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ALBANY, consistent with fair presumption. It is 'matter of surprise, August 1803.

that courts should ever have disturbed awards, when from

the whole of them it was fairly to be collected, that the Delavan.

arbitrators proceeded on the matter submitted, and had decided every thing left to them. To an avidity of business, or an excessive jealousy of the interference of laymen, in matters which they deemed exclusively of their own province, must be imputed their readiness to listen to objections against decisions of this kind, and to set them aside under pretence of their being uncertain or inconclusive. More enlarged views at length prevailed, and judges discovered a laudable solicitude to maintain these extra judicial determinations, and thus put an end to controversies, if this could be done without violating certain fundamental rules, from which it was thought unsafe to depart. If certain to a common intent, and final, courts will not easily be induced to depart from them, and send the parties to a new litigation. That the award before us has these characteristics, can hardly be doubted. Whoever runs, may read and understand. It expressly

states that the arbitrators proceeded on the matter submiti ted, and if their directions, which are intelligible to any

capacity, are pursued with good faith, their decision will be final, as well as certain ; for, nothing more is necessary to render them so, than the plaintiff's not prosecuting further his suit or action, by which may be understood, his claim on this account, and paying the sum mentioned. The cases in 1. Burr. 274. and in Lord Raymond. 960. admitted of more doubt, and yet those awards were adjudged certain and final. In my opinion, therefore, this award ought to have been regarded as a bar, and the jury should have been directed accordingly. On this ground, I am for a new trial, which renders it unnecessary to examine whether the verdict be contradictory or not. There was also a motion in arrest of judgment, but if a new trial be granted, and the present verdict set aside, this application cannot prevail, and therefore it may be unnecessary to express an opinion on the grounds of it: but as this question was fully argued,

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Purdy

that the sa

Delavan,

August 1803.

XX; mission, and having fully examined, and duly consider

ed the proofs and allegations of the parties, did award, that the said suit should be no further prosecuted, and that the plaintiff should pay to one of the defendants, 14 dol. lars 68 cents, for his costs and expences in defending the suit, and attending the arbitration.

On this statement of the substance of the submission and award, it appears to me, that the reasonable and common intendment, from the language of the award is, a de. termination of the merits of the cause. The present Cause of action was fully and explicitly submitted. The award refers to the bonds of submission, and, of course, the ar. bitrators had their eyes fixed on the merits of the complaint, and the intent of the submission. The award states, that the proofs and allegations of the parties had been ex. amined and considered ; of course, the merits must have been fully heard. It then adjudged, that the said suit shall be no further prosecuted, and that the plaintiff shall pay the costs. This award could not have intended mere Ty a cessation of the suit referred to in the bond and award, with liberty to institute a fresh suit on the same matter This would have rendered the award altogether useless and absurd. The bonds had stated already, that the parties had agreed to discontinue the suit. The palpable intent and meaning of the award was, that the charge of the plaintiff was not supported, and that the same should be no further prosecuted, and should for ever cease. We are to consider the award as drawn up by men who were not skilled in technical language, and that it refers to, and is bottomed upon the bonds of submission, which hadde clared the agreement of the parties to be, that the then existing suit should be no further prosecuted; that the parties, by their proofs and allegations, must have for nished the arbitrators, with a full diseussion and know

ledge of the merits of their controversy; that the law re, quires awards to be liberally and favorably expounded;

so that they may answer the purpose for which they were intended; and under these considerations, we cannot doubt of the intent of these words, that the said suit shall

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* be no further prosecuted.It was as if they had said, ALBANY,

els August 180 3. the defendant shall be no further prosecuted upon the

Purdy charge ; for, why say the existing suit should be no further prosecuted, if no more was meant than what the parties had already agreed to do? why say that the suit shall not be further prosecuted, and the plaintiff pay the costs, if a new suit may be immediately brought? There was no possible use in such an award. It would not answer the terms or intent of the submission. Such a literal interpretation has no reason to support it. It would not be liberal or favorable. It would not be judging the award by a common intent, nor rendering it consistent with probable presumption. It would be contrary to the modern established rules of interpretation, and is, consequently, to be rejected.

It has indeed been held, that an award, declaring that a party should be nonsuited in an action he had brought tutun against the other, was not good, because it was not put-6 Mod. 232. ting a final end to the controversy, as a nonsuit was no bar to a new action. Upon this case, it has been observed, that had this been a new point, and res integra, it might have been said, in analogy to the construction put on other cases, that he who suffered a nonsuit, but afterwards brought another action, nominally performed the award, but in substance was guilty of a breach. The word nonsuit, has, however, become so peculiarly appropriated, to express one particular idea, that its meaning cannot be extended. But if an award be, that an action be discontinued, Kyd 141, 2, this is held to be good and final, although a discontinuance does not, in a technical sense, bind a party from bringing a new suit. This is a case strongly bearing upon the present; for, awarding that a suit shall be no further prose, cuted, is equivalent, at least, in strength and efficacy, to saying that such suit shall be discontinued.

So, an award that a suit in chancery between the parties should be dismissed, was good and final; for, it must be Knight v. Burunderstood that it shall be dismissed and cease forever ; that is a substantial dismission and cesser, and not the Salk. 75.S.C. shadow of one. o pst

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ALBANY, So, an award that all suits between the parties shall coase

V is good; for the meaning is not that the party should give Purdy over and begin again, but that the suit should cease ab

solutely forever, so that the right itself is gone with the

remedy. The same construction was given to these words Squire v. Gre vell, 6 Mod. 34, in an award, that all suits which are prosecuted by the 1. Ray. 697.* plaintiff against the defendant, shall cease. O o tal

ngford The only authority I have met with, which holds up a 228. See also, contrary interpretation, is that of Tipping v. Smith, Stra. Cro. Jac. 525.

1024. There it was held, that an award that all manner, of proceedings, if any, depending at law, should be no further prosecuted, was not good, because not final. This is a very short and imperfectly reported case, and it is against the general current of authorities I have alluded to. Considering, therefore, the benignity with which awards are of late expounded, and the sense and justice of the one construction, in preference to the other, I cannot permit it to have any influence upon the other decisions. The cases appear to me, therefore, to be in coincidence with the reason of the thing, and to require the interpretation I have given to the award; that, according to a common intent, the design and operation of it is a final cesser of the controversy subnitted. There is no ground for a distinction, that an award which shall say a suit shall be discontinued, or dismissed, or shall cease, is good, and an award which shall say a suit shall not be further prosecuted is not good. The force and effect of the expressions are the same. 18. Janu ar 2

But it was objected at the argument, that the award was not of the matter submitted. This, however, is a mistake. Both the bond and award state, that a suit had been instituted for burning the barn, and the bond states, that for putting an end to all questions and controversies concerning that charge, the submission was made. Putting an end finally to the suit concerning the barn, was putting an end to the controversy. The award was, therefore, as

I understand it, strictly concerning the premises. In one 3 Alod. 228. of the cases already referred to, the parties submitted all

controversies between them to arbitrators, and the award

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