Sidebilder
PDF
[graphic]

mutual, though no other part of the award was valid. In ALBANY,

° r August 1803.

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. 'i Vin. Abr. 61. pi. 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 main-
tainable^ a 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 be<nnninor of each count is " For
"that," and not circuitous, as is necessary in actions on
the case, which being for consequential damages, com-
mence with" For that whereas." This declaration there-
fore, cannot be in case: and if it be trespass, it will not lie,
Itwill 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 observa-
tion, there is any technical rule, by which this declaration
will be deemed trespass, the court will apply it. In Scott
▼.Shepherd, 3Wils. 403. 2 Black. 892, the court held vi
etarmis 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 permit-
ted 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 cpnspiracy; 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
Wn, and negatives that they caused it to be burnt. There

[graphic]

y^LBAI8o' l* no method of supporting the declaration, without first 'setting aside all the rules of pleading which rekte to trespass and conspiracy.

Colden, Hodman,and Muiuo contra. We shall tirstspeak: ~ 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 ail 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 niost relied on is, that the award is not of the matters which vyere submitted; th~t it differs fioni the submission. If this be the ease, 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 T. Dubarry, 12 Mod. 129. Dyer 212. 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 die question of that suit. The arbitrators were empowered to determine matters not die basis of that suit: yet thev confine themselves to award on that, and determine- against the plaintiff. The award begins, "whereas, a certain sail? 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 allcontivoenkt. On this account, therefore, the award is void; fertile submission was of all, and tliey 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 anv connexion between the suit then brought, and the suit referred /obj; the award. The rule laid down in Scott v. Shepherd, is

no doubt correct; that case decided vi et armia to be in

[graphic]

trespass. Where the declaration is not in those words, j^^JJ^' Jhe 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 bt rejected. Com. Di. Title Pleader, E. 12. 1 Bac. Ab. In Heme's Pleader, 233, a precedent in point will be found. As then the contra pacera may be rejected, tven 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 maybe united* Brown v. Dixon, 1 D and E. 276. Dickson ^J^1* v.Clifton, 2Wils. 319. Mast v. Goodson, 3 VVils. 354. theprocc»s,Pic*

. and judgment

So here, as we have an alternative either to bring case or arc different,

_ , . . . , the counts can

respass, 3 Black. Com. ch. 12. p. 208, take it either as not be joined.

ne or the other, it is well brought. But, at all events, ^ ',a-p^j is now too late to take advantage of this informality tended to have been insisted on; it ought to have been way of demurrer to the declaration. The English auoritics cannot apply exactly to the present case. By em, the civil injury is emerged in the felony: our ate actf prevents that, and therefore nothing perfectly tT,lelctfor kecan be found in their books. That the verdict is regulating c».

tain proceod

atradictory, has not been touched on in argument, ings in crimi

. T~ i • • fnalcasc», list

jugh made a point in the outset. It the position ot March, 1801, be other side is true, there never can be a conviction ^0, ^ 12J% upon one count of an indictment, where there is an ac-N-*•***• littal on another. The trespasses in the several counts supposed to be distinct; the finding, therefore, on does not contradict that on the others, and the stiff may take his verdict, and have judgment on that ich is for him. The court may view this case now efore them, as one with a double aspect; either to set le the verdict, or to arrest the judgment. The latter I never be done, where sufficient appears on the record tenable the court to pronounce. On a general or special demurrer, it might have been otherwise. In Brown

[graphic]

Awfs't 1803. '°,v 7°' a s'm'lar declaration is to be found; an action for" a conspiracy in the nature of case, ought to be without vi etarmis. Heme 71. 88. 147, is as here. The true distinction has already been taken between case and trespass, and there is no other; the latter is vi et armis, the other not. To answer the position, that in an action on the case there is always a recital, it will be enough to state* that slander is without a recital.* This, therefore, proves

•The research- that counts in case, begin as well with, as without one,

es of the re- ... , .. . , u

porter have not and as it is now after verdict, against the peace must be precedent0 "^rejected as surplussage, and then the declaration is plainStaSfKTty case- The contradiction in the verdict can be suptkm* ported only by the court's intending that all the counts

are for the same trespass, but no intendment is ever made to overturn a verdict.

Benson in reply. The counsel for the plaintiff contend that the declaration is right. That it is either case or trespass: if not good as one, then good as the other. But surely they ought to elect, in what suit they will proceed j whether in trespass or in case. If in trespass, the award is clearly a bar on their own position, as it was made in an action for a trespass : if in case, why conclude against the peace? A plaintiff may count as he pleases, but he can not say trespass is case, and case trespass. The suit must be one or the other, and cannot be both. Strike out all that relates to trespass, and then there never was such a declaration seen. If the action is for the consequence of burning and the injury, it is consequential reparation that is sought, and must be case. If it is for the actual burning, it must be trespass. It must be one or the other, and cannot be both, at the fancy and will of the plaintiff. He cannot bring trespass, and call it an action in the nature of a conspiracy. But if one thing is to be rejected in substance and terms, and another to be added from intendment and supposition, a declaration may be made out of any thing. Trespass it cannot be, for the words in all the counts are conspiring and conspiracy: and case it cannot be, for they all begin and end in trespass. The authorities from Kyd 207. and 2 Lord Ray. will, on reading, be found against Mr. Colden's positions. The case stated Albany, that we offered to give in evidence the award, and to prove that the matters submitted were the same as those charged in the trespass. This was overruled, the verdict there, fore must necessarily be set aside.

[graphic]

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 destruction. 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 dearly within the submission.

These duties might be performed either in terms, by ■warding 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 liberally interpreted than formerly. This relaxation is carried to such length, and very properly, that it is sufficient jf $wy are certain, according to a common intent, and

« ForrigeFortsett »