time of the reference, if such matter were not laid before the arbitrator. Willes, 270. 27. An award may be good in part and bad in part, provided the different matters in each be distinct, and not dependant one on the other. Candler v. Fuller. Willes, 64. And Johnson v. Wilson. Willes, 253. 28. And therefore if arbitrators award the costs of suit and the costs of reference, not having power to award the latter, the award will be good as to the former part, and bad as to the latter. Willes, 64. If arbitrators award the defendant to pay the plaintiff his costs of suit to be taxed by the proper officer before a particular day, it is the business of the defendant to have then taxed before that day. Ibid. 65. 29. If the arbitrators award A. to pay B. 100l. and award A. and B. to give general releases to each other, and then award B. to pay A. 20l. at a subsequent time, the whole award is bad. Storke v. De Smeth. Willes, 66. So if the arbitrators award A. to pay B. 30l. on one day, and B. to pay 10l. on a subsequent day. Ibid. 30. A party who offers to set out the whole of an award, may omit such part of it as is void. But he must not omit any other part. Foreland v. Hornigold. 1 L. Raym. 715. 1 Salk. 72. 31. Award that A. should beg B.'s pardon in such a manner and place as B. should appoint, is void quo ad hoc. Glover v. Barrie. 1 Salk. 71. 32. An award helped after verdict. Bell v. Simpson. 2 Wils. 10. (And see ATTACHMENT III. BAIL I.) 33. A. and B. in 1797, assigned to the plaintiff all debts due to them, and gave him a power of attorney to receive and compound for the same; under which the plaintiff in 1799, submitted to arbitration the matters in difference then subsisting between his principals and the defendants; and the plaintiff and defendants promised to each other to perform the award. The arbitrators having awarded a sum to be paid to the plaintiff as such attorney, he may maintain an action for it in his own name. Banfill v. Leigh et al. 8 Term Rep. 571. 34. An attachment for not paying a sum of money pursuant to an award cannot issue before a personal demand has been made: though the time and place of payment be specified in the award. Brandon v. Brandon. 1 Bos. & Pull. 394. 35. Upon an application for an attachment for non-performance of an award, it is competent to the parties to object to the award for any illegality apparent on the face of it, though the time for applying to set it aside is expired. Pedley v. Goddard. 7 Term Rep. 73. 36. But the court will not listen to an application to set aside an award for any defect whatsoever, after the time limited by the stat. 9 and 10 W. 3. c. 15, 7 Term Rep. 73. 37. Though such defect appear upon the face of the award. Lowndes v. Lowndes. 1 East, 276. 38. A party cannot, in shewing cause against an attachment for not performing an award, impeach the award for defects not appearing on it. Holland v. Brooks. 6 Term Rep. 161. 39. A submission to an award between A. and B. the parties on the record, having been made a rule of court, which award not having been made in time, the dispute had been referred to a second arbitrator to settle by B. and C. who were the real parties in the suit, no attachment can issue against B. for not obeying the award made by the second arbitra tor, because the reference should be made by the parties on the record; and even if it had there should have been another rule to make the second submission a rule of court. Owen v. Hurd. 2 Term Rep. 643. 40. And as the court had no jurisdiction in this case, they could not go into the merits, though B. consent ed to waive the objection. 2 Term Rep. 643. 41. An agreement to enlarge the time for making an award, must contain a consent that it shall be made a 42. A motion that an award should be referred back to the same arbitrator to reconsider it, on the ground that he had not sufficient materials before him when he made it, must be made before the last day of the next term after such award made, according to stat. 9 and 10 W. 3. c. 15. s. 2; although the arbitrator be not charged with corruption or undue means. Zackary v. Shepherd. 2 Term Rep. 781. 43. An award that the defendant shall pay to the plaintiff such a sum of money unless within twenty-one days (which was after the time limited for making the award) the defendant shall exonerate himself by affidavit from certain payments and receipts, in which case he was only to pay a less sum, is illegal and void, because uncertain and inconclusive. Term Rep. 73. 44. If an award be made on an improper stamp, and no application be made to inforce it, the court will not set it aside. Preston v. Eastwood. 7 Term Rep. 95. 45. An award in writing and under scal need not have a deed stamp, unless delivered as a deed; if only delivered as an award, it is sufficient that it have the award stamp of 10s. Brown v. Vauser. 4 East, 584. 46. An award which is required to be made in writing, &c. and ready to be delivered at such a time, is complete if made in writing and ready to be delivered by the arbitrator within the time, though not actually delivered. 4 East, 584. 47. The court of C. P. refused to grant an attachment for non-per formance of an award pending an action brought on the award; or to allow the plaintiff to waive the action in order to apply for the attachment. Badley v. Loveday. 1 Bos. & Pull. 81. 48. That court gave leave in the first instance to enter up judgment on a verdict reduced by award. Hig ginson v. Nesbitt. 1 Bos. & Pull. 97. 49. Where a verdict is taken pro forma at the trial for a certain sum, subject to the award of an arbitrator, the sum afterwards awarded is to be taken as if it had been originally found by the jury; and the plaintiff is entitled to enter up judgment for the amount, without first applying to the court for leave so to do. Lee v. Lingard. 1 East, 401. Grimes v. Naish. 1 Bos. & Pull. 480. Borrowdale v. Hitchener. 3 Bos. & Pull. 244, accordan te: Haywards v. Ribbans. 4 East, 310, semble contra. 50. The sum for which the verdict is nominally taken, in such a case, cannot be considered as in the nature of a penalty for which plaintiff may enter up judgment, and thereby levy interest, sheriff's poundage, &c. He can only enter up judg ment for the sum found by the arbitrator. 1 East, 403. 1 Bos. & Pull. 480. 3 Bos. & Pull. 244, and 4 East, 810' accord. 51. If in such ease the award be made before the term, the defendant can only impeach it within the four first days of term. 3 Bos. & Pull. 244. 52. And personal service of the award is not necessary to warrant the issuing of execution, if the attorney of the defendant has been served with the award. 3 Bos. & Pull. 24-1. 53. Where a verdict is taken for a certain sum, subject to the award of an arbitrator, he cannot award a greater sum than that for which the verdict was taken; and if he do, no assumpsit by implication will arise to pay even to the extent of the verdiet so taken. Bonner v. Charlton. 5 East, 139. 54. Upon a reference of all actions, controversies, &c. and also of two distinct matters of difference; if the arbitrator omit to decide one of such distinct matters, that vitiates the whole award; which cannot therefore be enforced by attachment. Randall v. Randall. 7 East, 81. 55. Where an award is made after the time originally given to the arbitrators, but authority was also given to them to enlarge the time; an award within the enlarged time authorised is good upon the face of it, though it do not recite that he arbitrators did in fact enlarge the time but the court will not grant an attachment for the non-performance of the award without the verification of that fact. George v. Lousley. 8 East, 13. sion by virtue of that statute, does not attach on awards made under orders of nisi prius. Synge v. Jervoise. 8 East, 466. 60. In debt on bond to perform an award, the defendant after oyer alleges a performance of the award, by paying two days after the award, to the partner of the plaintiff (not party to the bond, but whose joint concerns with the plaintiff were referred to the arbitrator) of three several sums of money awarded to be paid by him: the plaintiff replies a demand by himself on the day of the award made, and a refusal by the defendant: the replication was adjudged bad. Peters v. Pierce. 8 Mass. 398. VII. Bail in Criminal Cases. 56. Where the costs of a cause, and v. Thompson. 8 East, 344. 2. 3. in. I. On Arrest in Civil Cases. In an action by the loser at gaming special bail shall be given. Turner v. Warren. 2 Str. 1079.' 1 Salk. 100. 1 Bail on debt upon a bond to per- Bail to the action are not liable beyond the sum sworn to and the costs, whatever the amount of the damages recovered may be. Jackson v. Hassell. 1 Doug. 330. Nor beyond the sum in the ac etiam clause in the writ. Goubaldo v. Cognoni. 1 Salk. 102. 4. Bail to the sheriff on an attachment for not bringing in the body, is liable to the whole debt and costs. Fowlis v. Macintosh. 1 Douglas, 330. 5. Having no effects in England no A foreigner, being bail, sworn and ex- 8. ant ought not to be holden to bail for the penalty, but only for the amount of the damages incurred. Kirk v. Strickland. 2 Douglas, 449. 14 Bail by executors and in inferior courts. Page v. Price. 1 Salkeld, 98. 15 On a removal out of an inferior 782. 17 No special bail in debt on judg ment after defendant has been superseded. Hall v. Howes. 2 Str. 18 Nor an attorney, nor the clerk to the defendant's attorney. Bou- 19 logne v. Vautrin. 2 Doug. 467, n. Cowper, 828. 9. No sheriff's officer, of any kind, can be special bail. Bolland v. Pritchard. 2 Black. 799. Dolderen v. Feast. 2 Str. 890. 10. Where the plaintiff might have judgment against the original defendant, the bail below are liable for the whole debt and costs. Orton & Another (assignees) v. Vincent & Another. Cowper, 71. 11 Bail on a testatum capias, from Middlesex, put in where the writ is served, and not in Middlesex, is as no bail, and the plaintiff may proceed as if the defendant had not appeared. Fisher v. Levi. 2 Black. 1061. 12 In an action upon a replevin bond, common bail shall be filed. Dux Ormond v. Brierly. 1 Salk. 99. 13 Iu debt on a bond conditioned for an indemnification, &c. the defend 1039. A man may be holden to bail in a second action pending the first, if the bail on the first foresworn and worth nothing. Olmius v. Delanay. 2 Strange, 1216. Where the defendant might have pleaded bankruptcy in the first action, he shall give bail in debt upon the judgment. Combes v. Black hall. Str. 477. 20 Special bail shall not be required in debt upon a judgment in trespass, though above ten pounds damages. Cressy v. Kell and others. 1 Wils. 120. See 4 T. R. 570, contra. In an action upon the judgment, though for above 10l. the defendant shall not be held to special bail, if the original demand was under that sum. Anon. Corp. 128. Palmer v. Needham. 3 Burr. 1389. 21 1274. he may hold to special bail. Nightingale v. Nightingale. 2 Black. 24 An accomplice, who, in a case out of the statutes, is under the practice allowed, admitted by the justices of peace as a witness, and is afterwards prosecuted, has only a claim to the mercy of the crown founded on an express or implied promise of the magistrate, on a condition to be performed; and it depends on his conduct in fully and fairly disclosing the joint guilt of himself and his companions, whether the court will admit him to bail, that he may apply for a pardon. R. v. Rudd. Cowp. 331. 25 Wherever an accomplice has a right to a pardon, (which he may have, 1. by approvement, 2. by virtue of the statutes 10 and 11 Will. 3, and 5 Ann. c. 4 and 3, by royal proclamation,) the court will bail him that he may apply for it. also they will if he has only an equitable claim to a recommendation for mercy, gained by being admitted evidence for the crown, under the practice allowed. Ibid. 26 It is generally speaking no objec tion to bail that they are indemnified. Neat v. Allen. 1 Bos. & Pull. 21. So 27 But the court of C. P. rejected bail, who had received verbal a promise of indemnity from the defendant's attorney; giving time to put in fresh bail. Greensill v. Hopley. A Bos. & Pull. 103. 28 Neither an attorney nor a clerk to an attorney can be bail to the action. Laing v. Cundall. 1 H. Black. 76. Whether the clerk be articled or not. Cornish v. Ross. 2 H. Black. 350. 29 And though he be not clerk to the defendant's attorney. Redit V. Broomhead. 2 Bos. & Pull. 564. 30 It is not sufficient ground to reject a person as bail that he is described "of A. in the county of B., gaol keeper," for he might be a corporation gaol keeper, and so have noth ing to do with the process of the court. Faulkner v. Wise. 2 Bus. & Pull. 150. 31 If bail be put in without any description, one of whom afterwards proves to be a clerk to an attorney, the plaintiff may treat the bail as a nullity, and take an assignment of the bail bond. Fenton v. Ruggles. 1 Bos. & Pull. 356. Wallace v. Arrowsmith. 2 Bos. & Pull. 49. In K. B. the plaintiff must except to such bail, and cannot treat it as a nullity. R. v. R. v. Sheriff of Surrey. 2 East, 181. Focall v. Bowerman. 2 East, 182. 33 An indorser of a may be bail for the tion against him Harris v. Manley: 32 526. bill of exchange drawer in an acupon the bill. 2 Bos. & Pull. 34 A defendant cannot enter into the recognizance of bail: but each of his bail shall bind himself in double the sum sworn to. Reg. Gen. ↑ Bos. & Pull. 530. 35 Neither the bail to the sheriff, nor a defendant who has given a bail bond, can be held to bail in an action brought by the sheriff on that bond. Brander & al. v. Robson. 6 Term Rep. 336. Mellish & al. v. Petherick. 8 Term Rep. 450. 36 But bail in the original action after judgment recovered against them on the bail bond, may be holden to bail in an action on such judgment. Prendergast v. Davis & al. 8 Term Rep. 85. 37 Bail to the sheriff are liable to the plaintiff's whole debt (without regard to the sum sworn to) and costs, provided they do not exceed the penalty of the bail bond. Mitchell v. Gibbons. 1 H. Black. 76. Stevenson v. Cameron. 8 Term Rep. 28. 38 And so is the sheriff in the case of an attachment against him for not bringing in the body: for he ought to put the plaintiff in the same situation as if good bail were put in and justified. Fowlds v. Mackintosh. 1 H. Black. 233. 39 But the court will relieve him on |
