1845. SUTCLIFFE v. BROOKE. Price (a), where the question was whether debt would lie on a promissory note payable by instalments, before the last day of payment had elapsed, Lord Loughborough, in delivering judgment says, "I cannot indeed devise a substantial reason why a promise to pay money not performed, does not become a debt, and why it should not be recoverable, eo nomine, as a debt. But the authorities are too strong to be resisted. Though the law has been altered with respect to actions of assumpsit, no alteration has taken place as to actions of debt." The principle is this, that debt or assumpsit will equally lie upon a parol contract, provided it be in respect of a specific sum of money; and an award is evidence of a contract to pay the sum awarded. In Bacon's Abridgment, tit. “Debt,” (A), it is said, "an action of debt is said to be founded upon contract, either express, or implied; in which the certainty of the sum or duty appears, and therefore the plaintiff is to recover the same in numero, and not to be repaired in damages by the jury, as in those actions which sound only in damages; as assumpsit, trover, &c. And in Comyn's Digest, tit. “Debt,” (A 8), it is said, "so debt lies upon every express contract to pay a sum certain as if a man covenants or grants to pay." The ground on which debt lies for money awarded is, that the arbitrament is the judgment or decree of the person selected by both parties. Debt equally lies upon a contract by parol only, when the contract is to pay a sum certain. This is not such a contract. The mutual promise laid in this declaration refers to a period antecedent to that in which the award was made. The submission does not embrace the action only: if it did, the issue in the action would denote that an award in favour of the plaintiff directed the payment of a specific sum, and possibly there might be some ground for supporting this declaration; but the submission being of the cause of action and all matters in difference, it is obvious, that at the time the parties (a) 1 H. Bl. 547. entered into the contract, they contemplated the possibility of the award directing some collateral act, which would have sounded in damages. The question as to whether an action will lie on a contract cannot depend upon the precise breach which may collaterally happen. In Comyn's Digest, tit. "Arbitrament," (I 2), it is said, "but in debt for a sum awarded, if the plaintiff shews a defective award, though more than he need to do, the declaration is bad:" "as if he shew an award of money on one part, and a release on the other part, when the submission was by parol, and, therefore, no remedy for the release." The consequence of introducing the present form of declaration would be this; that in assumpsit, it would be still requisite to shew an award good altogether; while in debt, it would be sufficient to shew an award good in part. Besides, if a question arose upon the Statute of Limitations, it would be impossible to say upon this declaration whether the case came within the 3rd section of the 3 & 4 Wm. 4, c. 42. If in substance this could be considered as an action of debt on an award, then the mutual promises are without meaning, and mere surplusage. Another objection is, that the action is by the assignees of an insolvent debtor, under the 51st section of the 1 & 2 Vict. c. 110; and it ought to appear that the submission to arbitration was with the consent, in writing, of the major part in value of the creditors. Cowling, contrà. As to the objection that the declaration does not shew the consent of the majority of creditors, it will be found that the same clause was contained in the 7 Geo. 4, c. 57, s. 24; and in Chitty's Statutes, p. 596, there is a note which states, that "in a case from the Home Circuit, at Hertford, a similar clause in a former act as to bringing actions was considered by the Court of King's Bench as merely directory, and that the omission to convene a meeting was no bar to the action of the assignees." [Pollock, C. B.-Though the assignees may be responsible to the creditors, the reference is nevertheless 1845. 307 SUTCLIFFE v. BROOKE. 1845. SUTCLIFFE 0. BROOKE. valid.] In the case of In re Warner and Others (a), it was held to be no objection to an award that married women were parties to the submission, and that infant parties were also interested in the subject-matter of the arbitration. As to the principal point, it is clear from the precedents that debt will lie either on the award or submission. This is an action of debt on the submission, coupled with the award; a precedent for which will be found in 2 Chit. Plead. 298, 7th ed. The only difference between that precedent and the present declaration is, that in the latter there is an averment of mutual promises. [Alderson, B.-If you say that the mutual promises make no difference, why not strike them out?] Their insertion cannot alter the form of the action. [Pollock, C. B.This is an action of debt on promises to perform an award before it is made, and the objection is, that debt will not lie on a promise to pay a contingent sum of money. If the averment of mutual promises were struck out, it would seem to be a good action of debt on the award.] In Carpenter v. Thornton (b), the Court seems to have thought that an action would lie on a promise to abide by an award. [Alderson, B.-If the mutual promise had been alleged after the making of the award, there would have been no objection.] The mutual promises are only what the law implies. [Pollock, C. B.-This declaration may be either on the promise to abide by the award, or on the award itself. The averments would apply to either case. You had better amend.] Cowling consented to amend on the usual terms. Amendment accordingly. (a) Ante, vol. 2, p. 148. (b) 3 B. & A. 52. 1845. DOE dem. GYDE v. ROE. claration in Trinity ejectment was intituled Trinity Term, 9 Vict." E. H. WOOLRYCH moved for judgment against the Where a decasual ejector. The declaration was intituled " Term, 9 Victoria," instead of the "8 Victoria;" but the notice, which was not dated, called upon the tenant to in next Michaelmas Term. appear He submitted that the notice, though not dated, would take effect from the time of service; and referred to Doe dem. Woodroffe v. Roe (a), where the Court of Common Pleas allowed a rule under similar circumstances. 66 instead of and the notice, tenant to appear in next Michaelmas Term; the Court granted a rule for judgment against the casual ejector. BEVINS v. HULME. ASSUMPSIT. The declaration stated, that before and Assumpsit. The declara tion stated that at the time of the making of the promise hereinafter mentioned, the defendant and one W. Andrew were in the defendant : and A. were in partnership as attorneys, and in consideration that the plaintiff would retain them as such attorneys, to conduct an action at the suit of B. against one L. for negligent driving, the defendant and his partner promised to fulfil their duty as such attorneys in and about prosecuting the said action, and recovering damages it then alleged that the defendant and his partner did, under the said retainer, com. mence an action against L., and such proceedings were thereupon taken that B. recovered judgment against L. for 567. 15s.: that afterwards the defendant and his said partner, as such attorneys as aforesaid, for obtaining satisfaction of the said damages, sued out a writ of fi. fa., to which the sheriff returned that he had levied 97., part of the damages, and nulla bona as to the residue; that the defendant and his said partner, as such attorneys as aforesaid, for obtaining satisfaction of the said residue, issued a ca. sa, by virtue whereof L. was imprisoned, and paid the residue of the damages to the governor of the gaol, who paid the same to the defendant and his partner, as such attorneys as aforesaid: that before they received the same they sent, as such attorneys as aforesaid, to the gaoler, a discharge of L. out of custody, by virtue whereof he was discharged. Breach: that although the defendant and his partner received the said damages, and the plaintiff duly paid to them as such attorneys as aforesaid their costs and charges of prosecuting the said action, yet they had not paid to B. or the plaintiff, the residue of the said damages. Semble, that the declaration was bad on special demurrer, for not alleging that the execution was sued out within a year and a day after judgment. 1845. BEVINS v. HULME. partnership as attorneys; and thereupon heretofore, to wit, on, &c., in consideration that the plaintiff, at the request of the defendant and his said partner W. Andrew, would retain and employ them as such attorneys as aforesaid, to prosecute and conduct a certain action, by and at the suit of one John Bevins, the father of the now plaintiff, against one S. Lowe, to recover damages for the injury sustained by the said John Bevins, by reason of the said S. Lowe having before then negligently driven a certain gig upon, against, and over the said J. Bevins, for certain reasonable fees and reward, to be therefore paid by the plaintiff to the defendant and his said partner, they the defendant and his said partner, then and long before the commencement of this suit, to wit, on, &c., promised the plaintiff to observe, perform, and fulfil their duty as such attorneys, in and about prosecuting the said action for the plaintiff, and in and about recovering damages for the said injury, and in relation thereto, and to do their duty as such attorneys as aforesaid in and about the premises: that in pursuance and part performance of the said promises, the defendant and his said partner did, under the said retainer of the now plaintiff, afterwards, to wit, on, &c., commence an action on the case against the said S. Lowe, at the suit of the said J. Bevins, in her Majesty's Court of Common Pleas at Westminster, to recover damages for the said injury so sustained by the said J. Bevins as aforesaid; and such proceedings were thereupon had and taken by the defendant and his said partner, under the said retainer of the now plaintiff in the said action, that afterwards, to wit, on the 19th day of May, A.D. 1841, by the consideration and judgment of the said Court, the said J. Bevins recovered against the said S. Lowe 56l. 15s., which were adjudged to the said J. Bevins in and by the said Court, for his damages by him sustained, as well on occasion of the said grievance so complained of by him as aforesaid, as for his costs and damages by the said J. Bevins, about his suit in that behalf expended, whereof the said S. Lowe was convicted. And |