said A B afterwards, viz. on &c., at &c., upon sight thereof, accepted according to the usage of merchants; and the plaintiff avers, that afterwards, when the said bill of exchange became due according to the tenor and effect thereof, viz. on &c. at &c., the said bill of exchange, so accepted as aforesaid was duly presented and shown to the said A B for payment thereof, and the said A B was then and there requested to pay the said sum therein specified, according to the tenor and effect thereof, and of his said acceptance thereon; but that the said A B did not, and would not then, or at any other time before or since, pay the said sum of money, but then and there wholly refused so to do, of all which said several premises, the said D thereafterwards, viz. on the same day, had notice; by means whereof, he, the said D, became liable to pay to the plaintiff the said sum, specified in the said bill, when thereunto afterwards requested; and being so liable, the said CD, in consideration thereof, afterwards, viz. on &c., at &c., agreed to pay the said A B the said sum of money in the said bill of exchange specified, when the said D should be thereunto afterewards requested; whereby and by reason of the said sum of money in the said bill of exhange specified, being and remaining wholly, unpaid, an action hath accrued to the plaintiff to demand and have of the said D the said sum of &c.; yet though requested, &c.

NOTE. This count, if the words in italic are included, is a good declaration in Assumpsit, the word "agreed," being equivalent to "super se assumpsit." But the words in italic, though essential in Assumpsit, seem to be superfluous in Debt, where, on the circumstances set forth in the declaration, the law creates the liability and gives the action, without the necessity of raising an implied promise to support the action, as in Assumpsit. These two last declarations, though greatly abridged from the English precedents, it is obvious, are susceptible of further retrenchment. But this is submitted to the descernment of the reader.

By adopting the above declarations in Debt on simple contracts, the plaintiff may join in the same action, counts on promissory notes or bills of exchange, &c., or for goods sold and delivered, &c., with declarations on bonds, leases, judgments, &c.

2. Debt on Awards.

For Assumpsit on awards, see ante. p. 191.

For not paying money awarded by arbitrators.

For that whereas certain differences were had and moved between the said plaintiff and the said S, of and concern

ing &c. (here state the differences,) and for appeasing said differences, the said plaintiff and the said T, on &c., at &c., put themselves on the award, determination, and judgment of C, of &c., and W, of &c., arbitrators indifferently elected between them, to award, order, and judge, touching the premises; and the said C and W, having taken upon themselves the burthen of awarding and adjudging in the premises, afterwards, viz. on the same day, at &c., made their award in writing touching the premises, and awarded, ordered, and adjudged, that the said T should pay to the said plaintiff the sum of $- for the said A's time; whereby an action hath accrued, &c.

Declaration on an award, where the submission was by bonds, &c.

For that whereas certain differences being depending between the plaintiff and the said D, the plaintiff heretofore, viz. on &c., at &c., by his bond bearing that date, became bound to the said D in the sum of $-; and the said D, then and there, by his bond of the same date, became bound to the plaintiff in the sum of $-; which said bonds were respectively conditioned to abide the award of E F, of &c., an arbitrator named and elected, as well on the part of the said D, as on the part of the plaintiff, to arbitrate &c. of and concerning all, and all manner of action and actions, &c. (as in the submission,) so as the said award should be made in writing under the hand of the said E F, and ready to be delivered to the said parties in difference, or such of them as should desire the same, on or before the day of &c. (follow the words of the submission.) And the plaintiff says, that the said E F, having taken upon himself the burthen of the said arbitration, did in due manner and within the time for that purpose appointed, viz. on &c., at &c., duly make and publish his award in writing, subscribed with his own proper hand &c. (this should conform to the bond) of and concerning the said differences between the said parties, ready to be delivered to the said parties, or such of them as should desire the same, and bearing date &c., and did thereby award that the said D should pay to the plaintiff the sum of $-, (setting forth so much of the award as concerns the payment of the money) which, when paid, should be in full satisfaction of all demands of the plaintiff upon the said D, on account of the said differences; and the said E F did further award, that the said D should pay to the plaintiff the sum of $-, for the costs of the said award &c., as by the

said award, reference thereto being had, will more fully appear; of which said award the said D afterwards, viz. on &c., at &c., had notice; and though the said D did afterwards, viz. on &c., pay to the plaintiff the said sum of $—, in the said award mentioned; yet the said D 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 in that behalf mentioned, or any part thereof, although thereto requested, viz. on &c., appointed for the payment of the said sum of $-, viz. at &c., whereby an action hath accrued to the plaintiff to demand and have of the said D the said sum of -, parcel of the said sum of $- above demanded, &c.

NOTE. Where the submission is by bond, the plaintiff has an election to sue on the bond, or on the award, if it is merely for the payment of money. But if a collateral thing is awarded, the suit must be on the bond, as Debt will lie for money only. 2 Saund. 62, n. 5. However, Detinue may be maintained for a collateral thing awarded, as a horse, &c., since the property is changed by the award.

Where a sum of money is awarded, it is sufficient to set forth so much only of the award as to show a good cause of action. 1 Ld. Ray. 115; Bur. 278. But if there is any condition precedent, &c. to be performed by the plaintiff, it should be stated, and performance or a tender and refusal averred.

A verbal award may be set forth substantially. 2 Vent. 242.

If the plaintiff sets forth an award, though unnecessarily and on the face of the declaration, the award appears to be defective, it will be bad. 1 Sid. 160; 2 Lev. 6; Yelv. 98.

In setting forth an award it seems hardly safe to say, that "it was awarded among other things." See Rich v. Morris, 1 Mod. 36, where it was said to be bad, though there are authorities to the contrary. The words, "among other things," do not seem to be merely surplusage, though the declaration might have been good, if they were omitted. But on the face of the declaration it does not appear that the plaintiff has any cause of action, because the declaration acknowledges, that the award contains other things, which, if set forth, might show that the plaintiff had no right to recover. It would be better, therefore, in order to avoid the risk of a demurrer, to omit those words.

3. On Bonds.

In declaring on a Bond, it is best to describe it as a writing obligatory. This description is sufficient without more. Cro. Eliz. 737. Mo. Cas. 306. See Salk. 463. But to describe it merely as a writing, signed by his hand, is bad. Cro. Car. 209.

The plaintiff may declare upon several bonds in the same declaration. Com. Dig. Action (G.) The second count may begin thus ; "And for that the said D, on &c., at &c., by his other writing obligatory," &c. In such case the conclusion should be omitted to the first count, and after the second count a general conclusion may be subjoined thus: "which said several sums of money amount together to the sum of $-"; "yet the said D," &c.

The Bond must generally be pleaded with a profert, but if it is in the hands of the other party or is lost by accident, or destroyed by fire, it will be sufficient to state the fact according to the truth, in the declaration, and it will be a sufficient excuse. Without profert or a sufficient excuse for want of it, the plaintiff will be nonsuited. If the bond be found afterwards, it will be sufficient, if the excuse were true at the time. See 2 Chitty's Pleadings, 191.

These averments may be made thus," and which said writing obligatory having been lost, &c., or destroyed by accident, &c., or being in the possession of the said D, the plaintiff cannot produce the same to the said court." See 3 T. R. 151; 2 Camp. 557; 4 East's

R. 585.

If an action is brought on a bond, made according to the custom of some countries, with a scroll seal, it is recommended to declare; 1. As on a writing obligatory, in common form. 2. As on a writing obligatory made according to the custom of the country. 3. Introduce the common counts to include the original consideration. 3 Chitty's Plead. 240.

A Bond, conditioned for the payment of a smaller sum, carries interest from the day of payment; if no day of payment is expressed, from the day of execution, the bond being due on that day. 7 T. R. 124. Aliter of a single bill. Starkie on Evidence, Part 4, 309, cites Starkie's Cases, 291; 1 B. & P. 337.

DECLARATIONS ON BONDS.

On a bond in common form.

In a plea of debt, for that the said S, on &c., at &c., by his writing obligatory of that date, sealed with his seal, and here in court to be produced, bound and acknowledged himself to be indebted to the plaintiff in the sum of $-, to be paid to the plaintiff on demand; yet though requested, the said S hath never paid the same to the plaintiff, but wholly refuses and neglects so to do. SPRAGUE.

On a bond without date.

For that the said S, by a certain writing obligatory, made and sealed, and as the deed of the said S, on &c., at &c., delivered to the plaintiff, which is here in court to be produced, acknowledged himself to be bound to the plaintiff in the sum of $100, to be paid to him on demand; yet, though often requested, he hath never paid the same, but refuses so to do. 2 Ins. Cler. 330.

On a bond given to two; by survivor.

For that the said S, on &c., at &c., by his writing obligatory of that date, sealed with his seal, and in court to be produced, acknowledged himself to be bound to the plain

tiff and one L L, now deceased, whom the plaintiff survived, in the sum of $, to be paid to the plaintiff and the said L L, or either of them, when thereto requested; yet the said S, though often requested, never paid the same sum to the plaintiff or the said L L, or either of them, in the lifetime of the said L L, or to the plaintiff since the decease of the said L. L., but refused and still refuses to pay the same.

On bond given to wife after marriage; by husband.

For that the said S, on &c., at &c., by his certain writing obligatory of that date, sealed with his seal, and in court to be produced, bound himself in the sum of $100, to be paid to L L, then and yet the wife of the plaintiff, on demand yet, though often requested, he hath never paid the same to the said L L or to the plaintiff, but wholly refuses so to do. 3 Lev. 403; 1 Vern. 396; 4 T. Kep. 616.

By husband and wife, on bond to wife before coverture.

For that the said S, on &c., at &c., by his bond of that date, sealed with his seal, and in court to be produced, bound himself to the said L L, then sole, by the name of L L, of &c., in the sum of $100, to be paid to the said L L on demand; yet, though requested, the said S never paid the same to the said L, while sole, nor to the plaintiffs, or either of them, since their intermarriage, but to pay the same to the said L L, while sole, or to the said plaintiffs, after their intermarriage aforesaid, refused, and still refuses. 2 Ins. Cler. 377.

By administrator or executor, on bond given by an intestate; against his executor or administrator.

For that the said E E, (the intestate) at &c. aforesaid, on the day of &c., by his bond of that date, sealed with his seal, and in court to be produced, bound himself to the said B B, (the testator,) then living, in the sum of $100, to be paid him on demand; yet the said E, though requested in his lifetime, never paid the same to the said B B in his lifetime, nor to the plaintiff, since the death of the said B B; nor hath the said D, though likewise requested since the death of the said B B and E E, ever paid the same but detains it. Dana v. Dean. F. DANA.

Another. By executor or administrator against administrator or exe

cutor.

For that the said D, on &c., at &c., by his writing obli