« ForrigeFortsett »
mutual, though no other part of the award was valid. In ALBANY,
August 1803 Simon v. Gavil, i Salk, 74. the words were, " that all suits "now depending shall cease," and it was urged in error to
Purdy be final, “ because the meaning is not that the party shall Delavan. "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. i 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 bcing for consequential damages, conimence 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 obseryation, there is any technical rule, by which this declaration will be deemed trespass, the court will apply it. In Scott 5. 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
ALBANY; is no' method of supporting the declaration, without first
U setting aside all the rules of pleading which relate to trespass and conspiracy.c o m site up 38 poi
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 nousuit 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 anthorities 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 " 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 prose6 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 appears, 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, is no doubt correct; that case decided vi et armis to be in
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 Delavan. 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 y. Dixon, 1 D and E. 276. Dickson • The rule is
rather where v. Chifton, 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,
d the counts cantrespass, 3 Black. Com. ch. 12. p. 208, take it either as not be joined.
• See Tida's pracone or the other, it is well brought. But, at all events, tiek 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 demurrer 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 actt prevents that, and therefore nothing perfectly alike can be found in their books. That the verdict is regulating cer
tain proceedcontradictory, has not been touched on in argument, ings in crimi
nal cases, 21st though made a point in the outset. If the position of March, 1801,
S in c. 60, S. 19 I the other side is true, there never can be a conviction upon one count of an indictment, where there is an ac-N. Y. 264) quittal 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 speCialdemurrer, it might have been otherwise. In Brown,
found against Mr. Colden's positions. The case stated ALBANY,
August 1803. that we offered to give in evidence the award, and to prove that the matters submitted were the same as those charged
Purdy in the trespass. This was overruled, the verdict there. Delavan. fore must necessarily be set aside.
Per curiam, delivered by Livingston J. This was an action of trespass for burning the plaintiff's barn.
The award was not considered as a bar to the present suit, by the judge at the circuit, under whose direction, to that effect, the jury found the defendants guilty, and we are now to say whether this direction was right or not.
If the award was certain and final, it was a bar, and should have been so received. To me it appears to possess both of these properties.
The arbitrators were to determine
1. Whether the Delavans had destroyed the plaintiff's barn, &c.
2. What retribution was to be made him for such de. struction. If they thought the Delavans innocent, then they were further to decide how they were to get rid of "the plaintiffs claim, and be reimbursed for the expence which it had occasioned them. All these matters were clearly within the submission.
These duties might be performed either in terms, by awarding a certain sum to be paid by a fixed time, and directing releases to be mutually exacted, or by a mode of expression, which, although not so explicit, could convey no other meaning. When they order the suit to be no farther prosecuted, and Purdy to pay the costs of it, and the expence of the arbitration, they hold a language which cannot be misunderstood. If that suit can be no
further prosecuted, will it be right to permit the plaintiff "to evade a decision made by judges of his own choice, by commencing another action for the same injury? Will this court permit to be done indirectly what they have ordered shall not be done directly? Awards are more libeTally interpreted than formerly. This relaxation is carri*ed to such length, and very properly, that it is sufficient if they are certain, according to a common intent, and