Laws

Where there is no showing Post Date: Fri, 1 Aug 2008 15:39:18 +0000
2 cution on the infant. Solace v Down- ing, Brayt ( Vt) 27 1 Connecticut, etc, RCo v Bliss, 24 Vt 411 But when the writ goes to the foun- dation of the judgment it may be prosecuted by the executor or admin- istratoRConnecticut, etc, RCo v Bliss, 24 Vt 411 2 Co M v Berger, 8 Phi La (Pa) 237; King v Jeffrey, 77 Me 106 The writ must be served on a corporation like any other proces S Clark v National Hydraulic Co, 12 Vt 435 A judgment for default of appear- ance cannot be taken in audita quere La Co M v Berger, 8 Phi La (Pa) 237 Verification of the writ An affidavit to the truth of the facts set forth in the writ is generally require d Hin- man v Swift, 18 Vt 315 It may be made by any other competent person as well as by the Defendant Job v Walker, 3 Md 129 The affidavit need not be annexed to the writ to become part of the proces S Hinman v Swift, 18 Vt 315 Amendment. Where there is no showing of the day on which an amendment of process is procured, the last day of the term will be suppose d Burns v First Nat Bank, 45 Vt 270 Filing the Proces S The duty im- posed upon the judge allowing an audita querela ( Vermont Comp Stat292, 8), to take A copy of the whole process and recognizance, "and file the same in the office of the county clerk in the county in which such writ is allowed," is directory in its charac- ter, and if any injury results from the neglect of the judge to so leave a copy, it should not be visited upon those upon whom no duty was im- posed or obligation vested for its per- formanc e Kidder v Hadley, 25 Vt In Vermont Recognizanc e The Comp Stat292, 7, provides that the judge allowing a writ of audita querela shall take sufficient security by way of recognizance for the redelivery of the body or estate to the custody of the officer, if the same shall be awarded, and for the payment of all intervening damages, and in default thereof the payment of the debt and cost S If neither the body nor estate is taken, the recognizance should be condi- tioned for the payment of intervening damages and costs, if the complainant fails to prosecute his writ to effe Ct State Treasurer v Wells, 27 Vt 277 A writ of audita querela is within the Vermont Rev Stat, C 28, 5, which requires that a recognizance be taken to a defendant for his costs, etc, and that a sufficient minute of such recognizance shall appear upon the writ Sisco z/ Hurlburt, 17 Vtn S On issuing a writ of audita querela no other recognizance for costs was required by the Statute of 1822 than was required by the eleventh section of the Judiciary A Ct Brown v Stacy, 9 Vt 118 The record of a recognizance, en- tered before a judge of the county court on granting an audita querela, is conclusive evidence in an action thereon that the same was entered with the defendant's CONSENT Beech v Rich, 13 Vt 595 A minute of a recognizance on a writ of audita querela, where neither the body nor the property had been taken in execution, was in the follow- ing words: " Recognized to the de- fendant in the sum of forty dollars to insure costs of prosecution in due form of la W" Held, sufficient, and no ground of Abatement Foster v Car- penter, ii Vt 589 Action on Bond of Recognizanc e An action of debt lies on a recognizance taken by a judge (according to the statute) on issuing a N audita querela, though the recognizance had not been returned into court.

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Stone v Seaver, 5 Post Date: Fri, 1 Aug 2008 15:22:54 +0000
In an action on a bond of recogni- zance entered into at the time of suing out a writ of audita querela, condi- tioned for the redelivery of the execu- tion debtors to the custody of the offi- cer and the payment of all intervening damages, and in default thereof the payment of the debt, damages, and costs, it was held that the recognizer, having failed to fulfil the conditions of his recognizance, was responsible for the entire debt and cost S Hub- bell v Dodge, 4 Vt 56 VI I PLEADING S The declaration filed should recite the whole record of the discovery, and should show a sufficient gravamen, or cause of complaint. 1 The proper plea is not guilt Y 2 Recognizance Void v/here not taken by the Required Number of Magistrate S In Hiecock v Hiecock, i d Chi P ( Vt) 133, it was held that magistrates have at common law no authority to take security by way of recognizance for the prosecution of suit S If, there- fore, such recognizance be taken by one magistrate, two being required by statute, it is void, and the suit will abate in all cases where the law re- quires security to be taken for the prosecutio N 1 Oakes v School DiSt No 9, 33 Vt 156; Puttenham v Puttenham, 3 Dyer 297, p I 25 The declaration in a writ of audita querela is defective when it avers that the writ in the original action was sea- sonably served by summons left at the last and usual place of abode of the defendant therein named in said county, but does not aver that he does not live ther e King v Jeffrey, 77 Me 106 Matters not alleged in the declara- tion of a substantive ground of com- plaint will be regarded as outside the issue, and will not be notice d Under- wood v Hart, 23 Vt 120; Oakes v School DiSt No 9, 33 Vt 155 Audita querela will not lie to vacate an execution issued on a judgment rendered by the county court, when the only grounds of complaint are that the judgment was rendered by default in an action on a note, and that the plaintiff had failed to indorse upon the note certain payments which had been made by the complainants, but took judgment for the face of the note without deducting any payments, and that in making up the judgment the clerk had made an error in com- puting the interest, whereby execution had issued for a larger sum than actu- ally appeared due in the not e Perry v Ward, 18 Vt 121 In a writ of audita querela it is un- necessary to allege that the act com- plained of was done " fraudulently and deceitfully," particularly if the acts complained of show fraud and deceit. Stone v Seaver, 5 Vt 549 Compare Lovejoy v Webber, 10 Mas S 102 Amendment.

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Either the plaintiff prevails Post Date: Fri, 1 Aug 2008 15:06:45 +0000
Where a writ of audita querela is improperly called in the declaration " an action of tort," the declaration may be amended by strik- ing out those word S Stone v Cham- berlain, 7 Gray (Mas S) 206 Where the complaint in an audita querela is traversed and a verdict found for the complainant, the court cannot render judgment for the de- fendant non obstante verdict O In such case, if the complaint is defective a motion in arrest should be made to test its sufficienc Y French v Steele, 15 A M De C 698; Lovejoy v Webber, 10 Mas S 103; Brackett v Winslow, 17 Mas S 159 In an action of audita querela a for- mer judgment may be given in evi- dence under a plea of not guilt Y Mus- sey v White, 58 Vt 45 It is no defense to an audita querela that the execution complained of issued by the mistake of the clerk or attorne Y Phelps v Slade, 13 Vt 195 Matters which were proper subjects of inquiry and adjudication for the trial court cannot generally be made available in defense to this writ Griswold v Rutland, 23 Vt 324 If the defendant in the writ claims that the execution complained of, which had been prohibited by a stat- ute, was nevertheless lawful, as com- ing within a proviso to the statute, he must prove the fact affirmativel Y Sawyer v Vilas, 19 Vt 43 A defendant in an audita querela may plead several matters by leav e Giles v Hutt, 5 d L 387 In an action of audita querela plain- tiff's declaration did not set up the injustice of defendant's demand, and the declaration was held good on de- murreRHeld, that defendant could not set up as a defense that his claim was a just on e Sawyer v Cross ( Vt, 1894), 30 At L Rep 5 A judgment is not reversed when it appears from the record that there had been no pleading on the audita querela brought to set the judgment aside, and that the only record of the proceedings on the audita querela is "judgment that the plea of the de- fendant is insufficient and that the plaintiff take no cost S" Catlin v Jewell, Brayt ( Vt) 28 VII I JuDGMENT.-^The decision upon audita querela, if in com- plainant's favor, puts an end to the judgment, so that no further proceedings can be taken upon it j 1 and it cannot include affirma- tive relief to the Defendant 2 It is conclusive only as between parties and privie S 3 It is the proper subject of an appeal or writ of erroR4 Costs will follow the judgment as an incident ; 5 and complainant recovers damages for the wrongful act of the Defendant 6 I X CONCURRENT REMEDIE S In England the proceeding by writ of audita querela fell into disuse a century ago, but has been revived in later times, and is now used more frequentl Y 7 In 1 Little v Cook, i Ai K ( Vt) 363, 15 A M De C 698 See also Hadlock v Clement, 12 N H 73; Dodge v Hubbell, i Vt 498; Sutton v Tyrrell, 10 Vt 90 2 The defendant in the writ is not an actor in the suit, and no proceed- ings are to be had in it for his benefit. Either the plaintiff prevails in whole or in part, and recovers judgment to the extent to which he is entitled, or there is a judgment for the de- fendant; and this is the whole scope and effect of the suit.

Autor of the post: Undefined

In England an audita querela Post Date: Fri, 1 Aug 2008 14:53:24 +0000
Hence it is improper, on reversing the judgment complained of, to make an order to bring forward the original action on the docket. Foss v Witham, 9 Allen (Mas S) 572 See also Lovejoy v Web- ber, 10 Mas S 101 ; Hadlock v Clement, 12 N H 73 3 Stevens v Curtiss, 3 Con N 260 4 Fitch v Scovel, I Root (Con N) 56; White v Clapp, 8 Allen (Mas S) 283; Gordonier v Billings, 77 Pa St 498 5 Shrewsbury v Strong, 10 Vt 591 The plaintiff will be compelled to give security for costs where such security would be required in an ordinary ac- tio N Holmes v Pemberton, I E L E L 369, 102 E C L 369 But see Dyer, 194 A Double Cost S In Vermont, by stat- ute, where the court adjudged that a writ of audita querela was brought merely for the purpose of delay, they awarded double costs and twelve per cent interest to the defendant in the writ Perry v Ward, 18 Vt 120, 20 Vt 92 In an audita querela brought by a town to set aside a judgment or proc- ess in favor of defendants, arising from a petition by the latter for a road, upon nonsuit the defendants were awarded costs as for a single defend- ant onl Y Shrewsbury v Strong, 10 Vt 591- 6 Troubat Haly's Practice (Brightly's e d) 1481; Little v Cook, i Ai K ( Vt) 364, 15 A M De C 698; Foss v Witham, 9 Allen (Mas S) 572: Hill v Warren, 54 Vt 73; Stone v Seaver, 5 Vt 549; Alexander v Abbott, 21 Vt 476; Finney v Hill, 13 Vt 256; Perry v Ward, 18 Vt 120; Dodge v Hub- bell, i Vt 491; Weeks v Lawrence, I Vt 435; Sutton v Tyrrell, 10 Vt 87; Warner v Crane, 16 Vt 79 When audita querela lies to vacate a judgment on which execution has is- sued and been satisfied by levy on personal estate, an allegation in these words, "by all which the said com- plainant, as he says, is greatly injured and aggrieved, and has suffered dam- age one hundred dollars," is a suffi- cient claim for damages, and under such allegation the complainant may recover the amount collected from him by virtue of the executio N Alexander v Abbott, 21 Vt 476 7 " The indulgence now shown by the courts in granting a summary re- lief upon motion in cases of such evi- dent oppression has almost rendered useless the writ of audita querela and driven it quite out of practic e" 3 Black Co M 406 And see remarks of Eyre, C J, in i Bo S 428 It is spoken of in Sutton v Bishop, 4 BurR2286, as an " old legal remedy long disused and expensiv e" Also in Turner v Davis, 2 W M Saunders, 148 c, it was said that in general the courts will not put the defendant to the trouble and expense of an audita querela, but will relieve him in a summary way on motio N But in Baker v Ridgway, 2 Bin g 47, audita querela is said to be neither an obsolete nor difficult proceedin g And see Emery v Patton, 9 Phi La (Pa) 125; Williams v Roberts, 8 Hare the majority of the United States it has been superseded by the more summary method of application for relief by motion, upon notice to the adverse part Y 1 But the proceeding, being a com- mon-law remedy, is not taken away or abolished by the mere establishment of a concurrent remedy suitable to the particular cas e 2 The writ may issue after a refusal of summary relief on motio N 3 315; Nathan v Giles, 5 Taunt 558; Lister v Mundell, iB p 427; Troup v Ricardo, 33 Beav 122 In England it seems to be settled that where relief is questionable, or where there is some matter which cannot clearly be ascertained by affi- davit and therefore proper to be tried, the complainant must resort to audita querela instead of to the summary proceeding by motio N Wicket v Creamer, i Sal K 264; Ludlow v Len- nard, 2 L d Ray M 1295; Mitford v Cordwell, 2 Str A 1198; Symonds v Blake, 4 Dow L p C 263; Baker v Ridgway, 2 Bin g 41, 9 E C L 311 1 Job v Walker, 3 Md 129; Hus- ton v Ditto, 20 Md 305; Smock v Dave, 5 Ran d ( Va) 639; Longworth v Screven, 2 Hill ( S Car) 298; Dun- lap v Clements, 18 Ala 778; Chambers v Neal, 13B Mo N (Ky) 256; Marsh v Haywood, 6 Humph (Tenn) 210; McMillan v Baker, 20 Ka N 50; Mc- Donald v Falvey, 18 Wi S 571; Ben- wood Iron Works Co v, Tappan, 56 Mis S 666; Steele v Boyd, 6 Leigh ( Va) 547; Share v Becker, 8 S R(Pa) 239; Witherow v Keller, n S R(Pa) 274; Baker v Judges of Ul- ster, 4 John S ( N Y) 191 In Daly v Derringer, i Phi La (Pa) 324, without denying that audita querela might issue in Pennsylvania, the court said: "It is expedient to give relief summarily on motion rather than to put the parties to that writ" Vermont and Massachusett S The only states where the writ of audita querela is to-day used with any fre- quency are Vermont and Massachu- sett S For instances of its recent ap- plication in those states see the ci- tations generally throughout this ar- ticl e 2 Lovejoy v Webber, 10 Mas S 101; Brackett v Winslow, 17 Mas S 158; Alexander v Abbott, 21 Vt 476; Porter v Vaughn, 24 Vt 211; Edwards v Osgood, 33 Vt 224 Compare Young v Collet, T Ray M 89 3 Emery -v Patton, 9 Phi La (Pa) 125 Advantages of the writ "With regard to this writ, however, there is a peculiarity worthy of notice which in- volves an advantage which does not appear to attend on the remedy by motion in lieu of it. In England an audita querela is a commission to the judges to examine the cause, and is in the nature of an action of trespass, and damages are given if the execu- tion be without right.

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Erie County v Buffalo, 63 Post Date: Fri, 1 Aug 2008 14:38:36 +0000
Now, in the case of a motion for relief, it is very clear that the judges would not award damages to the defendant, however they might protect him from the plaintiff's unjust oppression, and it is equally clear that if an issue were directed to try the matter of fact, the jury could not assess damages, but would be confined to passing upon the fact; but in audita querela, if the issue be to the country, damages may be assesse d" Troubat Haly's Pr (Bright, e d) 481 I ACTIONS AT LAW TO ENFORCE AWARD 1 Eight to Bring Actio N An award is enforcible by an action at law when the submission is at common law, 1 and in some jurisdictions it is apprehended 1 Connecticut Averill v Bucking- ham, 36 Con N 359 Indiana Goodwine v Miller, 32 Ind 419 KentucKy Shockey v Glasford, 6 Dana (Ky) 12 Maine Tyler v Dyer, 13 Me 41; Woodbury v Northy, 3 Me 85 Massachusett S Bean v Farnam, 6 Pic K (Mas S) 268 New Hampshire Parsons v Al- drich, 6 N H 264 New Jerse Y Richards v Drinker, 6 N J L 307- New York M'Kinstry v Solomons, 2 John S ( N Y) 57; Diblee v BeStil John S ( N Y) 103 North Carolina Parrish v Strick- land, 7 Jones (N Car) 504; Thompson v Childs, 7 Ire d (N Car) 435 Ohio Tullis v Sewell, 3 Ohio 510 Pennsylvania Williams v Pas- chall, 3 Yeates (Pa) 564 Rhode Islan d Sprague v Hull, 6 RI 27 South Carolina Penman v Gard- ner, i Brev ( S Car) 498 Ver Mont Wright v Smith, 19 Vt No VirginiaBierly v Williams, 5 Leigh ( Va) 700 The action does not lie on the sub- mission ; it must be brought on the awar d Sadler v Olmstead, 79 Iowa 121 when the submission is under statute, though the provisions of the statute give a remedy for the enforcement of the award, as by having it made a judgment of the court mentioned in the submis- sio N 1 In such cases the provisions of the statute are considered cumulative merely, not exclusiv e 2 2 Time to Bring Actio N No action can be maintained until the award is actually made and publishe d 3 Englan d Banfill v Leigh, 8 T R571; Purslow v Baily, 2 L d Ray M 1039; Hodsden v Harridge, 2 Saun d 62 l, note; Baby v Davenport, 3 U C QB 13; Skinner v Holcomb, 6 U C QB 336 Right to Jury Tria L In an action on a common-law award a trial by jury may be had, Goodwine v Miller, 32 Ind 419; but in arbitration cases aris- ing under the statute a party except- ing to an award cannot have a trial by jury, Milner v Noel, 43 Ind 324; Spencer v Curtis, 57 Ind 221 Defects not Apparent on Face of Award How Availed of In an action on an award defects not apparent on its face, as that the agreement to submit had been revoked, should be taken advantage of by asking the court for appropriate instruction S Kelder- house v Hall, 116 111 147 1 Dickerson v Tyner, 4 Blackf (Ind) 253; Coats v Kiger, 14 Ind 179; Burnside v Whitney, 21 N Y 148; Low v Nolte, 16 111 475 See also Lamar v Nicholson, 7 Port (Ala) 166; Foster v Durant, 2 Cus H (Mas S) 544 Contra, Benjamin v Ben- jamin, 5 W S (Pa) 562 The English Rul e " The statute of 9 and 10 W M 3 authorized the par- ties in an arbitration bond to insert an agreement that their submission should be made a rule of court; but it has never been considered that the statute, by that provision, prevented the parties to such an agreement from proceeding at common law for the nonperformance of an award by an action on the bond or on the awar d 2 Tidd's Pra C 745; 2 Chitt. Ge N Pra C 122" Dickerson v Tyner, 4 Blackf (Ind) 253- Award for Lan d A common-law action may be maintained to enforce payment of an award confirmed by court in a proceeding to condemn land for a street. Erie County v Buffalo, 63 Hun ( N Y) 565; McCormack v Brooklyn, 108 N Y 49; Sage v Brook- lyn, 89 N / 189; Donnelly v Brook- lyn, 121 N Y 9 2 See cases cited under preceding not e In Burnside v Whitney, 21 N Y 148, the court said: " It has been often held that the statute prescribing cer- tain forms for submission to arbitra- tors, and allowing the parties to agree that a judgment of a court of record, designated in the instrument of sub- mission, should be rendered upon the award, was cumulative merely, not ex- clusive; and that an award pursuant to a submission which would have been valid at common law, but which did not conform to the statute, would support an actio N" 3 Varney v Brewster, 14 N H 53, in which case it is said: " Until the award was actually made and pub- lished, the parties most certainly had a right to revoke the authority given the arbitrators by the submission, in whole or in part, and to limit their au- thority, and the extent of their action, in such degree and in such manner as they might choose; and moreover to waive any rights which either had originally, in virtue of the contract of submissio N" Publication What Constitute S An award is considered as published when the parties are informed that it is within their reach on payment of charge S When the condition of the bond does not require delivery of the award to the parties, the foregoing must be understood to mean when they are legally entitled to it, or to ex- amine and read it.

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R348; 4 Hodsden v Harridge Post Date: Fri, 1 Aug 2008 14:23:42 +0000
Knowlton v Ho* mer, 30 Me 552 Anything done which enables the parties to acquire a knowledge of its contents may be considered a publica- tio N A M Eng Enc Y Law, tit, ARBITRATION AND AWARD S An Award for Land Taken when con- firmed is a judgment within the mean- ing of the statute of limitations, the immediate enforcement of which is for Payment of Money Unconditionall Y When an award is made for a sum of money unconditionally, the party becomes liable to pay upon publication of the award according to its terms, and suit may be brought on the award immediately after publication, without making any deman d 1 3 Forms of Action A ASSUMPSIT. Assumpsit lies at common law to enforce an award where the submission to arbitration was by parol or by writing not under seal, 2 whether the award is for the payment of money, 3 or for the performance of some a Ct 4 If the submission be by deed, assumpsit cannot be maintaine d 5 a time suspended by the option given to the city to make payment or reduc- tion by assessment, if made within a reasonable time, and an action to re- cover the same is not barred until after the lapse of twenty year S Don- nelly v Brooklyn, 121 N Y 9; Erie County v Buffalo, 63 Hun ( N Y) 1 Thompson v Mitchell, 35 Me 281; Plummer v Morrill, 48 Me 184; Parsons v Aldrich, 6 N H 264; Nichols v Rensselaer County Mut In S Co, 22 Wen d ( N Y) 125 2 Cooke z' Whorwood, 2 Saun d 337; Purslow v Baily, 2 L d Ray M 1039; Blanchard v Murray, 15 Vt 548; North Yarmouth v Cumberland, 6 Me 21 ; Gerry v Eppes, 62 Me 49; Kingsley v Bill, 9 Mas S 198; Mc- Manus v McCulloch, 6 Watts (Pa) 357; Bierly v Williams, 5 Leigh ( Va) 700; Parsons v Aldrich, 6 N H 264; Piersons v Hobbes, 33 N H 27 Assumpsit by Assignee S Where one assigns his interest under an award before the termination of the arbitra- tion, assumpsit to enforce the award must be brought in his own na Me Day v Smith, I Dow L Pr Ca S 460 If one to whom debts have been as-- signed upon certain trusts, and to whom power of attorney has been given to receive and compound for them, submits to arbitration with the debtors, he may sue in assumpsit on the awar d Banfill v Leigh, 8 T R Assumpsit against Administrator or ExecutoRThe executor or adminis- trator of a party to an arbitration who has died before the termination of the arbitration is liable to an action of assumpsit on an award thereunder directing him to pay a specified sum out of the decedent's estat e Dowse v Coxe, 3 Bin g 20 3 Bierly v Williams, 5 Leigh ( Va) 700; Parsons v Aldrich, 6 N H 264; Piersons z/ Hobbes, 33 N H 27; Kings- ley v Bill, 9 Mas S 198; McManus v McCulloch, 6 Watts (Pa) 357; North Yarmouth v Cumberland, 6 Me 21 Money Payable at Different Time S Where money is awarded to be paid at different times, assumpsit will lie on the award for each sum as it falls du e Cooke v Whorwood, 2 Saun d 337 Money Payable by Persons Jointly and Severall Y Where, on a submission to arbitration by two persons of the one part who agree jointly and severally to perform the award, the arbitrator awards that each shall pay a certain sum, they are jointly liable for the sum awarded to be paid by each, and assumpsit may be maintained against both jointl Y Mansell v Burredge, 7 T. R348; 4 Hodsden v Harridge, 2 Saun d 62^, note; Purslow v Baily, 2 L d Ray M 1039 Possession of Lan d Assumpsit lies on a submission to and award of arbi- trators directing defendant to give plaintiff possession of lan d Blanchard v Murray, 15 Vt 548 Maintenance of Fence and Cattle Pas S Where an award directs a railroad company to pay a specified amount for land taken for railroad purposes, to build and maintain a cattle pass, to keep up fences while the road is being built, and not to interfere with a certain spring near the line, assumpsit will lie on the award for nonperform- ance of its provisions as to the spring, fences, and cattle pas S Taylor v St Johnsbury, etc, RCo, 57 Vt 106 Successive Action S In such case it is no objection that successive actions may aris e If duties are successively violated, successive actions may be brought.

Autor of the post: Undefined

As to whether an action Post Date: Fri, 1 Aug 2008 14:04:34 +0000
Taylor v St Johnsbury, etc, RCo, 57 Vt 106 5 Tait v Atkinson, 3 U C QB 152 Submission to be Pleade d As the b DEBT On Awar d An action of debt will lie on an award for a sum of money when the submission is by bond, deed, writing not under seal, or by rule of court. So also the action may be maintained though the award was rendered in pursuance of a parol submissio N 1 On Bon d If the submission be by bond, an action of debt on the award is not the only remed Y The action may also be brought on the bond to recover the penalty for nonperformance of the awar d 2 On Bond after Extension of Ti Me If the time within which the bond stipulates that the award shall be made is extended by instrument award itself imposes no obligation on the parties, the submission is the foundation of the action and must be pleade d Hence assumpsit will not li e Tullis v Sewell, 3 Ohio 510 When Assumpsit Lies though Submis- sion be by Bon d But if the submission be by bond, and the time within which the award is to be rendered is ex- tended by instrument not under seal, assumpsit lies on an award made after the expiration of the time specified in the original submission and within the extended ti Me Morse on Ar b 582, 583; Brown v Goodman, 3 T R592, not e In Connecticut a rule different from that stated in the text obtain S It is there held that the award and not the submission is the foundation of the ac- tion, and that if the award be not under seal, assumpsit will lie even though the submission be under sea L Averill v Buckingham, 36 Con N 359 1 Debt Hodsden v Harridge, 2 Saun d 62 l, note; Purslow v Baily, 2 L d Ray M 1039; Baby v Davenport, 3 U C QB 13; Skinner v Holcomb, 6 U C QB ( O S) 336; Baker v Booth, Dra (Ca N) 65; Boyd v Durand, 5 U C QB ( O S) 122; Tyler v Dyer, 13 Me 41; Day v Hooper, 51 Me 178; Woodbury v Northy, 3 Me 85; Wright v Smith, 19 Vt no; Blood v Bates, 31 Vt 147; Ott -v Schroeppel, 3 Barb ( N Y) 56; Perkins v Wing, 10 John S ( N Y) 143; M'Kinstry v Solomons, 2 John S ( N Y) 57, 13 John S ( N Y) 27; Van Antwerp v Stewart, 8 John S ( N Y) 125; Diblee v Best, n John S ( N Y) 103; Myers v Dixon, 2 Hall ( N Y) 456; Hume v Hume, 3 Pa St 144; William v Paschall, 3 Yeates (Pa) 564; Shockey v Glassford, 6 Dana (Ky) 12; Richards v Drinker, 6 N J L 307; Bean v Farnam, 6 Pic K (Mas S) 268 Award for Money and Performance of Some A Ct If the award be for a sum of money and for the performance of some act, an action of debt may be maintained on that part of the award which directs the payment of mone Y Morse on Ar b 580; Russell on Ar b (3d e d) 507, 508, citing Chitty's Pld g (6th e d) 258 Debt against Executor or Administra- toRDebt also lies against an ex- ecutor or administrator where the award was made under his own sub- missio N Riddell v Sutton, 5 Bin g 200; Bean v Farnam, 6 Pic K (Mas S; 268 But prior to the passage of 3 4* W M Iv, C 42, 13 and 14, it could not be maintained against an executor on an award on a submission not under seal entered into by testatoRHamp- ton v, Boyer, Cro Eliz 557; Riddell v Sutton, 5 Bin g 200; Freeman v Bernard, I L d Ray M 247; Wade v Dowling, 4' E L B L 44 What may be Shown in Action of Debt A submission and award are admis- sible as prima-facie evidence to sus- tain an action of debt on the awar d Hume v Hume, 3 Pa St 144 In debt upon an award, trie awara, though liable to legal objections, is admissible in evidence; its operation must be determined in another mod e Richards v Drinker, 6 N J L 307 2 Ferrer v Oven, 7B C 427, 14 E C L 71; Judge v Judge, 5 U C QB ( O S) 692; Finkle v Arnold, 6 U C QB ( O S) 168; Maxwell v Ransom, i U C QB 219; Lindford v Mosgrave, 6 U C QB 642; Abbott z/ Skinner, n U C C p 309; Henries v Stiers, 8 N J L 364; Penman v Gardner, I Brev ( S Car) 498; Shockey v Glasford, 6 Dana (Ky) 12; Thomp- son v Childs, 7 Ire d (N Car) 435; Nolte v Lowe, 18 111 437 under seal, debt may still be maintained on the bond ; * but the rule is otherwise where the extension of time is by instrument not under sea L 2 For Money Awarded before Date Fixed for Payment. As to whether an action of debt can be maintained for the recovery of money awarded before the date specified by the award for payment, there seems to be a conflict of authorit Y In the United States it has been held that where an award directs the payment of specific sums on different dates and the giving of a bond to secure pay- ment, an action of debt may be brought before the date on which the first payment is directed to be made, if the required bond is not give N 3 In England it was held that an action might be brought only for such sum as was due at the time of the institu- tion of the actio N 4 C COVENANT.

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An award which settles Post Date: Fri, 1 Aug 2008 13:47:34 +0000
The action of covenant lies at common law for nonperformance or breach of an award rendered under a submis- sion by dee d 5 It is also held that this form of action will lie for 1 Creig v Talbot, 2B C 179, 9 E C L 56; Springer v Spooner, 6 Blackf (Ind) 545- Illustratio N Thus in an action of debt on an arbitration bond, where de- fendant pleaded no award, and plaintiff replied that the parties by subsequent agreement in writing, sealed and in- dorsed on the bond, extended the time for making the award, and he set forth in his replication an award in the en- larged time, it was held on demurrer that a judgment for plaintiff was propeRPenman v Gardner, I Brev ( S Car) 498 The Rule in New York In New York a different doctrine is maintaine d It is there held that no action lies to re- cover the penalty of an arbitration bond for nonperformance of an award when the award was not made within the time specified in the bond, and when the parties by agreement under seal entered on the bond extended the time for making the award, and the award was made in such enlarged ti Me Freeman v Adams, 9 John S ( N Y) 115; Myers v Dixon, 2 Hall ( N Y) 456; Bloomer v, Sherman, 5 Paige ( N Y)575- Qualifications of the Rul e When no time was specified in the bond for making the award, and the time was subsequently fixed by a separate in- strument under seal, it was held that the award was in pursuance of the original submission as well as of the additional agreement, and that debt would lie for the penalty of the bon d Nichols v Rensselaer County Mut In S Co, 22 Wen d ( N Y) 125 When the time within which an ar- bitration bond requires an award to be made is changed by consent of the parties by interlineations in the bond, debt may be maintained thereon in its altered for M Tompkins -v Corwin, 9 Co W ( N Y) 255 2 Brown v Goodman, 3 T R592, note,B 3 In support of this position Mr Justice Davis (of the United States Supreme Court) says: "On principle and authority "B " had a right to sue when M refused to perform any ma- terial part of the awar d * * * The arbitrators did * * * direct the kind of security to be given, and on M's failure to give the bond as required he was in default, and a cause of ac- tion accrue d * * * The provision for security was equally valid as the order for the payment of money, and it may be nearly as important. The right of action was as perfect on M's refusal to give the penal bond as it would have been after the credit allowed by the award had expire d" Bayne v Morris, i Wal L (U S) 97 4 Cooke v Whorwood, 2 Saun d 5 Tomlin v Fordwich, 6 N M 594; Charnley v Winstanley, 5 East 266; Marsh v Bulteel, 5B Ai d 507; Browning v Wheeler, 24 Wen d ( N Y) 258; Doolittle v Malcom, 8 Leigh ( Va)6o8 Illustratio N Thus where money is d TRESPAS S An action of trespass will lie where a party to an award fixing a boundary line, in disregard of the award enters upon the land and removes the monuments erected by the arbi- trators to designate the true lin e 2 e CAS e Where a drain through the land of adjoining owners is dug, in pursuance of an award which directs them to cleanse and keep it open, case may be maintained by either one of them who has been 'injured by the neglect of the other in failing to keep open or cleanse the drai N 3 f EJECTMENT. An award which settles the boundaries of land may be enforced by an action of ejectment.

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The opposite party is held Post Date: Fri, 1 Aug 2008 13:35:08 +0000
4 g TROVERWhere parties mutually covenant to abide by an award, and the award directs defendant to deliver certain prop- erty in his possession to plaintiff and he refuses to do so, an action of covenant broken does not lie, the proper remedy being an action of troveR5 4 The Declaration or Complaint in Action on Award A How TO SET FORTH AWAR d In an action on an award only so much of awarded in pursuance of a submission by deed, plaintiff should sue in cove- nant for the nonpayment of such awar d Assumpsit cannot be main- tained thereon in the absence of a new consideration separate and distinct from the dee d Tait v Atkinson, 3 U C QB 152 Covenant on Agreement to Submit. But covenant cannot be maintained on a sealed agreement to submit, under rule of court, a pending action and all matters in dispute to certain referees for the nonperformance of an award, though it be established by judgment, unless the agreement of submission contains some promise to perform it; the remedy if it be one that the ex- ecution of a common-law court, out of which the rule issues, will not afford being one in law or equity suited to the cas e Sprague -v Hull, 6 RI 27 Covenant to Compel Contributio N Where one of two parties directed to pay an award is compelled to pay the whole by reason of the other's refusal to pay his part, the former may bring an action of covenant against the latter to compel contributio N Allen v Coy, 7 U C QB 419- 1 Charnley v Winstanley, 5 East 266; Marsh v Bulteel, 5B Ai d 507; Brown v Tanner, i C p 651; Le Brett -v Papillon, 4 East 502 Joinder of Counts on Award with Counts for Breac H In an action of covenant, counts on the award may be joined with counts for a breach of the agree- ment to perform and not revoke an award to be mad e Brown v Tanner, i C p 651; Morse on Ar b 583 2 Weeks v Trask, 81 Me 127, in which it was said that such acts do not constitute a breach of the agree- ment "to abide by and perform the award," for which assumpsit will lie, and that the injured party should re- sort to his action of tort for remed Y See also Shaw v Hatch, 6 N H 162; Marshall v Reed, 48 N H 36; Sweeny v Miller, 34 Me 388; Jones v Dewey, 17 N H 596 3 Sharpe v Hancock, 7 M g 354, 49 E C L 354; Russell on Ar b (6th e d) 542; Morse on Ar b 583, 584 4 Robertson v M'Niel, 12 Wen d ( N Y)s82; Jackson v Gager, 5 Co W ( N Y) 383; Sellick v Addams, 15 John S ( N Y) 197; Jackson -v De- Long, 9 John S ( N Y) 43; Girdler v Carter, 47 N H 308; Calhoun v Dun- ning, 4 Dal L (U S) 120; Doe v Ros- ser, 3 East 15 It is well settled that upon the strength of such award the party in whose favor it is made may recover in an action of ejectment. The opposite party is held concluded by his own agreement from disputing the title of the plaintiff Robertson v M'Niel, 12 Wen d ( N Y) 583 5 Bridgeman v Eaton, 3 Vt 166 the award need be set out in the declaration as will show plain- tiff's right to recoveR1 Matters in the award favorable to the defendant need not be state d b THE ALLEGATION S in Genera L The declaration should allege the existence of differences between plaintiff and de- fendant ; 2 an agreement to submit the matters in dispute to arbitration, 3 and that the submission was mutual ; but it will be sufficient to state the substance of the submission without setting it out at lengt H 4 It should also be alleged that an award was 1 Blanchard v Murray, 15 Vt 548 In debt on an award it is enough to show so much only of the award as is sufficient to maintain the actio N Thus, if plaintiff declare that it was "among other things" awarded, it is sufficient.

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Sanford v Wood, 49 Ind Post Date: Fri, 1 Aug 2008 13:23:00 +0000
2 Saun d 62 b, not e Though plaintiff need not set forth the whole award, if he do and it ap- pears to be a defective award, the declaration is defectiv e Leake v Butler, Litt 312; Smith v Kirfoot, i Leo N 72; Tilford v French, I Si d 161; Foreland v Marygold, i Sal K 72 In debt on an award no more need be stated than will support plain- tiff's case; if there be anything by way of condition precedent to the pay- ment of the money, it must be pleade d Perry v Nicholson, I BurR280; Mc- Callum v McKinnon, 15 U C C p 561; Russell on Ar b (3d e d) 516; Bond v Bond, 16 U C C p 327; Doolittle v Malcom, 8 Leigh ( Va) 608; M'Kinstry v Solomons, 2 John S ( N Y) 57, 13 John S ( N Y) 27; Dib- lee -v Best, II John S ( N Y) 103; Finley v Finley, n Mo 624; Gentry v Barnet, 2 J J Marsh (Ky) 315; Shockey v Glasford, 6 Dana (Ky) 9; Blanchard v Murray, 15 Vt 548 Filing Copy with Complaint. In a suit on a written award a copy should be filed with the complaint. Sanford v Wood, 49 Ind 165 Alleging that Hatter Submitted was Lega L The declaration in an action on an award directing payment of a lottery prize need not allege that the prize was drawn in a lottery autho- rized by law, as the defense of ille- gality of the lottery, if it existed, should have been made before the arbitrator S Waite v Barry, 12 Wen d ( N Y) 3 77 Form of Declaration on Awar d Plaintiff declares * * * that certain differences had arisen and were de- pending between the said plaintiff and the said defendant touching cer- tain matters; * * that to put an end to the said differences the said plaintiff and the said defendant sub- mitted themselves, on the day of * * * and mutually bound themselves, in the said submission, that if either of them should revoke the submission, or neglect and refuse to perform the award, the party refusing to perform it should pay to the other five hun- dred dollars in lieu of all other damages; * * * that the said and on the day of took upon themselves the duty of making an award and made their certain award in writing * * * of and con- cerning the said differences [set out the award in substance]; * * * that defendant had notice of the said award; * : * that though plaintiff has been ready and willing to perform and did then and there perform his part of the award, * * * and though defendant was requested by plaintiff to perform his part of the award or to pay plaintiff the said sum of five hundred dollars, according to the tenor and effect of said sub- mission and award, and according to the promises and undertakings of the said defendant; yet the said de- fendant did not and would not per- form his part of the award, nor pay the said sum of five hundred dollars; * * * but then and there wholly re- fused and neglected so to do, whereby and by reason whereof the said de- fendant became liable to pay to the said plaintiff the said sum of five hun- dred dollars, etc Whitcomb v Pres- ton, 13 Vt 53 2 Matthews v Matthews, 2 Curt (U S) 106; Whitcomb v Preston, 13 Vt 53 See Blanchard v Murray, 15 Vt 548; Finley v Finley, II Mo 625 3 Matthews v Matthews, 2 Curt (U S) 106; Finley v Finley, n Mo 625; Whitcomb v Preston, 13 Vt 53 4 Cole v Chapman, 3 111 35; made of and concerning the matters submitted in pursuance of the submission, and that it conformed with the submission in every material respect ;* that the award was made within the time limited by the submission ; 2 that it was in writing, signed and sealed, if these formalities were required by the submission, 3 and that defendant had failed to perform it.

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