on or before the twenty-third day of June instant, as by the said bonds may appear. Now, know ye that we, the said arbitrators, whose names are hereunto subscribed, and seals affixed, taking upon us the burthen of the said 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 fur 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 attendance 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. 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 ALBANY, August 1803 Purdy V. Delavan. August 1803. Purdy V. Delavan. ALBANY, this action, as it at present appears on the award, cannot be supported, being evidently a suit in trespass, which will not lie for a conspiracy, as the remedy ought 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 conclusive, therefore, on the cause of action, not the mere proceedings it says, the "aforesaid suit shall be no further prosecuted." 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 defendant, on behalf of himself and partner, of all differences 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 authority, in answer to the objection that may be made, of the submission being only by some of those who were proceeded against in the first action: but they had a right to refer for the other, as they were the parents of the de fendant Samuel. In the case cited, one partner submitted for all, and yet the award was not on that ground impeachable. The same principles will be found in Kyd, 212. Hawkins v. Colclough, 1 Burr. 274. Gray v. Gray, Cro. Jac. 525. So in Harris v. Knipe, 1 Lev. 58 an award "that all suits and controversies shall cease," was held good and August 1803. Purdy V. Delavan. mutual, though no other part of the award was valid. In ALBANY, Simon v. Gavil, 1 Salk, 74. the words were, "that all suits "now depending shall cease," and it was urged in error to be final, "because the meaning is not that the party shall give over and begin again, but that the suit should abso"lutely cease for ever, so that the right is gone, because "the remedy is." Even an award "that a suit in chancery "shall be dismissed" is final; because the court "will in"tend this a substantial dismission and perpetual cession." Knight v. Burton. 1 Salk. 75. 3 Vin. Abr. 67. pl. 28. As the second point will be spoken to by the other counsel in the cause, it will be necessary only to go to the third. The whole declaration is for a direct trespass: if so, it is not maintainable,on à conspiracy. The mode ought to have been by an action on the case, or a writ of conspiracy, according to the register. That the present is a declaration in trespass cannot be doubted. The beginning of each count is "For "that," and not circuitous, as is necessary in actions on the case, which being for consequential damages, conmence with "For that whereas." This declaration therefore, cannot be in case: and if it be trespass, it will not lie. It will be found, on examining the authorities, that a bare conspiracy, without any act done in consequence, cannot be the foundation of any suit. The first six counts, though they alledge conspiracy, and that the barn, &c. was burnt, do not charge us with it. If, in addition to this observation, there is any technical rule, by which this declaration will be deemed trespass, the court will apply it. In Scott .Shepherd, 3 Wils. 403. 2 Black. 892, the court held vi et armis conclusive on the question; here the words are against the peace of the people, which is tantamount. Are not the counts charging a direct injury to the plaintiff? Do they not shew it in express terms? If so, shall it be permitted the plaintiff, by adding the words conspiracy, &c. to use the declaration just as it suits his purpose? as case to maintain the suit as a conspiracy; and when objected to on account of form, to turn round and say it is trespass. If it be so, it is the same as saying the defendants burnt the barn, and negatives that they caused it to be burnt. There August 1803. ALBANY, is no method of supporting the declaration, without first setting aside all the rules of pleading which relate to trespass and conspiracy. Purdy V. Delavan. Colden, Hoflman, and Munro contra. We shall first speak as to the award. It is necessary that all awards should be final; and therefore either to be nonsuit or discontinue is insufficient, though to enter a retraxit is good. These positions shew the nature of awards on this point. That all suits shall cease comes within the rule of a retraxit, but that a suit shall be no further prosecuted cannot: the court, however, will determine whether they are tantamount. But this is not the real ground of objection; the one most relied on is, that the award is not of the matters which were submitted; that it differs from the submission. If this be the case, it is void, and no averment in pleading, not even an affidavit of the arbitrators as to their meaning, can help it. For this the court will find authorities in Bacon v. Dubarry, 12 Mod. 129. Dyer 242. b. Kyd on Awards, 207. The award must set forth, that it is on the matters submitted. What then was submitted? has the award been made in pursuance? The arbitration bond mentions, “all "66 questions, disputes and controversies, touching the de"struction of the said barn," &c. It does not submit the question of that suit. The arbitrators were empowered to determine matters not the basis of that suit: yet they confine themselves to award on that, and determine against the plaintiff. The award begins, "whereas, a certain suil, ascertaining what is meant by them. They then proceed and say, "that the aforesaid suit shall be no further prose"cuted," when they were to determine on all controversies. On this account, therefore, the award is void; for the submission was of all, and they have confined themselves to one. Besides, they only say, "if he shall abide the award, and not on the premises." From the case, it ap pears, the award was properly rejected; it is not stated that any evidence was given on the trial, of any connexion between the suit then brought, and the suit referred to by the award. The rule laid down in Scott v. Shepherd, no doubt correct; that case decided vi et armis to be in Purdy V. Delavan. rather where the counts can trespass. Where the declaration is not in those words, ALBANY, August 1803the action is in case: so here, it not being stated to be. vi et armis, the suit must be considered as on the case for a conspiracy, and every count expressly alleges, that the act conspired to be done, was absolutely performed. Here the conspiracy is the git of the action, and that being found, the words "against the peace," &c. may be rejected. Com. Di. Title Pleader, E. 12. 1 Bac. Ab. 94. In Herne's Pleader, 235, a precedent in point will be found. As then the contra pacem may be rejected, even allowing that the formal commencement of each count "For that" is bad in case, it is settled wherever there may be the same plea and judgment, different counts may be united.* Brown v. Dixon, 1 D and E. 276. Dickson The rule is v. Clifton, 2 Wils. 319. Mast v. Goodson, 3 Wils. 354. the process,plea and judgment So here, as we have an alternative either to bring case or are different, trespass, 3 Black. Com. ch. 12. p. 208, take it either as not be joined. SeeTidd's prac one or the other, it is well brought. But, at all events, tice, 12. a (w.) it is now too late to take advantage of this informality intended to have been insisted on; it ought to have been by way of de murrer to the declaration. The English authorities cannot apply exactly to the present case. By them, the civil injury is emerged in the felony our state act prevents that, and therefore nothing perfectly alike can be found in their books. That the verdict is contradictory, has not been touched on in argument, though made a point in the outset. If the position of the other side is true, there never can be a conviction upon one count of an indictment, where there is an acquittal on another. The trespasses in the several counts are supposed to be distinct; the finding, therefore, on one, does not contradict that on the others, and the plaintiff may take his verdict, and have judgment on that which is for him. The court may view this case now before them, as one with a double aspect; either to set aside the verdict, or to arrest the judgment. The latter will never be done, where sufficient appears on the record to enable the court to pronounce. On a general or special demurrer, it might have been otherwise. In Brown. †The act for regulating cer tain proceedings in crimi nal cases, 21st |