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was, that alt suits which were prosecuted by the one party ALBANY,
? August 1803. against the other, should cease, and it was held good. ; Saar
It may not be unnecessary to notice another rule appli- Purdy cable to awards, which is, that they must be mutual, or Delavan. not give an advantage to one party, without an equivalent to the other. But this mutuality is nothing nore, 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 8 Co. 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 sufhcient reciprocity: So where a certain alledged trespass was submitted Com. Rep. 222. 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 sun 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 paynient of the sum, or the performance of the act. As I hold the award to be good, it goes to the deterniination 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
299701 Torati o ba no the event. mo na adi aula 110
Lewis, C.J. This is, substantially, an action by the plaintiff against the defendants for consuming by fire, his?
ALBANY, barn, together with its contents. The declaration contains August 1803.
seven counts. The first, charging that the plaintiff being Purdy
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 rariant from the first, in charging, that the defendants did conspire 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 defendants with a conspiracy and agreenient to set ou fire, &c. and an actual burning and destroying by them, in consequence thereof.
To this declaration, the defendatts 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 perforniance 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 subniission states, that the plaintiffs had commenced a suit in trespass against the said Mathew De lavan, 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,
and the contents thereof, and the damages the said Eben. ALBANY,
August 1803 ezer had sustained, to the judgment and award of three arbitrators:" .... .. .
Purdy These arbitrators in their award, after reciting the pen- Delavan. dence of the said 'suit, and the submission of the parties for putting arrend 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 fornierly; and from a current of au- 1 Salk. 74, 75. thorities, it appears to be now held that an award that a 5 a suit shall cease, or be no further prosecuted, not only arTests 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 és= sentials. It is one in which niutuality is essential, and hath hot 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. ''In support of the motion in arrest of judgment, two po. sitions 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.
ALBANY: 2. That the plaintiff has misconceived his action, and,
If all the counts in a declaration, are to be considered as constituent parts of one cause of action, there would be some foundation for the first position ; though, even in that case, I should doubt its vitiating the verdict. For the meaning of the jury is, that the defendants did cause the barn to be burnt by conspiracy, but did not do it with their own hands; and it is not to be expected of them, that they shall be acquainted with principles or maxims of law. But a conclusive answer is, that the counts of a de
claration are wholly unconnected, each being considered Ba. 296. & as a distinct declaration, and if a jury give a verdict on a
single count, where there are several, without noticing the others, it will be good, provided they find all that is in issue on that count.
Do The only remaining questions are, whether the plaintiff has misconceived his action, or has blended distinct species of actions. Thi s to be
On the argument, the counsel for the plaintiff were un willing to say whether they considered their suit in tres. pass or in case. The last count is in trespass beyond doubt; and I think there is not much doubt that the other six are equally so, and that the conspiracy is mere matter of inducement, or perhaps surplussage. They have two of the characteristics of trespass. The charges are direct without recital, and the injury complained of is stated with a contra pacem. It only remains then, to enquire whether this action will lie, or whether case is the appropriate remedy. Where the action is founded on tort, the boundary between case and trespass is faintly delineated, and not easily discerned. The most marked distinction is, where the injury is immediate, and where it is conse quential. There are also others (which will not, howev
er, apply to all cases) as where it is accompanied with at force, and where it is not; where it is done on the imme
diate possesion of the plaintiff, and where done elsewhere, though it damage such possession. In the case before us, the injury, if any, was accompanied with forced
cond murat It was done on the possession of the plaintiff, and musta
August 1803 nave been accompanied with an unlawful entry. It was
Purdy immediate ; for whether done by the defendants, or by their procurement, they are equally principals, and the De maxim of qui facit per alium, facit per se, will apply to them. Nor will it, in my opinion, vary the case, though the conspiracy, and not the burning, should be considered the git of the action. For, in that case, the burning must be considered as introduced under a per quod, which, the form of each of the six counts will warrant.
I have not been able to meet with any authority which determines, that trespass will not lie for a conspiracy to commit a trespass, where an actual trespass is the consequence. It differs materially from the case of a conspiracy to cause a person to be indicted or arrested ; for there the intervention of an intermediate agent, who cannot be implicated in the guilt, is essential to the injury. Here the intermediate agent, if any is resorted to, is the mere instrument in the hand of the principal, and the injury is emphatically his own.
But what puts this question at rest, in my opinion, is, that after verdict, the court never will, in a case where the line is so nicely drawn, enquire whether the facts will warrant trespass or case. Such was the decision in Sla- 2 Wils. 359. ter v. Baker and Stapleton, recognized in Scott v. Shepherd, by Justice Blackstone, who, while he differed in
- Dlack. Rep. opinion from his brethren, declared, that after verdict, 897. the court will not look with eagle-eyes, to spy out a va. riance. Di sin i 20 de
I-am therefore of opinion, the plaintiff ought to have judgment according to his verdict.
Robert Lyle against Isaac Clason, and Isaac son against Robert and John Lyle.
If cross suits be
referred to the THESE were cross suits, brought under the following cam circumstances : : : :
and they make
up their report On the first of September, 1793, Robert Lyle engaged in each, under
the idea that with Clason to go to Europe as his agent, and transact one shall be a his business at à salary of £150 per annum, New-York Scher, the con