and the contents thereof, and the damages the said Eben- ALBANY, August 1803. ezer had sustained, to the judgment and award of three arbitrators. These arbitrators in their award, after reciting the pendence 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. 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 motion for a new trial was founded. Purdy V. Delavan. 1 Salk. 74, 75. Ray. 961. 6 Mod. 33 ALBANY, August 1803. Purdy V. Delavan. Ba. 296. 8. 2. That the plaintiff has misconceived his action, and, perhaps, blended actions of different species. 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 declaration are wholly unconnected, each being considered 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. The only remaining questions are, whether the plaintiff has misconceived his action, or has blended distinct species of actions. On the argument, the counsel for the plaintiff were unwilling to say whether they considered their suit in trespass 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 di-" rect 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 consequential. There are also others (which will not, howev er, apply to all cases) as where it is accompanied with force, and where it is not; where it is done on the immediate 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 force. It was done on the possession of the plaintiff, and must have been accompanied with an unlawful entry. It was immediate; for whether done by the defendants, or by their procurement, they are equally principals, and the 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 countɛ 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. ALBANY, August 1805. Purdy V. Delavan. 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 opinion from his brethren, declared, that after verdict, 897. the court will not look with eagle-eyes, to spy out a variance. I am therefore of opinion, the plaintiff ought to have judgment according to his verdict. Robert Lyle against Isaac Clason, and Isaac Clason against Robert and John Lyle. 2 Black. Rep. If cross suits be THESE were cross suits, brought under the following referred to the circumstances: same referees, and they make up their report On the first of September, 1793, Robert Lyle engaged in cach, under the idea that one shall be a with Clason to go to Europe as his agent, and transact his business at a salary of £150 per annum, New-York set off to the other, the court ALBANY, August 1803. Lyle v. Clason, and currency, besides his expences. In consequence of this arrangement, Robert Lyle embarked on board a vessel of Clason's, called the Hare, destined to Hamburgh, with a cargo of sugar and coffee. In an account made out by Robert Lyle against Clason, he charges his salary for six both,if the suits months at £42 3 4, ending in March 1794. No evidence be for demands, appeared that Clason either then, or at any after time, dis Clason v. R. & will set aside which cannot legally be set, charged Lyle from his service; and in an account renoff. An agent's agreement to dered by him to Robert Lyle, he gives Lyle credit for one give part of the profits arising year's salary at the above rate. from merchan dize entrusted to sell underthe In March 1794, at which time John Lyle was employto him, in order ed in the Loan-Office of the United States, Robert was contract of a- in Paris, and while there, entered into a contract with the nother person, is obligatory on French government, ostensibly in his own name, but in his principal. fact, for the house, and through the influence of Delard, Swan & Co. of Paris, for the delivery of from ten to fifteen hundred tons of pot and pearl-ashes, in any port of France, at £53 sterling per ton, (payable as soon as delivered) two-fifths in bills on Hamburgh, and three-fifths in Louis d'ors, with a licence of exportation for the specie. On the nineteenth of the same month, Robert Lyle wrote to Clason an account of the contract, urging him to embark in it, and inclosing a more particular letter from Swan, offering Clason an interest in the contract, by the terms of which the profits were to be thus divided : one-third to Delard, Swan & Co. and two-thirds to Clason, giving to Lyle for the use of his name, a fifth of the whole; one-third of which, was to be paid by Delard, Swan & Co. the remaining two-thirds by Clason. Robert Lyle, in his letter, cautions Clason against being too explicit in what he may write, for fear of capture, and advises him to let the language he might use, accord with the appearance the business might be obliged to assume. In consequence of this letter, and without any other information of the contract, than what the letter of Robert Lyle contained, Clason, in July 1794, dispatched to France, under the command of one Gideon Gardner, a vessel named the Joseph, laden with pot and pearl-ashes, August 1803. giving to Gardner at the same time, the following letter of ALBANY, instructions: "Capt. Gideon Gardner, "Dear Sir, "New-York, 26th July, 1794. "You will please to take charge of the ship Joseph, "and proceed as fast as possible to France. I shall not "confine you to any one port, but by all means endeavor "to get into any port, the first that you can make, which, "if you are fortunate enough in arriving safe, you will "immediately apply to one of our American Consuls for "instructions, respecting the customs of the place, and "there make sale of your cargo to the best advantage for my account; perhaps you will be able to make a sale of "the whole to the Republic of France, at a good profit, by "taking part in brandy; which, if so, and the brandy "should appear to you of a good quality, and at such a "price as you might judge would answer to bring here, you will do it; if not, you will endeavour to sell for "cash, and if times should appear favorable in England, "you will remit the greater part of your avails to Messrs. "Bird, Savage & Bird, merchants in London; and if you "don't find freight from France, or any other article that "will answer, you may run to any port in England, and "either load there with salt, or get freight, whichsoever 'you may judge will be most to my interest. However, "it is impossible for me to give you any positive instruc"tions, from the precariousness of the times; much will depend on your good judgment on your arrival. I "think likely you may see or hear from Robert Lyle, if so, "he will give you very essential assistance in your negociating your business in that country. Gardner set sail with the Joseph, and, on the 4th September, 1794, arrived at Cherbourg. From thence, he addressed himself to Delard, Swan, and Co. and on the 9th of October, 1794, wrote 8 Lyle v. Clason Clason v. R. & |