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ALBANY, sarily left to act as his trustee in the disposition of the August 1803.

U property. If he executed the trust fairly, he has dischar. Abbott ged his duty, and it was not incumbent on him to follow Broome. the defendant, and repeat his application to receive what

he ought at first to have accepted. The sale at auction was therefore justifiable, and the defendant ought to be charged 'with a total loss, deducting the proceeds of the sale, and the value of the freight from St. Christophers to NewYork. . .

shall no further

osecuted.”

to an action on

Ebenezer Purdy against Mathew Delavan and Sa

muel Delavan. . An award This was an action for a conspiracy, in burning the in the paid that plaintiff's barn, and the various articles it contained.

her. The declaration contained seven counts. is sufficiently fi- The first stated the plaintiff possessed of a barn and nai and certain, and a good bar close, containing hay, &c. The defendants, knowing the the casc for the premises, and contriving to injure, &c. the plaintiff, by a samc offence.

certain conspiracy, confederacy, and agreement, did cause the barn, &c. to be set on fire, destroyed and consumed.

Second like the first, except that the defendants did conspire to set on fire, and cause to be set on fire, and consumed, and destroyed, the barn aforesaid, containing, &c. and by means of the conspiracy aforesaid, the barn was set on fire and consumed.

Third. The same, stating that the defendants, by conspiracy, &c. did procure the barn, &c. to be set on fire, destroyed, and consumed.

. . . . Fourth. That the defendants did conspire, &c. to set on fire and cause to be set on fire and destroyed, the barn last aforesaid, &c. with an averment, that the barn was in putsuance of the conspiracy aforesaid, set on fire and consua med.

Fifth. That the defendants, by a conspiracy before had, did cause and procure the barn to be set on fire and cond' sumed.

Sixth. The same, only enumerating the contents of the barn."

Seventh. "That the defendants conspired to set on fire,

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and they, in pursuance of their conspiracy, did, &c. and did ALBANY,

4 August 1803 cause to be, by fire destroyed, the barn aforesaid. 1:

All the counts began as in trespass, “ For that” con- Purdy cluding with “ alia enorma against the peace, "* &c. Delavan.

The defendants separately pleaded the general issue. It with a notice, that on the trial they would severally give said that an ac

tion upon the in evidence in bar thereof, and according to the form of case is founded

upon a wrong, the statute, a former suit in trespass against the defend- and concludes ant Mathew, Hannah his wife, and the other defendant Vaugh. 101. F.

N. B. 92. E. Samuel, for breaking the close of the plaintiff, and also but this is a for burning his barn, containing, &c.'and that they could mistake, for acgive further in evidence, a submission of the said suit by cem, are a spe

cies of actions the plaintiff on the one part, and the said Mathew and vi et armis. See Hannah for themselves, and the said Samuel their son, an Mec. 65. infant, on the other part, to the arbitrement of certain ar. bitrators mentioned, and their award thereon made, by which the plaintiff was ordered to "no further prosecute the said suit,and to pay the defendant, Mathew Delávan, 14 dollars 68 cents costs; and further, that the suit on which the said award was made, was for the same trespass for which the present action was brought. The submission and award were in the following words': : !

The condition of this above obligation is such, that whereas, a barn of the above Ebenezer Purdy hath been destroyed by fire, together with hay, grain, and other va. luable articles which it then contained : and whereas, the said Ebenezer Purdy hath instituted an action in the Supreme Court of Judicature of the State of New York, against the before named Mathew Delavan, and Hannah his wife, and Samuel Delavan his son, for burning and destroying said barn, in which action the said Mathew Delavan, Hannah his wife, and Samuel Delavan, have pleaded not guilty, so that the said action is now at issue : and whereas, it is just and right that if the said Mathew, and his wife, and his son, or any, or either of them, have or hath in fact, burned or destroyed the said barn, or have or hath in any manner aided, abetted, assisted, contribu, ted, occasioned, or been privy to the burning or destruction thereof, (which they and each of them wholly deny)

ALBANY, that then he, the said Mathew Delavan, shall pay to the August 1803

said Ebenezer Purdy, all the damages he hath sustained Purdy

thereby, which the said Mathew Delavan hereby agrees Delavan. to do. And whereas, the said Ebenezer Purdy and Ma.

thew Delavan, have mutually agreed to discontinue the said action, and to submit all questions, disputes and controversies touching the destruction of the said barn and the contents thereof, and the damages the said Ebene. zer Purdy hath sustained thereby, to the judgment and award of Epenetus Wallace and Hachaliah Brown, Esq. and Stephen Gilbert, Farmer, or any two of them, arbitrators mutually chosen by and between the said parties, 10 arbitrate, award, and determine, touching the premises. Now, therefore, the condition of the preceding obligation is such, that if the above bounden Ebenczer Purdy, his heirs, executors, or administrators, shall and do, well and faithfully abide by and perform the judgment, arbitrement, and award of the said Epenetus Wallace, Hachaliah Brown, Esq. and Stephen Gilbert, or any two of them, so that their award be made in wri: ting, and ready to be delivered to the said parties, on or before the twenty-third day of June instant, then this obligation to be void, or else to remain in full force or virtue.

Whereas, a certain suit has heretofore been commenced in the Supreme Court of Judicature of the State of New-York, by Ebenezer Purdy against Mathew Delde van, and Hannah, his wife, and Samuel Delavan, his son, for the burning and destroying the barn of the sald Ebenezer Purdy, by fire: and whereas, for the putting an end to the said suit, they, the said Ebenezer Purdy, and Mathew Delavan, by their several bonds and obligde tions, bearing date the second day of June, in the year of our Lord one thousand eight hundred and one, are be come bound each to the other of them, in the penal sum of two thousand dollars of lawful money of the United States of America, to stand to and abide the award and final determination of us, Hachaliah Brown, Stephen bert, and Epenetus Wallace, so as the said award be made in writing, and ready to be delivered to the said parties

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on or before the twenty-third day of June instant, as by ALBANY,

August 1803 the said bonds may appear. Now, know ye that we, the said arbitrators, whose names are hereunto subscribed; Purdy and seals afixed, taking upon us the burthen of the said Delavan. award, and having fully examined and duly considered the proofs and allegations of both the said parties so made, publish this our award by and between the said parties, in manner following: that is to say, first, We do award and order, that the aforesaid suit shall be no furu ther prosecuted: and further, We do award and order, that the said Ebenezer Purdy shall pay, or cause to be paid, unto the said Mathew Delavan, fourteen dollars and sixty-eight cents, in full, for his costs and expences in defending the aforesaid suit, and also for his expences and aftendance on this arbitration. In witness whereof, we have hereunto set our hands and seals, the seventeenth day of June, in the year of our Lord, one thousand eight hundred and one. The defendants' counsel then moved the court to direct the jury to find a verdict for the defendants, on the principle, that the submission and award so given in evidence, barred the plaintiff of a right to maintain his present suit, which motion the judge overruled, declaring his opinion to be, that the award was not conclusive between the parties, so as to bar the plaintiff of his present action, with liberty, however, to the defendants to reserve the point, which was accordingly done. Vdiowah

The jury being charged by the judge upon the issue of not guilty, and having returned to the bar, said, they found the defendants guilty of the matter contained in all the counts in the declaration, except the last, and of those matters they found the defendants not guilty.

Woods for the defendants. The present motion is to set aside the verdict, and, if the court should be of opinion against us on that point, to arrest the judgment. On one of these grounds we must prevail, and for that purpose, I shall contend that the award was on the trial, final and conclusive evidence to bar the action : secondly, that the verdict finding the defendants guilty as to the first six counts and not as to the seventh, is contradictory; thirdly, that

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Purdy

ALI

X; this action, as it at present appears on the award, canAugust 1803.

not be supported, being evidently a suit in trespass,

which will not lie for a conspiracy, as the remedy ought Delavan.

to be by an action on the case. On the first point it
must be admitted, the award was intended to be final
and conclusive as to the burning the barn, &c. The
plaintiff ought not to be permitted, after a suit for that
very cause, and submitting it to arbitrators, who take
on themselves the burthen of the award, and absolutely
make it, to bring another suit for the same offence. The
plaintiff cannot, by merely varying his form of proceeding,
(if there be any variance in this case) bring a subsequent
action on the same grounds. The award is final and con-
clusive, therefore, on the cause of action, not the mere proceed-
ings : it says, the " aforesaid suit shall be no further prose-
cuted.” This must be taken as if it had been declared, the
defendants shall never again be impleaded for burning the
barn. The rule of construction in awards, is more liberal
than it formerly was: the courts look to what was designed,
because the arbitrators are judges of the parties' own choos-
ing, and not tied down to technical rules. In Strangford
v. Green, 2 Mod. 228, the submission was, by the defend-
ant, on behalf of himself and partner, of all differenecs
and controversies between them and the plaintiff. The
award was, “that all suits which are prosecuted by the
“ plaintiff against the defendant shall cease." This, said
the court, has the effect of a release. So here, that the
“suit shall no further be prosecuted,” will have the same
operation. Another inference is to be drawn from this au-
thority, in answer to the objection that may be made, |
the submission being only by some of those who were
proceeded against in the first action : but they had a rig |
to refer for the other, as they were the parents of the de
fendant Samuel. In the case cited, one partner submitte
for all, and yet the award was not on that ground impcache]
able. The same principles will be found in Kyd, 919. Have
kins v. Colclough, 1 Burr. 274. Gray v. Gray, Cro. Ja
525. So in Harris v. Knipe, i Lev. 58 an award
all suits and controversies shall cease," was held good

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