So, where it was awarded that the defendant should pay a certain sum to the plaintiff, unless he should within twentyone days exonerate himself from certain payments and receipts, and in that case he was to pay a less sum: this award was holden to be inconclusive and bad. Pedley v. Goddard, 7 T. R. 73. So, where the award ordered a verdict to be entered for the plaintiff, and that the defendant should do certain work, and if the plaintiff should be dissatisfied with the work, he might adduce evidence before the arbitrator of its insufficiency, at any time within two months: the court held this latter part of the award bad; but that such part might be rejected, and the award stand good for the residue. Manser v. Heaver, 3 B. & Ad. 295. So, where the award merely ordered a nonsuit to be entered, without otherwise adjudicating on the matters in difference, it was holden bad, as not being a final determination of the matter of the suit; and this, although by the terms of the submission he had authority to order a nonsuit. Wild et al. v. Holt et al. 9 Mees. & W. 161. So, where all matters in difference between A. & B., partners, were referred, and the arbitrator awarded that A. was indebted to B. 3000l. and ordered payment, and that B., on payment thereof, should pay to certain bankers such sum as should be sufficient to release certain deeds of A. which had been pledged to them, but the award did not ascertain what that sum was: the court held that the award was not final on that point, and therefore bad. Hewitt v. Hewitt, 1 Ad. & El. N. C. 110. And see Re Marshall, 12 Law J. 104, qb. agreed to be bound by the opinion of a his opinion in favour of one of them final, although it recommended that a be compared with the parliament roll before the matter was settled, under a doubt whether the statute was not misprinted. Price v. Hollis, 1 M. & S. 105. So, where a cause and all matters in difference were referred, and the arbitrator awarded as to all, except a certain claim by the plaintiff for a loss on hats, and as to that claim he found that no sufficient evidence was laid before him to show that any loss had been sustained, up to that time: this was holden to be sufficiently final. Cockburn et al. v. Newton, 2 Man. & Gr. 899. So, an award that certain actions shall be discontinued, and each party pay his own costs, is final and good, being in effect an award of a stet processus. Blanchard v. Lilly, 9 East, 497, Hawkins v. Colclough, 1 Burr. 274. And see Yates v. Knight, 2 Bing. N. C. 277. So, where a suit and all matters in difference were referred, and the award found that the plaintiff had no demand upon the defendant with respect to the action or on any other account whatsoever, this was holden sufficiently final, although the suit was not thereby put an end to in terms. Jackson v. Yabsley, 5 B. & A. 848. Harding v. For

But where two parties barrister, and he gave this was holden to be printed statute should

shaw, 1 Mees. & W. 415. And see Eardley v. Steer, 2 Cr. M. & R. 327. Steepel v. Bonsall, 2 Har. & W. 11. Dibbin v. Marq. of Anglesea, 2 Cr. & M. 722. So, where the declaration was for two distinct causes of action, and the award ordered a general verdict for the plaintiff for a certain sum, this was holden sufficiently certain, without awarding specifically as to each cause of action. Bird v. Cooper, 4 Dowl. 148. See Gyde v. Boucher, 2 R. & W. 127, 5 Dowl. 127. Duckworth v. Harrison, 4 Mees. & W. 432. Savage v. Ashwin, 4 Mees. & W. 530. Cooper v. Langdon, 9 Id. 60. Malony v. Stockly, 12 Law J. 92, cp. On the other hand, where two actions, in which there were several issues, were referred, and the arbitrator found separately on the several issues, without stating that the finding terminated the suits the court held the award to be sufficiently final. Allen v. Lowe, 12 Law J. 115, qb.

That it is void.] If an award be void, the court will not on that ground set it aside, if nothing can be done upon it without suit or application to the court; but if the party can enforce it, without applying to the court to enable him to do so, as for instance, if the award order a verdict to be entered, there the court will set it aside, for otherwise the party might proceed to judgment and execution upon it. Doe v. Brown,5 B. & C. 384. And see Preston v. Eastwood, 7 T. R. 95.

For perjury or fraud.] The court will not set aside an award, although the affidavit in support of the application disclose strong imputations upon the testimony of a material witness, who was examined before the arbitrator. Scales v. East London Waterworks Co. 1 Hodg. 91. Nor will the court set aside an award, on the ground that the order of reference has been fraudulently obtained; the application ought to be to set aside the order of reference, and should be made within due time after the order was obtained. Sackett v. Owen, 2 Chit. 39.

BOOK VI.

RULES, JUDGES' ORDERS, ETC.

SECTION I.

Affidavits.

Make a draft of the affidavit; and having corrected and settled it, engross it on plain paper, and have it sworn either in court, or before a judge or commissioner.

The following is a general form:

In the Queen's Bench [or " Common Pleas," or Exchequer of Pleas."

Between John Nokes, plaintiff,

and

Joseph Styles, executor of the last will and testament of John Styles, deceased, defendant.

Joseph Styles, of Russell Square, in the County of Middlesex, merchant, the above-named defendant, Henry Smith, of Furnival's Inn, Holborn, in the County of Middlesex, gentleman, attorney for the said defendant, George Dunn, clerk to the said Henry Smith, and James Fraser, clerk to Thomas Andrews, of Serjeants' Inn, Fleet-street, in the city of London, attorney at law, severally make oath and say: And first," this deponent, Joseph Styles, for himself, saith that," [&c.] ; "And this deponent further saith that," [&c.] "And this other deponent, Henry Smith, for himself, saith that," [&c.] "And this deponent, George Dunn, for himself, saith that," [&c.] "And this deponent, James Fraser, for himself, saith that," [&c.] "And this deponent, Joseph Styles, for himself, further saith that," [&c.] And these several deponents, Joseph Styles. Henry Smith, George Dunn, and James Fraser, further say that," [&c.]

66

If sworn by two or more persons, the jurat must be thus:] The above-named deponents, Joseph Styles, Henry Smith, George Dunn, and James Fraser, were severally sworn [&c. as above.]

If sworn before a commissioner, by a markman, or person who from his signature, appears to be illiterate, the jurat must be thus: "Sworn at in the county of this day

of 1843, before me; and I hereby certify that the above affidavit was read in my presence to '[the deponent],' and that he seemed perfectly to understand the same, and that he [made his mark, or' wrote his signature] thereto in my presence.”

L.M.

A Commissioner of," &c.

Title of the court.] In strictness, in all cases, the affidavit should be intituled in the court in which it is to be used. Osborne v. Tatum, 1 B. & P. 271. But if there be any other thing on the face of the affidavit, which sufficiently indicates the court in which the affidavit is to be used, it is usually deemed sufficient. If sworn before a judge of the court, it may be read, although not intituled. R. v. Hare, 13 East, 189. And by R. G. H. 2 W.4, s. 4, 'an affidavit sworn before a judge of any of the courts of King's Bench, Common Pleas or Exchequer, shall be received in the court to which such judge belongs, though not intituled of that court; but not in any other court, unless intituled of the court in which it is to be used." So, where an affidavit was sworn before the filacer, and used in the court of which the filacer was an officer, it was holden sufficient, although not intituled of the court; Bland v. Drake, 1 Chit. 165; and the same, if sworn before a commissioner, and he states himself in the jurat to be a commissioner of the court. R. v. Hare, 13 East, 189; and see Urquhart v. Dick, 3 Dowl. 17. And even where an affidavit is sworn in Scotland, before a commissioner, who describes himself in the jurat as a commissioner of the courts of Exche. quer and Common Pleas in England, the court of Exchequer held that it might be used in either of the courts, although not intituled; White v. Irving, 2 Mees. & W. 127; and that it might be intituled of the court in which it was to be used, after it was sworn. Perse v. Browning, 1 Mees. & W. 362.

Where an affidavit was intituled "In the Common Place," instead of "In the Common Pleas," it was holden sufficient. Rolfe v. Burke, 4 Bing. 101. Where a prisoner, in the custody of the sheriff of a county under process from an inferior court, was removed into the custody of the marshal by a habeas corpus cum causâ, affidavits intituled "In the King's Bench," were holden by that court to be properly intituled, although it was objected that, as the habeas was directed to the sheriff, and not to the judge of the inferior court, the body alone was removed, and not the cause. Perrin v. West, 1 Har. & IV. 401. 5 Nev. & M. 291.

Title of the cause.] If the affidavit be made in a cause in court, it must be intituled correctly in the cause; otherwise it cannot be used. Even where a cause is removed by certiorari from an inferior court, all affidavits in it afterwards must be intituled in the cause. Franks v. Wicks, 9 Dowl. 489. So, where an award is made in a cause, even the affidavit of the execution of a power of attorney to demand performance of the award, must be intituled in the cause. Doe v. Stilwell, 6 Dowl. 305. And the courts require great particularity in the manner of doing it. Therefore where the affidavit was intituled C. D. at the suit of" A. B., instead of A. B. against C. D., Gurney, B. held it to be bad. Richard v. Isaac, 1 Cr. M. & R. 136. So, if the title state the surname only, and not the christian name, of the plaintiff or defendant, the affidavit will be bad. Clothier v. Ess, 2 Dowl. 731. Fores v. Diemar, 7 T. R. 661. Anderson v. Baker, 3 Dowl. 107. And where in the title of an affidavit in an action on a bill of exchange, the initial merely of the defendant's christian name was given, it was holden that it should be accompanied by an affidavit that the defendant had signed the bill in the same way. Hilbert v. Wilkins, 8 Dowl. 139. So, in an action by or against two or more persons, if the title of the affidavit state the christian and surname of one, with the words "and another," or others," the affidavit will be bad. Doe v. Want, 8 Taunt. 647, 2 Moore, 722. Doe d. Prynne et al. v. Roe, 8 Dowl. 340. Bullman v. Callow, 1 Chit. 727. Or if in ejectment on several demises, the affidavit be intituled "John Doe on the demise of C. v. Richard Roe," it will be insufficient. Doe d. Cousins et al. v. Roe, 7 Dowl. 53. So, where it was Doe " on the demise or demises" of A. B. & C. D., it was holden bad. Doe v. Lloyd, 12 Law, J. 95, qb. But where process, which now in all cases is non-bailable, is sued out against several, an affidavit made by any one of them, before declaration, may be intituled A. B. v. C. D. who is sued with E. F., Mackenzie v. Martin, 6 Taunt. 286, or in a cause of A. B. v. C. D. only; Dand. v. Barnes, 6 Taunt. 5; for until declaration, it cannot be known who will be defendants in the action, the plaintiff having it in his power to declare against