Majority
p. 320*Munro against Alaire.
Headnote
1. If a submission be “ so that the award be made in writing, ready to ba delivered," it need not be stated m todidem verbis, if circumstances from whence it must necessarily be inferred that it was in writing, be averred Therefore, alleging it to have been in “form following,” when it .contains a reference to its date, and stating in an averment “after the date thereof" and a rejoinder specifying a fact “before the date of the award,” are sufficient circumstances to show the award was in writing, and the imperfection, if any, in stating the award, is cured by the rejoinder.2. An allegation that an award was made, necessarily implies it was ready to be delivered.
3. Though an award mention a thing by a different name than that by which it is described in the submission, it is not on that account an award on a matter out of the submission, if it appear, by the award, that it is the same thing mentioned in the submission, and, in such case, if the breach be assigned, on that very thing, by the name given to it in the award, it need not be averred that the thing mentioned in the award, and that described in the submission, are one and the same thing.
4. A submission may be of matters concerning the realty.
6. Divers other matters in a submission extend to real as well as personal concerns.
6. An award directing an exchange of lands is good.
Í. A submission of “ divers other matters ” is equivalent to a general submission of all questions and controversies between the parties, and, under it, general releases may be awarded.
8. If a special matter be submitted, and a general release awarded, it enures only to the matter submitted.
9. An award, to be iSmtual, need not be equal.-
10. It is no objection to an award ordering general releases that one party is directed to perform his part before the other releases, especially when the party, to whom the general release is ordered to be first given, is directe'd to do certain acts not dependent on the releases.
11. On a penal bond within the statute for the amendment of the law, the plaintiff must assign all the breaches he means to go for, the act being compulsory, and may assign them either in the declaration, or when he replies, and in assigning his several breaches he need not say “ and for farther breach according to the statute,” ut stmb.; but if necessary, advantage of the omission can be taken only on special ‘demurrer.
12. After a plea ofno award, a rejoinder confessing and avoiding the award is a departure.
13. A recital in a deed, anterior to a submission to arbitration, cannot be pleaded as an estoppel to a subsequent award.
14. On a venire twm, guam, the plaintiff has it in his election to assess con tingent damages on the trial in fact, before arguing the demurrer or argue the demurrer first and assess his damages afterwards.
ON demurrer.
The plaintiff declared in debt on a bond, the condition of which, as set out on the oyer, stated “ that sundry controversies subsisted between the plaintiff and the defendant, and Callicia Alaire, touching the division fences between their farms, at Mamaroneck, and sundry roads and paths claimed by each party, and divers other matters and that being desirous of terminating the said controversies equitably, they had submitted to the award of Jonathan Ward and Samuel Youngs, as arbitrators, touching the premises, so 'that it be made, in writing, ready to be delivered on or before the 15th day of October instant.”
To this the defendant pleaded, 1. Mm est factum; and, 2. Mil agard. On the first, issue was joined, and a venire facias tarn guam sued out, on which the jury found for the plaintiff on the first plea, and assessed contingent damages, to the amount of 600 dollars for the breaches subseqently mentioned. Upon which point a short case was annexed to the demurrer book.
To the second plea the plaintiff replied, setting forth an award directing, 1. All suits between the parties to cease, and be no further prosecuted, and that each should pay his own costs; 2. That the defendant and Callicia should, on or before the 1st'day of November then next, convey unto the plaintiff, in fee, a certain piece of salt meadow, in Mamaroneck, commonly called Peter Alaire’s road to his Salt Meadow, and deliver the deed, on or before the said 1st day of November; 3. That the plaintiff should, on or before that day, convey, in fee, to defendant and Callicia, a certain piece of salt meadow and upland, situate at. Mama-roneck, being two rods wide, (describing it by metes and bounds,) reserving to himself and his heirs, at all times, a right to pass and repass, across and upon, the salt meadow
and upland, and every part thereof, with borses, cattle, &c. and should deliver tbe deed for tbe same on or before tbe said first day of November, paying at tbe same time to them, or one of them, tbe sum of twenty dollars; 4. That tbe plaintiff should, on or before tbe 15th of April then next, erect, and for ever keep up, a sufficient fence, therein described; 5. That tbe defendant and Callicia should, on or before said 15th day of April, erect, and forever *keep up, a sufficient fence specified in tbe award, and that tbe parties should, within twenty-two days thereafter, mutually exchange, by deed, two pieces of ground, of one and two square rods, divided by tbe said fences, tbe said plaintiff reserving a right and privilege to pond and drown tbe sedges growing on part of tbe land so to be exchanged; 6. That tbe plaintiff was seized in fee of, and should bold, a certain road by, through, and upon tbe farm, formerly of tbe defendant, and now of tbe plaintiff, as therein described, for tbe exclusive benefit of tbe plaintiff and tbe defendant and Callicia, to be open at tbe end adjoining tbe turnpike; 7. That the plaintiff should have full right to repair tbe said road, and to keep it in repair in such manner as should be most expedient, and that the defendant should not interfere therein, and that all swing gates erected thereon should not swing into the road but into tbe lots; 8. That tbe water fence should be maintained by them jointly, and that tbe parties respectively should maintain certain division fences; 9. That the" defendant and Callicia should, on or before tbe 1st of November aforesaid, execute a general release of all demands, &c. to tbe date of tbe submission, and that, so soon as tbe defendant and Callicia bad complied with tbe award; tbe plaintiff should execute alike release. Tbe plaintiff then averred that, on bis part, all actions bad ceased, that be had offered to execute tbe deed, and pay the twenty dollars clirected', and to exchange, and was still réady so to do, &c. and after protesting that tbe defendant bad not, in any thing, kept the award, assigned as breaches tbe not
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granting the deed for the salt meadow, and the not executing the release of all demands. The defendant rejoined that the plaintiff ought not to be permitted to say that the defendant did not convey, &c. nor release, because, by a certain deed of the 16th May, 1801, reciting that each party was respectively seised of certain land therein mentioned, and was thereto appertaining, respecting which there were controversies, for putting an end to which the plaintiff granted to the defendant a certain way, and that the defendant was thereof seised in fee; and then averred that the piece of salt meadow, called Peter Alaire’s road to his Salt Meadow, and described in the breach first assigned, is one of 'the ways in the said deed, in which the plaintiff and defendant are therein alleged to be respectively seised.
General demurrer, inde, and joinder.
JEmott, in support of the demurrer.
The rejoinder is *clearly a departure. The questions, therefore, will be on the replication. It is necessary, therefore, to consider whether the award be void, and if not, whether the replication is good. It is immaterial to discuss the validity of the award in all its provisions; if it be so in some it is sufficient, provided we can show certainty and mutuality, though it may be bad in others. Foxy. Smith, 2 Wils. 267; Addison v. Qray, ibid. 298. Peleases and conveyances were ordered in these cases, and no objection taken. The award, then, is good in those parts, and as it is on them that we have assigned the breaches, we are enr titled to judgment, though the arbitrators may have gone beyond their authority in ordering the road. If the breaches be well laid, still it may be made a question whether double breaches can be well assigned. This will turn upon whether arbitration bonds are within the statute. Whatever may have been the ancient determination on this point, modern decisions allow of double assignments. Fox v. Smith, 2 Wils. 267. If this be allowable in Westminster-Hall, it is certainly so here. The English statute is, (8 &
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9 "W. III. c. 11,) “ that in all actions, upon any bond, or on any penal sum, for non-performance of any covenants or agreements, in any indenture, &c. tbe plaintiff may assign as many breaches as be shall think fit.” Our law is greatly broader. It says (1 Eev. Laws, 349,) that “ in all actions, upon any bond, other than for the payment of money, the plaintiff may do the same.” It gives the right wherever the bond is not for the payment of money alone. But if this be not so, and the replication be faulty on that account, the defendant ought to have shown it as a cause of special demurrer. The awarding of general releases may be relied on as proving that the arbitrators exceeded their authority. The submission is not only with respect to the road and fences, but of “ divers other matters.” Allowing, however, that it is so, the other side ought to have made it appear. The award is “ of and upon the premises,” and in such cases it is laid down to be a staled rule, that if the words used in them be, in their nature, more comprehensive than the submission, yet it shall be intended that there was no other matter between the parties to lay hold on than that which was submitted, if the contrary be not shown. Kviqhi v. Burton, 6 Mod. 232 ; Arnote v. Bream, ibid. 244; Belly. Oipps, 2 Ld. Baym, 1141; Hooper v. Pierce, 12 Mod. 116; Lee v. JElkins, ibid. 585; Banfill v. Lee & Jeffray, 8 D. & E. 571. The doctrine *is fully stated in Hill v. Thorn, 2 Mod. 309. "If there be a submission of a particular difference, and there are other things in controversy, if in such a ease a general release is awarded, it is ill, and it must be shown on the other side, to avoid the award for that cause.” It may be argued against us that the award does not appear to have been in writing. But wherever circumstances are so set out as to show a particu lar fact must have necessarily taken place, it is not necessary to state that fact in express terms. Therefore, if an award be made, the plaintiff need not state it was ready to be delivered. Beusby v. Manning, Carth. 159. Here the award is said to have been “ in manner and form following,”
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and tbe plaintiff alleges that be did, “ after tbe date of the award, and before tbe time limited therein,” &c. If it bad a date, and contained a limited time, it must have been in writing, and being but matter of circumstance, is cured by tbe defendant’s confessing and avoiding tbe award in bis rejoinder. Aylet v. Williams, 3 Lev. 193 ; Mallet v. Mallet, Cro. Eliz. 708 ; Com. Dig. tit. Pleader, C. 85, E. 37. Tbe defendant “says” on or before tbe first “day of November, ensuing tbe date of tbe said award, ” and goes on to set forth what be relies on as an estoppel. From tbe case accompanying tbe demurrer book, it appears that tbe defendant denies our right to sue out tbe venire tarn quam, and insists we should first have argued the demurrer. But whenever the plaintiff is placed, by tbe defendant, in such a situation as to have an issue in law, and an issue in fact, depending at one and tbe same time, be may at bis election try either tbe one or the other first. Codice v. &'ayer, 2 Burr. 753; Dubberly v. Page, 2 D. & E. 394. It may perhaps be more advisable to argue tbe demurrer first, but on that tbe plaintiff has a right to determine. In 5 "VYentw. PI. 17, 36, there is a precedent fully in point.
Woods and Benson, contra.
Though tbe objection as to the award not being stated to be in writing, may be more a formal than a substantial objection, still it is a good one. JenMnsonv. Allenson, 3 Keb. 556; Hendersons. Williamson, 1 Stra. 116; Sallows v. Girling, Cro. Jac. 277. Com. Dig. tit. Arbitrament. Tbe mere reading of tbe submission shows that tbe arbitrators have exceeded their authority. Controversies respecting roads and fences were tbe only matters submitted. They, however, proceed to award general releases. It is attempted to justify this by the words “ divers other matters;” but tbe generality of these terms must be restrained to tbe things specified in tbe submission. They refer to tbe ^matters in dispute, and are thus expounded in all other cases, upon principles of legal construction. 2 Bol. Abr. 409,
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pi. 3. Diggers case, 1 And. 64. Cole v. Knight, 3 Mod. 277. So, general releases, on a special submission, are construed to relate only to tbe matter in arbitration. Pickering v. Watson, 2 Black. Bep. 1117. There was no right to determine anything respecting the meadow, and it is not averred that the meadow was a road. Wherever an award varies from the submission, in describing the subject of the arbitration, it is bad, unless it be described by two names, and then it must aver they are one and the same. Withers v. Drew, Cro. Eliz. 676, the submission was about an enclosure between Barton Down and North Down, the arbitrament was of an enclosure betwixt the defendant’s down and the down of J. S. and there was no averment that they were all one. In consequence of which, as the breach was alleged in that point, it was held the plaintiff could not have judgment. The assignment, therefore, of the plaintiff, is on a vitious part of the award, and not to be supported on his own doctrine. Fox v. Smith, 2 Wils. 267; System of Pleading, 105. It may be questioned how far even an averment would have cured the fault. Where an award is on the face of it beyond the submission, an averment will not help. Bacon v. Dúbarry, 1 Ld. Eaym. 246. It is impossible the salt meadow could have been in dispute. The rejoinder shows it was before settled, and the demurrer admits it. There is also a want of mutuality. The releases of the meadows are ordered, on the one side with a reservation of a right of way, and on the other to be made absolutely. If the award should be good, still the assignments are bad. After one breach set forth, the record should have stated “ and for further breach according to the statute,” &e. Hardy v. Bern, cited in Boles v, Bosewell, 5 D. & E. 541. This is necessary, because the statute (1 Bev. Laws, 349) is compulsory, and the plaintiff cannot elect to proceed at common law. The indenture in the rejoinder is well pleaded, and the recital alone an es-toppel. Shelly v. Wright, Willes, 13. The action ought to have been covenant, if damages for the breaches were to •have been recovered. The declaration is in debt on the bond, and ought to have been for the penalty. The assignment of breaches in the replication is incongruous to the nature of the suit brought. It is clear the trial for the assessment of damages ought not to take place till after judgment on the demurrer, because, if it be determined that the award is bad, no damages can have accrued.
*Harison, in reply.
This mode of declaring on the bond, and assigning breaches in the replication has been uniformly pursued. Goodwin v. Crowle, Cowp. 857 ; Boles v. Bosewell, 5 D. & E. 588 ; Drage v. Brand, 2 Wils. 377. It is not necessary to the mutuality of an award that it should be equivalent in value. Justice may require that one party should receive more than the other. Independent of the authorities cited in support of the present form of action and replication, the spirit of the act, (1 Eev. Laws, 346,) “ for the amendment of the law, and the better advancement of justice,” require that such should be the mode of proceeding. The statute was framed to prevent the necessity of driving a defendant into equity, where judgment had passed against him for a penalty of a bond, when only a trifling damage had been sustained by the breach of it. It may, perhaps, therefore, be said, the statute is compulsory, and this the only legal method that could have been adopted. If so, the trying the issue before arguing the demurrer, was a matter of election in the plaintiff. Should the cause go against him he pays costs. If otherwise, he gains time, by having the assessment ready made, in case the determination of the court should be in his favor.
delivered the opinion of the court. Upon the record now before the court, the material questions that are raised respect the replication. The counsel for the defendant contend it is bad; 1. Because there was no averment that the award was in writing, or ready to be deliv
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ered; 2. Because tbe award set forth orders matters to be done that were not in tbe submission; 3. Because tbe award is not mutual, as tbe plaintiff’s deed was to contain a reservation, and as bis general release was not to be made till tbe defendant bad performed tbe award on bis part; 4. Because tbe assignment of breaches was void, inasmuch as part of tbe matter assigned was void ; and that only one breach ought to have been assigned, and that should have been in tbe declaration. Tbe first objection is without foundation. Tbe award is stated to be “ in tbe form following,” and in tbe body of it, as set forth, there is a reference to tbe date of it. It must, therefore, be intended to be in writing, as tbe circumstances which are averred necessarily imply it; and it appears from tbe case of Reusby v. Manning, Carth. 159, 3 Mod. 333, that an award may be so intended, although the fact be not specially stated. It may further be added, that the replication is, in this respect, agreeable to an approved precedent in 3 Ld. Baym. 106. But if '"this omission was to be deemed an imperfection in pleading, it would be cured by the defendant’s rejoining over, and thereby admitting an award in form. Com. Dig. tit. Pleader, C. 85. Nor was it requisite to aver that the award was ready to be delivered. This is also intended, and is implied in the allegation that it is made. If the fact were otherwise, it would be incumbent on the defendant to show specially that the award was not ready.[4] Bradsey v. Clyston, Cro. Car. 541; Carth. ubi sup. Marks v. Marriot, 1 Ld. Baym. 114.
The next question is of more importance, and relates to the merits of the defence. The submission was of sundry controversies, touching the division fences between the
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farms of tbe parties, and touching sundry roads and paths, claimed by each, and touching sundry other matters. The award, among other things, orders the defendant to convey to the plaintiff a certain piece of salt meadow; but it is described as known by the name of Peter Alaire’s road, and that it runs through the land and meadow of the plaintiff, and contains sixty-six square rods. It is apparent, then, that the meadow here mentioned must be one of the roads, or paths, referred to in the bonds of submission, as it has the name and quality of a road or path ; and although the release of it concerns the realty, and transfer land, yet that was the very matter submitted. A controversy concerning a road or path, may perhaps, in strict technical language, relate only to an incorporeal hereditament, or right of way, but in common parlance it will equally refer to a claim to the soil. In arbitration bonds, which are to be liberally expounded, and, as in the present case, refer to divers other matters not named, it would be considering the words too curiously to confine them to the first construction. The parties were also, by the award, to exchange with each other, small strips of land of one and two rods square. These strips must be viewed as connected with the subject of the division fences, and to have been part of that controversy, as the award states that they arose on the settlement of the division fence. We do not perceive anything in the award that may not be included, even in the subject matters of the controversy specially submitted, except it be that part of the award which directs general releases. But the submission is “ touching divers other matters," as well as those particularly mentioned. The word's used are operative and equivalent to a general submission of all questions and controversies between the parties. They are used as forming an independent *part of the submission, and it is impossible not to perceive that the parties intended b.y them, to embrace different and more general matter than that which had already been specified. Questions concerning real
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property may be submitted without being specifically named. A submission of all demands includes questions concerning real as well as personal property. Marks v. Harriot, 1 Ld. Raym. 114. The law does not now require a a specific submission as to one kind of property more than as to the other. The r.ule, in an analogous case, in the construction of deeds, is, that if a general clause be followed by special words which accord with the general clause, the deed shall be construed according to the special matter; but that if a deed contain special words, and conclude with general words, the general as well as the special words shall stand, for generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa. Edward Altham's Case, 8 Rep. 154, b. But if the submission was not to be construed beyond the special matter, yet the release, though general in terms, would be held to enure only to the matter submitted, and as no other differences between the par ties have been shown, no other are to be intended. Simon v. Gavil, 1 Salk. 74. Sill v. Thorn, 2 Mod. 309. Pickering v. Watson, 2 Bl. Rep. 1117. Keen v. Goodwin, Bunb. 250. Stephens v. Mathews, cited Ld. Raym. 116. So that even, in this view of the question, the award is good.[4]
Another objection to the award is, that it wants mutuality. It is not requisite that the same acts, in the same unqualified manner, should be awarded on each side to render the award mutual.[3] The reservation, in the plaintiff’s deed to the defendant, might have been the ground of one of the questions, controverted, and it may have been proved to the satisfaction of the arbitrators, (and so we are to intend,) that the plaintiff had a valid claim to the right of way so reserved. If an award puts a final end to the controversy, and awards mutual releases, there is no ground for the objection that it is not mutual. Bacon v. Dubarry, 1 Ld. Raym. 246, the second point. Kyd on Awards, 148, 149, The objection that the defendant is first to perform and execute on his part, before the plaintiff is to execute the general release, was also raised in the case of Maries v. Marriot, and there overruled because the defendant’s release would not be construed to deprive him of his remedy on the bond, if the plaintiff should refuse to perform on his part, and because other matter, as is the case here, was awarded to be done by the plaintiff, without being dependent on the *releases. None of the objections to the award appear, therefore, to be valid.
The last point made by the defendant is on the assignment of the breaches. It was urged that the plaintiff could not regularly assign breaches in the replication when the declaration was in debt for the penalty, and that if the plaintiff intended to go for damages, he ought to have brought his suit in covenant. We apprehend, however, that the practice is too well settled to be now shaken by this objection. The plaintiff may, perhaps, pursue either mode at his election. He may declare in debt for the penalty, and assign breaches at the same time in his declaration, as was done in the cases of Goodwin v. Crowle, Cowp 357. Drage v. Brand, 2 Wils. 378, and Roles v. Rosewell, 5 D. & E. 538, or he may declare simply in debt for the penalty, and leave the assignment of the breaches till the replication, where he must assign them, if the nature of the plea demand it. This course was pursued in the cases of The African Company v. Mason, 10 Mod. 227. Cornwallis v. Savery, 2 Burr. 772. Cooke v. Colcraft, 3 Wils. 380. Shum and others v. Farrington, 1 Bos. & Pull. 640, and Strange and others v. Lee, 3 East, 484. It is to be observed that all these last cases are upon bonds with conditions for the performance of covenants, and the former cases arise upon articles of agreement with a penalty. In the case of bonds
(b) (b) An award that the one party shall pay a certain sum to the other, Is mutual and final, without mentioning a release. M'Kinstry v. Solomons, 2 Johns Rep. 51 .
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therefore, it seems to be the uniform course to declare simply for the penalty, taking no notice of the condition, and to leave the assignment of breaches to arise afterwards, in consequence of the plea. Lord Coke, (10 Rep. 94, a.) cites an instance as early as Ed. IV. of this mode of declaring, and assigning a breach on an obligation with a condition. But it is further objected, that the plaintiff, as he declared in debt for the. penalty, ought to have, assigned only a single breach. This was the common law rule, because a single breach worked a forfeiture of the penalty, and the assigning of two breaches was considered as rendering the plea double. Cro. Car. 176; 1 Roll. Rep. 112, and the cases of The African Company v. Mason, 10 Mod. 227, and Cornwallis v. Savery, 2 Bur. 772 , since the act of W. III. seem to have admitted the same rule. But subsequent cases have adopted a different practice under the act of W. III. and allow of the assignment of double breaches, even in cases where the plaintiff declares in debt for the penalty. This was done in Goodwin v. Crowle, and Drags v. Brand, and also in Hardy v. Bern, cited in 5 D & E. 540, (which were suits for the penaltjq in articles of agreement,) and also in the case of Strange and others v. Lee, which was upón a bond for the performance of covenants. The assignment of double breaches was held, in these cases, to be an election of the plaintiff to proceed under the statute, although he had not named the statute in express words, and which omission is, at any rate, but mere form, and bad only on special demurrer, though we incline to think it altogether unnecessary to have any express reference to the act. It was also held to be compulsory on the plaintiff to proceed under the statute in cases within the provisions of it, and that he must assign the breach of such covenants as he proceeds to receive satisfaction for. Our act is more comprehensive than the English. It reaches to every case of bonds, with any condition other than for the payment of money, and it is in every such case compulsory on the plaintiff to assign
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breaches, and to have bis damages assessed. Any other construction would defeat, in a degree, the equitable provisions of the statute, and force the defendant into equity for relief.
The rejoinder is manifestly bad. It is no answer at all to one of the breaches assigned, viz. the non-execution of the general release, and as to the other matter set forth, it is a departure from the plea.[4] The estoppel which is relied on, as arising from the recital in a deed executed by the plaintiff, long anterior to the bond of submission, cannot apply. The submission to arbitration, and the award, have put an end to questions and pretensions which before existed, relative to the matters submitted, and the rights of the parties must now be ascertained by the award itself. We are of opinion, therefore, that upon the demurrer in this cause the plaintiff is entitled to judgment.
As to trying the issue in fact, and assessing contingent damages before arguing the demurrer, the practice is settled that the plaintiff has a right to elect to carry the cause down to trial, either before or after the demurrer is determined.
Judgment for the plaintiff.
(a) (a) So to a plea setting forth an award, a rejoinder that the award was not final. Barlow v. Todd, 3 Johns. Rep. 367 .
Footnotes
- (a) (a) Or it appear by the replication to the plea of mil agwd. As where the plaintiff in his reply stated that the award was ready to be delivered to him. Pratt v. Hackett, 6 Johns. Rep. 14 . To constitute it an award, it must he signed by all the arbitrators, though they act under a parol submission. Green v. Miller, ib. 39.
- (a) (a) An award by an umpire, stating that he took upon himself the burden of the umpirage, implies that he awarded on the matters submitted. M'Kinstry v. Solomons, 2 Johns. Rep. 57 .
- [1] [1] What shall be deemed a good submission and award, considered in Hays v Hays, 23 Wend. 363 . See cases relating to awards in, 22 Wend. 125 .