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time of the reference, if such matter the award. The arbitrators having were not laid before the arbitrator. awarded a suin to be paid to the Willes, 270.

plaintiff as such attorney, he may 27. An award may be good in part maintain an action for it in his oun and bad in part, provided the differ

Banfill v. Leigh et al. 8 ent matters in each be distinct, and Termn Rep. 571. not dependant one on the other. 34. An attachment for not paying a Candler v. Fuller. Willes, 64. And sum of money pursuant to an award Johnson v. Wilson. Willes, 253. cannot issue before a personal de 28. And therefore if arbitrators award mand has been made though the

the costs of suit and the costs of re- time and place of payment be speference, not having power to award cified in the award. Brandon v. the latter, the award will be good Brandon, i Bos. f. Pull. 394. as to the former part, and bad as to 35. Upou an application for an atthe latter. Willes, 64.

tachment for non-performance of I arbitrators award the defendant to an award, it is competent to the

pay the plaintiff his costs of suit to parties to object to the award for a. be taxed by the proper officer before ny illegality apparent on the face a particular day, it is the business of it, though the time for applying of the defendant to have thein tax- to set it aside is expired. Pedley

ed before that day. Ibid. 65. v. Goddard. 7 Term Rep. 73. 29,

If the arbitrators award A. to pay 36. But the court will not listen to an B. 1001. and award A. and B. to application to set aside an award for give general releases to each other, any defect whatsoever, after the and then award B. to pay A. 201. time limited by the stat. 9 and 10 at a subsequent time, the whole a- W. 3. c. 15. Term Rep. 73. ward is bad. Storke v. De Smeth. 37. Though such defect appear upon Willes, 66.

the face of the award. Lowndes ve So if the arbitrators award N. to pay Lowndes. 1 East, 276.

B. 30l. on one day, and B. to pay 38. A party cannot, in shewing cause

101. on a subsequent day. Ibid. against an attachment for not per30. A party who offers to set out the forming an award, impeach the a

whole of an award, may omit such ward for defects not appearing on part of it as is void.

it. Holland v. Brooks. 6 Term But he inust not omit any other part. Rep. 161.

Foreland v. Hornigold.' 1 L. Raym. 39. A submission to an award between 710. 1 Salk. 72.

J. and B. the parties on the record, 31. Award that A. should beg B.'s having been made a rule of court,

pardon in such a manner and place which award not having been made as B. should appoint, is void quo ad in time, the dispute had been refer

hoc. Glover v. Barrie. 1 Salk. 71. red to a second arbitrator to settle 32. An award helped after verdict. by B. and C. who were the real par.

Bell v. Simpson. 2 Wils. 10. ties in the suit, no attachment can (And see ATTACHMENT III. Bail I.) issue against B. for not obeying the 33. A. and B. in 1797, assigned to the award made by the second arbitram

plaintiff all debts due to them, and tor, because the reference should be gave him a power of attorney to re- made by the parties on the record ; ceive and compound for the same; and even if it had there should have under which the plaintiff in 1799,

been another rule to make the sesubmitted to arbitration the matters cond submission a rule of court. in difference then subsisting between Owen v. Hurd. 2 Term Rep. 643. dois principals and the defendants ; 40. And as the court had no jurisdicand the plaintiff and defendants tion in this case, they could not go promised to each other to perform into the merits, though B. consent

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ed to waive the objection. 2 Term formance of an award pending an Rep. 643.

action brought on the award ; or to 41. An agreement to enlarge the time allow the plaintiff to waive the ac

for making an award, must contain tion in order to apply for the at-
a consent that it shall be made a tachment. Badley v. Loveday. 1
rule of court; otherwise no attach- Bos. f. Pull. 81.
ment will be granted for not per- 48. That court gave leave in the first
forming an award made under it. instance to enter up judgment on a
Jenkins v. Law. 8 Term Rep. 87. verdict reduced by award. Hig-
(But see ante I.)

ginson v. Nesbitt.

1 Bos. & Pull. 42. A motion that an award should be 97.

referred back to the same arbitra- 49. Where a verdict is taken pro for-
tor to reconsider it, on the ground ma at the trial for a certain sum,
that he had not sufficient materials subject to the award of an arbitra-
before him when he made it, must tor, the sum afterwards awarded is
be made before the last day of the to be taken as if it had been origin-
next term after such award made, ally found by the jury; and the
according to stat. 9 and 10 W. 3. c. plaintiff is entitled to enter up judg-
15. 5. 2; although the arbitrator be ment for the amount, without first
not charged with corruption or un- applying to the court for leave so
due means.
Zackary v. Shepherd.

to do.

Le v. Lingard. 1 East, 2 Term Rep. 781.

401. Grimes v. Naish. 1 Bos. $ 43. An award that the defendant shall

Pull. 480.

Borrowdale v. Hitchepay to the plaintiff such a sum of 3 Bos. f: Pull. 244, accordanmoney unless within twenty-one te: Haywards v. Ribbans. 4 East, days (which was after the time lim- 310, seinble contra. ited for making the award) the de- 50. The sum for which the verdict is fendant shall exonerate himself by nominally taken, in such a case, affidavit from certain payments and cannot be considered as in the nareceipts, in which case he was only ture of a penalty for which plaintiff to pay a less sum, is illegal and may enter up judgment, and therevoid, because uncertain and incon- by levy interest, sheriff's poundage, clusive. 7 Term Rep. 73.

&c. He can only enter up judg. 44. If an award be made on an im- ment for the sum found by the

proper stamp, and no application arbitrator. 1 East, 403. 1 Bos. & be made to inforce it, the court will Pull. 480. 3 Bos. * Pull. 244, and not set it aside. Preston v. East- 4 East, 310' accord. wood. Term Rep. 95.

51. If in such case the award be 43. An award in writing and under made before the term, the defendant

seal need not have a deed stamp, can only impeach it within the four unless delivered as a deed; if only first days of term. 3 Bos. 8. Pull. delivered as an award, it is sufli- 24. cient that it have the award stamp 52. And persoval service of the aof 10s. Broun v. Vauser. 4 East, ward is not necessary to warrant 5St.

the issuing of execution, if the at46. An award which is required to be torney of the defendant has been

made in writing, &c. and ready to served with the award. 3 Bos. & be delivered at such a time, is com

Pull. 24-H. plete if made in writing and ready 53. Where a verdict is taken for a to be delivered by the arbitrator certain sum, subject to the award of within the time, though not actual- an arbitrator, he cannot award a jy delivered. 4 East, 584.

greater sum than that for which the 47. The court of C. P. refused to verdict was taken; and if he do, po

skabt an attachment for non-per- assumpsit by implication will arise

of B.

to pay even to the extent of the ver- sion by virtue of that statute, does dict so taken. Bonner v. Charlton. not attach on awards made under 5 East, 139.

orders of nisi prius. Synge v. Jer54. Upon a reference of all actions, voise. 8 East, 466.

controversies, &c. and also of two 60. In debt on bond to perform an adistinct matters of difference ; if the ward, the defendant after

oyer alarbitrator omit to decide one of leges a performance of the award, such distinct matters, that vitiates by paying two days after the award, the whole award; which cannot to the partner of the plaintiff (not therefore be enforced by attach- party to the bond, but whose joint inent. Randall v. Randali. 7 East, concerns with the plaintiff were re81.

ferred to the arbitrator) of three 55. Where an award is made after several sums of money awarded to

the time originally given to the ar- be paid by him: the plaintiff rebitrators, but authority was also plies a demand by himself on the given to them to enlarge the time; day of the award made, and a rean award within the enlarged time fusal by the defendant : the repliauthorised is good upon the face of cation was adjudged bad. Peters it, though it do not recite that he ar- v. Pierce. 8 Nass. 398. bitrators 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.

BAIL. Lousley. 8 East, 13. 56. Where the costs of a cause, and

I. On Arrest in Civil Cases. of the special jury, are distinctly II. Of the Bail-Bond, and Actions and separately submitted to the dis

thereon. cretion of arbitrators, they must dis- III. Scire Facias, or other Proceedtinctly adjudicate upon each ; oth

irgs against Bail. erwise the award is bad (but the

IV. Surrender of Principal. plaintiff in this instance agreed to V. What else shall discharge Bail. abandon it for so much). Ib. VI. Writ of Error ; its Effect as 57. The award was also set aside for

relates to the Bail, and of Bail so much as the arbitrators, without authority, had directed to be paid VII. Bail in Criminal Cases.

for their own expences. Ib. VIII. Special Bail, how and when put 58. Partiality and improper conduct

in. in an arbitrator, in making his award, without hearing the defend- I. On Arrest in Civil Cases. ant and his witnesses, cannot be pleaded in bar to an action on the 1. In an action by the loser at gaming bond conditioned for the perform- special bail shall be given. Turanee of the award ; but is only ner v. Warren. 2 Str. 1079.' 1 Salk. matter for application to the equita- 100. ble jurisdiction of the court to set a- 2. Bail on debt upon a bond to perside the award. Neither can a pa

form covenants. Anonymous. 1 rol agreement between the parties Sall. 100. Desbordes v. Horsey. 2 to waive and abandon the award be Str. 959. pleaded to such aetion. Braddeck 3. Bail to the action are not liable v. Thompson. 8 East, 344.

beyond the sum sworn to and the 79. The time limited by the stat. 9 costs, whatever the amount of the

and 10 W. 3, c. 15, s. 2, for setting damages recovered may be. Jackaside awards, made under submis

Hussell. 1 Doug. 330.



Nor beyond the sum in the ac etiam ant ought not to be holden to bail

clause in the writ. Goubaldo v. Cog- for the penalty, but only for the anoni. 1 Salk. 102.

inount of the damages incurred. 4. Bail to the sheriff on an attachment Kirk v. Strickland. 2 Douglas,

for not bringing in the body, is lia- 449. ble to the whole debt and costs. 14 Bail by executors and in inferior Fowlis v. Macintosh. 1 Douglas, courts. Page v. Price. 1 Salkeld, 330.

98. 5. Having no effects in England no 15 On a removal ont of an inferior

objection to bail, without other sus- jurisdiction, plaintiff here is bound picious circumstances. Smith and to accept the bail below, except in Scandrett. 1 Black. 4+4.

London. Anon. 1 Salk. 97. 6. Qu. Whether it is sufficient objec- 16 There cannot be special bail in a

tion to bail that he lives within the second action, on a second judgverge of the court. Glead v. Mack- ment. And after defendant has ay. 2 Black. 956.

two terms without being charged, he A foreigner, being bail, sworn and ex- shall be discharged as to the first. amined by an interpreter. Ib. 937. Chambers v. Robinson.

2 Strange, 7. The court will never go into the 782.

merits on a motion to discharge a 17 No special bail in debt on judgparty on filing common bail, but ment after defendant has been suwill take the fact as sworn to in the perseded. Hall v. Howes. 2 Str. affidavit to hold to bail. Hawkins 1039. V. Magnall. 2 Doug. 466. 1 Salk. 18 A man may be holden to bail in

99 and 100. 1 L. Raym. 383. a second action pending the first, if The keeper of a prison cannot be bail. the bail on the first foresworn and Ibid.

worth nothing. Olmius v. Delanay. 8. Nor an attorney, nor the clerk to 2 Strange, 1216. the defendant's attorney.

Bou- 19 Where the defendant might have logne v. Vautrin. 2 Doug. 467, n. pleaded bankruptcy in the first acCooper, 828.

tion, he shall give bail in debt upon 9. No sheriff's officer, of any kind, the judgment. Combes v. Blackcan be special bail.

Bollanil v.

hall. 1 Str. 477. Pritchard. 2 Black. 799. Dolde- 20 Special bail shall not be required ren v. Feast. 2 Str. 890.

in debt upon a judgment in trespass, 10. Where the plaintiff might have though above ten pounds damages.

judgment against the original de- Cressy v. Kell and others. 1 Wils. fendant, the bail below are liable 120. See 4 T. R. 570, contra. for the whole debt and costs. Or- 21. In an action upon the judgment, ton & Another (assignees) v. Vincent though for above 10l. the defendant 8 Another. Cowper, 71.

shall not be held to special bail, if 11 Bail on a testatum capias, from the original demand was under that Middlesex, put in where the writ is

Anon. Coup. 128. Pamer served, and not in Middlesex, is as v. Needham. 3 Burr. 1389. no bail, and the plaintiff may pro- 22 In debt on judgment, the defendceed as if the defendant had not ap- ant may be holden to bail, if no bail peared. Fisher v. Levi. 2 Black. given in the original action, not1061.

withstanding error brought on the 12 In an action upon a replevin original action, and bail thereon.

bond, common bail shall be filed. Kendal v. Carey. 2 Blackstone, Dur Ormond v. Brierly.

1 Salk.

768. 99.

23 In an action of debt on judgment 13 Iu debt on a bond conditioned for brought by the defendant" in the o

an indemnification, &c. the defend- riginal action for costs of a nonsuit,


he may hold to special bail. Night- ing to do with the process of the ingale v. Nightingale. 2 Black. court. Faulkner v. Iise. 2 Bus. 1274.

& Pull. 150. 74 An accomplice, who, in a case 31 If bail be put in without any desout of the statutes,

under the cription, one of whom afterwards practice allowed, admitted by the proves to be a clerk to an attorney, Justices of peace as a witness, and the plaintiff may treat the bail as a is afterwards prosecuted, has only nullity, and take an assignment of a claim to the mercy of the crown the bail bond. Fenton v. Ruggles. founded on an express or implied 1 Bos. 8 Pull. 356. Wallace v. promise of the magistraté, on a con- Arrowsmith. 2 Bos. & Pull. 49. dition to be performed, and it de- 32 In K. B. the plaintiff must except pends on his conduct in fully and to such bail, and cannot treat it as fairly disclosing the joint guilt of a nullity. R. v. Sheriff of Surrey. himself and his companions, wheth- 2 East, 181. Fotcall v. Bowerman. er the court will admit him to bail, 2 East, 182. that he may apply for a pardon. 33 An indorser of a bill of exchange R. v. Rudd. Coup. 331.

may be bail for the drawer in au ac25 Wherever an accomplice has a tion against him upon the bill. right to a pardon, (which he may

Harris v. Manley: 2 Bos. 8 Pull. have, 1. by approvement, 2. by vir- 526. tue of the statutes 10 and 11 Will. 34 A defendant cannot enter into the 3, and 5 Ann. C. 4 and 3, by royal recognizance of bail : but each of proclamation,) the court will bail his bail shall bind hiniself in double him that he may apply for it. So the sum sworn to. Reg. Gen. 1 also they will if he has only an e- Bos. J. Pul. 530. quitable claim to a recommenda- 33 Neither the bail to the sheriff, nor tion for mercy, gained by being ad- a defendant who lias given a bail mitted evidence for the crown, un- bond, can be held to bail in an acder the practice allowed. Ibid. tion brought by the sheriff on that 26 It is generally speaking no objecó bond. Brander go al. v. Robson. 6 tion to bạil that they are indemnifia Term Rep. 336. Mellish go al. v. ed. Neat v. Allen. i Bos. & Pull. Petherick. 8 Term Rep. 450. 21.

36 But bail in the original action af2 But the court of C. P. rejected ter judgment recovered against

bail, who had received verbal a them on the bail bond, may be hold. promise of indemnity from the de- en to bail in an action on such judgfendant's attorney ; giving time to ment. Prendergast v. Davis & al. put in fresh bail. Greensill v. Hop- 8 Term Rep. 85. ley. i Bos. f Pull. 103.

37 Bail to the sheriff are liable to the 28 Neither an attorney nor a clerk to plaintiff's whole debt (without rean attorney can be bail to the ac- gard to the sum sworn to) and costs, tion. Laing v. Cundall.

provided they do not exceed the peBlack. 76.

Whether the clerk be nalty of the bail bond. Mitchell v. articled or not. Cornish v. Ross. 2 Gibbons. 1 H. Black. 76. StevenH. Black. 350.

son v. Cameron. 8 Térm Rep. 28. 29 And though he be not clerk to the 38 And so is the sheriff in the case of defendant's attorney.

Redit an attachment against him for not Broomhead. 2 Bos. f. Pull. 564. bringing in the body : for he ought 30 It is not sufficient ground to reject to put the plaintiff in the same situ

a person as bail that he is described ation as if good bail were put in 6 of A. in the county of B., gaol and justified. Foulds v. Nackinkeeper,” for he might be a corpora

tush. 1 H. Black. 283. tion gaol keeper, and so have noth- 39 But the oourt will relieve him on

1 H.

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