A. B. at the special instance and request of the said C. D. had then
and there undertaken, and faithfully promised the said C. D. to per-
form and fulfil the said agreement, in all things 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 agreement, in all things on his part and behalf to be performed and
fulfilled. And the said A. B, in fact saith, that after the making of Averments.
the said agreement, to wit, en, &c. at the Nottingham course aforesaid,
to wit, at &c, aforesaid, the said race, for the said stakes, was run between
the said horse, called and divers, to wit, other horses: and
did beat the said

that in running the said race, the said horse, called -
other horses so running, as aforesaid, whereof the said C. D. afterwards,
to wit, on, &c. at, &c. aforesaid, had notice; yet the said C. D. not re-
garding the said agreement, nor his said promise and undertaking so by
him made as aforesaid, but contriving and fraudulently intending, craf-

of an election, (1 T. R. 56.) [Vide Bunn v. Riker, 4 Johns. Rep. 426. Lansing v. Lansing, 8 Johns. Rep. 454. Viseher v. rates, 11 Johns. Rep. 23. Yates v. Foot, 12 Johns. Rep. 1. or on the event of a war (7 T. R. 535-1 T. R. 57.) or concerning the produce of any particular branch of the revenue, as of the hop-duties, ate void; (2 T. R. 610. -2 B. & P. 130.) Cricket, or a horserace, or a foot-race, against time, is a game within the 9 Ann. c. 14. s. 1. Wils 220.-2 Wils. 36. but a sum under L.10. won at cards is recoverable, 1.Esp, Rep. 235. [The insurance of tickets in lotteries authorized by a daw of the state, having been declared ille

gal by statute, it was held that the in-
surance of tickets in other lotteries
was against the policy of the law, and
void. Mount & Wardell v. Waite, 7
Johns. Rep. 434.] Wagers, prejudicial
to the interests or feelings of a third
person, as on the sex of a person, are il-
legal, Cowp. 729. [So, an action can-
not be maintained on, a wager that an
unmarried woman had had a child.
Ditchburn v. Goldsmith, 4 Campb. 152.]
nor is a wager on a point of law legal,
12 East. 247. [2 Campb. 408.]

(g) Where an agreement has been
stated, there seems to be no occasion.
for this statement, 2 New. Rep. 62;

2. ON WA

GERS.

[116]

tily and subtly to deceive and defraud the said A. B. in this behalf, hath not as yet paid the said sum of L.-, or any part thereof, to the said A. B. although often requested so to do; but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to wit, at, &c. aforesaid. (h)-[If the precise terms of the race or of the bet be doubtful, insert another special count, and add the counts for money had and received, and the account stated; the first, on the supposition of the defendant's having received the deposit money, and the latter to meet any admission of the debt.]

Trinity Term, 51 Geo. 3,

existence of a

Markham and Le Blanc.

next after

3. Feigned is, (to wit.) Be it remembered, that on sue to try the in this same term, before our lord the king at Westminster, comes A. modus in lieu B. by, his attorney, and brings into the court of our said lord of tithe (). the king, before the king himself, now here, his certain bill against C. D. being in the custody of the marshal of the Marshalsea of our said lord the king, before the king. himself, of a plea of trespass, on the case upon promises; and there are pledges for the prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, that is to say,, to wit, A. B. complains of C. D. being in the custody of the marshal of the Marshalsea of *our lord the now king, before the king himself. For that whereas, heretofore, to wit, on, &c. (i) at,

[117]

of the parties, with other proper averments of the events, on which the right of action depends.

(h) See the variety of precedents in Wentworth's Index, volume ii. In an action against the loser of a wager, it is necessary to state in the declaration,() When the whole issue need not the special circumstances, and the wa- be proved, see 3 Gwillim on Tithes. ger cannot be recovered from him un- 1229.der an indebitatus count, 6 Mod. 12912 Mod. 81. 3 Ley. 118. Carth. 338, Ld. Raym. 69. Salk. 23. 3 T. R. 704. But the stake may be recovered from the stakeholder upon a common count for money had and received, 6 Mod. 128.-12 Mod. 81. In the declaration against the loser mutual promises should be stated, and though it has been usual to allege that a discourse was had, &c. as in the case of feigned issues, (3 T. R. 693.) that form is un. necessary, and it is sufficient to state as inducement, the expectation of the event upon which the parties betted, and then to shew the agreement, &c.

(i) This day is not material. See Precedents of different feigned Issues, 1 Wentw. 120 to 140. and Index, vol. ii. and Feigned Issues in general, Vin. Abr. tit. Feigned Action, Com. Dig. tit. Chancery. Formerly, the feigned issue was more prolix than at present, see 2 Saund, 261, A feigned issue is in the nature of a wager (see the notes to the last precedent) between two or more parties, invented to ascertain a matter in dispute between them, and is either authorised by Act of Parliament or directed by the Court of Chancery, to try the existence of a modus as above, or of a petitioning creditor's

ED ISSUES.

&c. a certain discourse was had and moved by and between the said A. 3. ON FEIGNB. and the said C. D. wherein a certain question then and there arose, [whether for every acre of land within the parish of, &c. producing grass, whether mowed and made into hay, or taken by the mouth of cattle, there hath been from time whereof the memory of man is not to the contrary, paid by the occupier of such lands, to the vicar of the said parish for the time being, twopence per acre, in heu of all tithes of such hay or grass;] and in that discourse the said A. B. then and there asserted and affirmed, "that for every acre of land within the said parish of, &c. producing," c. same as the words in italics to the end :] which assertion and affirmation of the said A. B. the said C. D. then and there denied, and then and there asserted and affirmed the contrary thereof. And thereupon, afterwards, to wit, on, &c. at, &c. aforesaid, in consideration that the said A. B. at *the special instance and request [118] of the said C. D. had then and there paid to the said C. D. the sum of L.5, of lawful, &c. he the said C. D. undertook, and then and there faithfully promised the said A. B. to pay him the sum of L.10, of like lawful money, if for every, &c. (same as the words in italics.) And the said A. B. in fact says, that for every acre of land, &c. (same as in the words in italics, averring in the affirmative,) to wit, at, &c. aforesaid. Whereof the said C. D. afterwards, to wit, on, &c. at, &c. aforesaid, had notice, whereby he the said C. D. then and there became liable to pay, and ought to have paid to the said A. B. the sum of L.10(k). Yet

debt, or an act of bankruptcy, or the validity of a will, right of common, or any other fact; and when the venue is local, and a fair trial cannot be had in the proper county, the question may by feigned issue be tried in any other county, Skin. 44. The declaration usually commences with an allegation that a certain discourse was had, &c. but in some cases, as when a petitioning creditor's debt is to be tried, it is usual to begin with an inducement as follows, 1 Wentw. 138: "For that whereas before, and at the time of the making of the promise, and undertaking of the said C. D. hereinafter mentioned, a certain commission of bankruptcy had been and was issued against the said C. D., and thereupon afterwards and before the making of the said promise and undertaking, to wit, on, &c. at, &c. a certain discourse, &c. stating the wager to have been "whether at the time of the issuing of such commission the said C. D. was indebted to the said A. B. in VOL. II.

the sum of L.100, &c. [On a motion to
vacate a judgment entered on a bond
and warrant of attorney, on an allega-
tion of usury, if the fact be put in
doubt, a court of common law may, in
its discretion, award a feigned issue to
try the fact. Cook v. Jones, Cowp 727.
1 Taunt. 413. Wardell v. Eden, 2 Johns.
Cas. 258. Hewitt v. Fitch, 3 Johns. Rep.
250. 2 Johns. Cas. 280. 3 Johns. Rep.
139. So,, a feigned issue has been
awarded to try whether a bond and
warrant of attorney, on which judg-
ment had been entered, were forged.
King v.Shaw,3 Johns. Rep. 142. So, an is-
sue will be directed to try whether the
plaintiff in ejectment, had taken posses-
sion of more land than he had recovered
or not. Jackson & Ostrander v. Has-
brouck, 5 Johns. Rep. 366. 5 Burr 2673.
Vide Saunders v.Wright, 1 Taunt. 369.]

(k) In some precedents is here in-
serted, "and being so liable, he the said
C. D. then and there undertook and
faithfully promised the said A. B. te

M

3. ON FEIGN- the said C. D. not regarding his said promise and undertaking, but ED ISSUES. contriving, and fraudulently intending, craftily and subtly to deceive

and defraud the said A. B. in this behalf, hath not as yet paid the said sum of L.10, or any part thereof, to him the said A. B. (although often requested so to do); but hath hitherto wholly neglected and refused, and still neglects and refuses so to do. To the damage of the said A. B. of L., and therefore he brings his suit, &c. [N. B. The pleader framing the declaration, also frames the plea, and the award of venire, Plea thereto. as follows]-And the said C. D. by E. F. his attorney, comes and defends the wrong and injury, when, &c. and says, that the said A. B. ought not to have or maintain his aforesaid action thereof against him, because, he says, that though true it is that the said discourse was had and moved by and between the said A. B. and the said C. D. wherein the said question did arise as aforesaid, and that he the said C D., did undertake and promise, in manner and form as the said A. B. hath above in that behaif alleged. Nevertheless, for plea in this behalf, the said C. D. saith, that for every, &c. [negativing the first assertion in italics] in manner and form as the said A. B. hath above in that be[119] half alleged, and of this the said C. D puts himself upon the country,

4. On a parol submission to an award (2).

and the said A. B. doth the like; therefore, &c. (award of venire as in common cases.)

For that whereas before the making of the promise and undertaking of the said C. D. hereinafter next mentioned, certain differences had arisen and were then depending between the said A. B. and the said C. D. touching and concerning (m) certain books before then sold by the

pay him the said sum of L.10, upon re- may be joined with the demand on the

quest."

(See the precedents, 1 Went. 90 to 100 and vol. ii. index. 2 Rich. Prac. C. P. 137. Mod. Ent. 165, 1 Saund. 28. 8 T. R. 571.-There are early instances of the action of assumpsit on a parol submission, 1 Saund. 28. 8 T. R. 571. When the submission is by deed, the remedy is by debt or covenant, unless the award be made after the limited time, (3 T. R. 592;) [Vide Adams v. Frecman, 9 Johns. Rep 115.] Debt on a parol submission is frequently most advisable when the award is merely for the payment of money, and the whole sum is due; see a precedent in debt, 2 Saund. 61 127, 8. But if there be any other demand, more properly the subject of an action of assumpsit, which

award; or if the award were not merely for the payment of money, or for the payment of money by instalments, not all due, declare in assumpsit, 2 Saund. 62 b. 1 n. 5. Ld. Raym. 1040.-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.-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 Caine's Rep. 166.]

(m) Or, "divers sums of money due and owing from the said C. D. to the said A. B." But it seems not necessary to state the cause of dispute. See note 7.