Purdy V. Delavan. ALBANY, low 70, a similar declaration is to be found; an action for August 1803. a conspiracy in the nature of case, ought to be without vi et armis. Herne 71. 28. 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 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, porter have not and as it is now after verdict, against the peace must be led him to any precedent rejected as surplussage, and then the declaration is plainwhich willwarly case. The contradiction in the verdict can be sup rant this position. 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. es of the re 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; 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 burn. ing, 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 Purdy found against Mr. Colden's positions. The case stated ALBANY, August 1803. 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. 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 clearly within the submission. These duties might be performed either in terms, by awarding 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 if they are certain, according to a common intent, and v. Delavan. August 1803. Purdy V. Delavan. ALBANY, consistent with fair presumption. It is matter of surprise, that courts should ever have disturbed awards, when from the whole of them it was fairly to be collected, that the 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 submitted, 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, and may possibly come before us again, I am ready to say that if a new trial had not been granted, I should not have been for arresting the judgment. Trespass, in my opinion, is the proper remedy for a direct and immediate injury of this kind, and the present resembles that species of action more than any other. It is true, it is somewhat out of the common form, and that some expressions are found in it not appertaining to actions of trespass, and which give it the appearance of an action for a conspiracy. But after verdict, I should reject these expressions as surplussage, rather than cause judgment to be arrested. ALBANY, August 1803. Purdy V. Delavan. Kent, J. I coincide in the opinion given, but shall state my reasons a little more at large. The defendants' motion is for a new trial, and in this application is united a motion in arrest of judgment. I shall consider only the first, and in this the great question is, whether the award ought to have been received in evidence, as a bar to the present suit. If the award in question be good and valid, Kyd on Ain pursuance of the submission, it may undoubtedly be wards, 242. given, or pleaded in evidence; as this suit is for the same matter, which was the subject of the submission. Awards are to be liberally construed, because they are, Burr. 277. made by judges of the parties' own choosing. But they 2 Wils. 268 must have two properties. They must be certain, and final. This certainty, however, is judged of only according to a common intent; consistent with fair and probable presumption. In the present case, the bonds of submission recited, that the plaintiff's barn had been burnt, and that he had instituted a suit against the defendants, and the wife of one of them, for burning the same, which charge they had denied; that the parties had agreed to discontinue the suit, and submit all questions and controversies touching the destruction of the barn, and the damages, &c. to arbitrators. The awards stated, that a certain suit had been commenced, as aforesaid, for burning the barn, and that, for putting an end to the suit, the parties had, by their bonds as aforesaid, submitted to the award and final determination of the arbitrators. That the arbirators, taking upon themselves the burthen of the sub Τι August 1803. Purdy ALBANY, 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 dollars 68 cents, for his costs and expences in defending the suit, and attending the arbitration. Delavan, 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. ly 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 in tent 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 had de 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 fur nished the arbitrators, with a full discussion and knowledge 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 |