August 1803. Purdy V. Delavan. “be no further prosecuted." It was as if they had said, ALBANY, the defendant shall be no further prosecuted upon the 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. Kyd 140, 1. It has indeed been held, that an award, declaring that a party should be nonsuited in an action he had brought 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, Kyd141, 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; ton, 6 Mod. that is a substantial dismission and cesser, and not the Salk. 75.S. C. shadow of one. 232. ALBANY, Purdy V. Delavan. So, an award that all suits between the parties shall cease is good; for the meaning is not that the party should give over and begin again, but that the suit should cease absolutely forever, so that the right itself is gone with the remedy. The same construction was given to these words vell, 6 Mod. 34, in an award, that all suits which are prosecuted by the 1. Ray. 691. plaintiff against the defendant, shall cease. Squire v. Gre 1 Salk. 74, 2 Green, 2 Mod. Cro. Jac. 525. Stangford, v. The only authority I have met with, which holds up a 228. See also, contrary interpretation, is that of Tipping v. Smith, Stra. 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 submitted. 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. 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 of the cases already referred to, the parties submitted all controversies between them to arbitrators, and the award ALBANY, was, that all suite which were prosecuted by the one party August 1803against the other, should cease, and it was held good. Purdy V. Delavan. It may not be unnecessary to notice another rule applicable to awards, which is, that they must be mutual, or not give an advantage to one party, without an equivalent to the other. But this mutuality is nothing more, than that the thing awarded to be done, should be a final dis- Kyd, 148. charge of all future claim by the party in whose favor the award is made, against the other, for the causes submitted, or in other words, that it shall be final. Thus in Baspole's & Co. 97. b. case the submission was general, of all matters and demands; and the award was, that one party should pay to the other a certain sum in consideration of a debt long due, and for his costs, and said no more. The award was held good; for the one party received the money, and the other was discharged from the debt, which was a sufficient reciprocity. So where a certain alledged trespass was submitted Com. Rep. 328. to arbitrators, to arbitrate concerning the said trespass, and divers suits concerning the same, pending between the parties, and the award was, that the defendants should pay a certain suna and certain costs in and about the suit arising; it was objected, that the award was on one side only, for it directed nothing as to the other party, there being no releases awarded, nor words of satisfaction used: but the award was, upon demurrer, held good, and therefore it may now be safely laid down in the words of Mr. Kyd, that an award need not contain any equivalent terms; for a discharge to the other party must necessarily be presumed from the payment of the sum, or the performance of the act. As I hold the award to be good, it goes to the determination of this cause, and it will be unnecessary for me to consider the other point that was raised at the argument. I accordingly conclude, that the evidence offered ought to have been received, and considered as a full and effectual bar to the present suit, and that the verdict ought to be set aside for misdirection, and a new trial awarded, with costs to abide the event. 3 Lewis, C. J. This is, substantially, an action by the plaintiff against the defendants for consuming by fire, his Page 153. Purdy v. ALBANY, barn, together with its contents. The declaration contains August 1803. seven counts. The first, charging that the plaintiff being seized and possessed of a certain close and barn, containing Delavan. certain quantities of hay, grain, &c. the defendants, by conspiring, did cause and procure the said barn, &c. to be set on fire, consumed, and destroyed. The second variant from the first, in charging, that the defendants did con spire and agree to set fire to, and did cause and procure, &c. and that the said barn, with its contents, was set on fire and consumed in consequence thereof. The 3d, 4th, 5th, and 6th counts do not vary essentially from the first and second. The seventh and last count, charges the defend ants with a conspiracy and agreement to set on fire, &c. and an actual burning and destroying by them, in consequence thereof. To this declaration, the defendants pleaded the general issue, and gave notice, that on the trial, they would give in evidence, in their discharge, a certain arbitrement, and award between them and the plaintiff, on the subject matter of the present suit, and a performance on the part of the plaintiff. On the trial, at nisi prius, the submission and award were read in evidence, but the judge, not supposing it sufficient to bar the plaintiff's action, so directed the jury, and they found a verdict for him, To avoid the effect of this verdict, two motions are now before the court. The one for a new trial, the other in arrest of judgment. In support of the first, it is contended, that the award was conclusive between the parties, and that the jury ought to have been so instructed. The bond of submission states, that the plaintiffs had commenced a suit in trespass against the said Mathew Delavan, Samuel, his son (who appears to be an infant) and Hannah, the wife of the said Mathew, for breaking and entering his close, burning his barn, &c. that the parties, viz. the plaintiff and Mathew, had mutually agreed to discontinue the said suit, and to submit all questions, disputes and controversies, touching the destruction of the said barn, August 1803. and the contents thereof, and the damages the said Eben- ALBANY, ezer had sustained, to the judgment and award of three arbitrators.' pen These arbitrators in their award, after reciting the dence of the said suit, and the submission of the parties for putting an end thereto, award that "the said suit shall "be no further prosecuted, and that the plaintiff shall pay "the defendant Mathew, $14, 68 cents in full for costs and expences." Awards are, at the present day, construed with much greater liberality than formerly; and from a current of authorities, it appears to be now held that an award that a 'suit shall cease, or be no further prosecuted, not only arrests such suit, but also takes away the right of action on which such suit was founded. But though this be the effect, it is necessary that such award have the essentials to a good one. It must, in some cases, be mutual, in every case certain, and final between the parties. It must be also on the matter submitted. The award before us, appears to me to want many of these essentials. It is one in which mutuality is essential, and hath not been regarded. It is not final, nor on the matter submitted. Nothing is awarded to be performed on the part of Mathew Delavan.. Not even to give a receipt in full on payment of the $14, 68 cents. Nor are his hands, nor those of his son, tied 'up from bringing a suit; or suits against Purdy for any injury sustained, by the charge made against them, or for the suit brought against them beyond costs and actual expences. The then pending suit was no part of the submission. It is expressly stated in the bond, that that was, by previous agreement between the parties, to be discontinued." I therefore think, the direction to the jury was right, and that the motion for a new trial must be denied. Li In support of the motion in arrest of judgment, two positions are advanced. 1. That the finding of the jury is repugnant and contradictory. This was also made a ground on which the mo. tion for a new trial was founded. Purdy V. Delavan. Salk. 74, 75. Ray. 961. |