author: Radcliff, J.

text:
    Abbott against Broome, President of the New York Insurance Company.
    If a vessel be rendered, by the perils insured against, unable to proceed with her original cargo, it is a loss of the voyage, though she may be equal to perform it with another more buoyant. When a vessel cannot be repaired for half her value, she may be abandoned. If a vessel be duly abandoned, and the abandonment refused, and' at a sale for the benefit of all concerned, under an order of a court of admiralty, pronouncing her not worth repairing, she be bought in by a part owner supercargo, it is no waiver of the abandonment, though on her arrival at her home port, she be sold at auction, by the assured, for more than she cask and he at the time of action brought, have the proceeds in his hands, nor need he make a tender of her . to the underwriter when she arrives, nor of her proceeds after her sale.
    This was an action on a policy of insurance upon one eighth of-the ship Mary, valued at 2,875 dollars, on a voyage from Batavia to New York, tried before Lewis, Ch. J. at the circuit held in New York, in November, 1800.
    On the trial it was proved that the vessel, in the prosecution of the voyage insured, encountered heavy and adverse gales of wind, in consequence of which, and upon a general consultation of officers and crew, it was determined to bear away for the West Indies. That the ship, in the beginning of the month of January, 1799, arrived at the island of St. Christophers, in a very disabled state, and was there, on the application of the master, in co-operation with the supercargo, who was also a part owner of the ship, surveyed under an order of the court of admiralty, and afterwards unloaded for the purpose of a second survey.
    Upon the second survey a report was made, that the ship could not be repaired for the full value of her when repaired ; and was in such a state and condition, without particularizing the several damages she received in her hull as well as rigging, that it would be dangerous and unsafe to reload her cargo, and proceed with her on her voyage; that to repair her would be highly detrimental to the interes* of the owners, or the underwriters of the said ship and cargo".
    On this, the court, upon the like application, ordered a sale of the vessel for the benefit of the concerned. The sale took place, and at it the supercargo became the purchaser on account of the assured, for the f'sum [*293] 4,700 dollars. Upon advice of her situation, the plaintiff abandoned to the underwriters, who refused to accept th abandonment.
    It was admitted that the vessel, in consequence of the disasters experienced on the voyage, was so much injured as to render it impossible, from the high price of materials and wages, to repair her at St. Christophers (so as to bring on her whole cargo) for half her value.
    It was admitted that in the spring following she came to New York, with a light cargo of rum and molassesj being about sufficient for a set of ballast, and that she might have brought a full cargo of rum, which was proved to be a very light and buoyant cargo. That the interest of all the owners in the vessel was not insured. That on her arrival at New York, she was not offered by the plaintiff to the defendant, but was sold at publie auction, without his consent or approbation, for the sum of 10,100 dollars, and was after-wards repaired by the purchaser at a Considerable expense.
    On this evidence, a verdict was rendered for the plaintiff as for a total loss, subject to be diminished according to such principles as the court should direct.
    Hamilton, for the plaintiff.
    On the facts stated in tne case, the application of the general and established principles of the law of abandonment is so clear and plain, that surely no objections can be raised on that point. The right cannot but be acknowledged, and, therefore, to anticipate anything which may be urged against it, will not be attempted. The question on which we apprehend the defendant will most rely, and which, it must be confessed, is of sufficient importance, is whether the repurchase of the vessel by the supercargo, did not turn this technical total, into merejy an average loss according to the decision of Saidler and Craig v. Church. So far from disputing the law of that decision, it is fully admitted; but the circumstances of that case, as well as those in the one in Term Rep. on the authority of which it was in a great measure determined, essentially vary from the present. In Saddler and Craig v. [*294] Church, and in the case *in Term Eep. there was no abandonment before the re-purchase. In this the reverse is the fact. By re-purchase the court will please to understand notice of re-purchase; for the mere fact, it is conceived, can by no means influence the question. If at any period, the right to abandon from what was known, perfectly and fully attached, if the event then disclosed warranted an abandonment, the right, as it thus stood, cannot be impaired by any actually existing fact which would, if known, have taken it away. In the decision to which allusion has been made, Lord Kenyon observed, there had been no abandonment before notice. It is true, in Saidler and Craig v. Church, the re-purchase was not known till after the abandonment: but this was followed by a subsequent proceeding of a very impressive nature. On the arrival of the vessel here, she was taken by the assured, repaired, fitted out, and sent on another voyage. What, did this amount to ? What could it amount to but a complete adoption by the assured of the act of their agent, as done on their account ? The consequence is obvious; it turned into a partial, the claim that had been made for a, total loss. This, therefore, constitutes a material difference between the two cases. But there is another circumstance equally important. In the present instance, when the offer to abandon was made, the assurer absolutely refused to accept it. In Saidler and Craig v. Church, they were merely passive, and made no reply. When the Mary came here she was not employed and fitted out again, but as she was refused, she was sold at auction for the benefit of whom it might concern. Of what was done in the former case, there can be but one possible interpretation; that the assured took her back, and waived their abandonment. In this no such thing can be inferred. Every act is consistent with the claim now made. There had been a clear right to abandon, and the abandonment had been refused. To sell the ship was a duty of the assured, and only to prevent to the assurer a total loss, which otherwise must ultimately have resulted. The proceeds are doubtless to be accounted for; but they do not weaken the present claim. The vessel, it will be *said, sold for more than she [*295] cost; but what of that ? It is only so much the better for the underwriter. It does not alter the right which had before been exercised, and then stood unimpeached. The ground of the decision in Saidlcr and Craig v. Church was, that the plaintiff had waived his abandonment by taking possession, fitting out, &c. To govern this case by that, it must first be determined whether a sale at auction is equivalent to a fitting out: and this must be done only because there was no offer of her after her arrival here. And even then it must be considered whether this, as a reiterated act, and doing no more than what had already been done and refused, was necessary to be repeated. The sale at auction was a conservative act, done merely to prevent any future deterioration. It was a measure dictated by what had already taken place. The former refusal continued as a guide to the plaintiff’s future conduct, and on that he acted. Thé property was thrown into his hands, and it may, perhaps, be a question whether this did not of itsdf constitute him an agent for whomsoever concerned ? The repetition of the offer of the vessel was a work of supererogation. The waiver of the abandonment could never be considered as an act of intention, or premeditated design. It must arise from implication of law, and on the principle that a second nugatory offer, is, by law, absolutely necessary. That the mere selling a property insured is not a waiver of a previous

      abandonment, the decision of this very court has, it is believed, firmly established. In Bowne v. The New York Insurance Company, after a refusal of an abandonment, the goods arrived and were sold by the assured. It was held by this bench, that the sale was justifiable from the conduct of the underwriter. To be sure, a second offer might have been made, and had the advice of counsel been asked, it is more than probable it would ex cautela have been recommended : but it was by no means necessary, because the insurer had, from his Conduct, rendered it superfluous. He, the person entitled to the ship, which was then in the hands of the plaintiff, constituted him, by the refusal to [*296] accept her, an agent, as the foreign * writers term it, from necessity, lest an absolute loss of the whole subject matter should ensue. To preserve it was to the advantage of all parties. If the plaintiff was to have it, his interest required that care should be taken of it ;• if it was to fall to the underwriter, certainly his equally so, because he lessened his payment, and in the present case actually made a profit.

      Hoffman and Harison, contra.
    Whether the present is to be considered as a partial or a total loss is, in fact, the only point in controversy. That it is partial, the defendant insists: for this case is in no respect to be distinguished from Shaw and Qoold, (Edward and Charles Goold v. John Shaw, reported Lex. Mer. Amer. 295,) decided in this court, and confirmed on a writ of error: so that the principles there recognized are now to be taken as the settled law of the land. There the damage to the cargo did not affect the policy on the ship; because she was in a capacity to complete her voyage, though she did not do it on account of the injury her cargo had sustained, in consequence of which it was sold in Martinique. It follows, from the authority of the case referred to, that, as in insurances, freight, vessel and cargo, are distinct interests, the total loss of one by no means constitutes a right to abandon on the others. The underwriter on the ship has nothing to do with the cargo; and though the Mary was sold in St. Christophers, and the voyage thus broken up, as it is termed, that did not give any rights to the assured on the vessel. The interests were totally unconnected; an insurance on the voyage being by no means synonymous with one on the ship. For this distinction, the court will, find a sanction in Pooh v. Fitzgerald, Willes’ Rep. 641. The fact, however, here was, that the voyage was not lost, for the vessel arrived with a cargo and earned freight. So that allowing the loss of the voyage to mean a loss of the ship, and therefore, to give a right to abandon, and claim for a total loss, still that loss had not taken place, as the vessel could have brought a full cargo, though not the original one. She had lost no freight to create even a technical loss of the voyage. She had earned pro rata freight to St. Christophers, and from St. Christophers here she made full freight. There was not only *no loss of the voyage, but a profit- [*297] able one performed; and as to the ship herself, she had arrived in perfect safety. Except, then, this case Can be distinguished from Shaw and Goold, that decision must control this, and the claim be only for an average, not for a total loss. The determination also in Saidler and Craig v. Church, goes on all fours with the present case. The facts were exactly similar. It has been attempted to discriminate between them, but there can, in operation of law, be no essential difference between taking possession of a vessel and fitting her out, and taking possession of her ■and selling her. If so, it can never be meant, from the bare transaction itself, to say it was otherwise, when the sale had been at an advance for more than she cost, and the surplus put in the plaintiff’s, pocket. It is evident the plaintiff fully intended to adopt the purchase of his supercargo, who, it must be remembered, was also a part owner, and designed the sale for his own use. The conclusion is almost inevitable, that where a man makes a sale of what was his own, to a profit, he does it for himself. It had been done by the plaintiff without consulting the underwriter: from his own will, and in addition to this, what had been the conduct of the plaintiff since? He had never.once offered to account for the sales. If he had meant to have been considered as an agent for the underwriter, as suggested that he was from necessity, he would have offered to account for the profits. Instead of this, he has them now in his pocket, and can justify their being there, only on the ground of the re-purchase having been made on [*298] account of the former owners. *It had, however, been said, that in Saidhr and Craig v. Church, the underwriters had been merely passive, but here they had actually refused, and that from hence a diversity between the cases would necessarily arise. In Saidhr and Oraig v. Church, what had passed amounted to a refusal. An abandonment, followed by silence and non-acceptance, amounted to a refusal: for he who does not accept, refuses. If, however, any variety does prevail in the two cases, in this it is stronger against the assured. In Saidhr and Oraig v. Church, the condemnation, sale, &c. were forcible; the result of a capture: but here they were induced at the request and instance of the part owner and supercargo. The plaintiff has received his vessel, purchased in by his part owner; the underwriter, therefore, liable only for repairs. Insurance is no more than a .contract of indemnity : if it is to be so considered now, the plaintiff can recover only for a partial loss.
    ' The decision in Shaw and Goold is conclusive on the subject. To the judgment then pronounced, every man must accede, because, in insurances, the various subjects of vessel, freight, and cargo, are perfectly distinct; what, therefore, affected the one 'by no means implicated the others. Suppose a total loss of cargo and freight, let it be either absolutely or technically so, the assured on the ship would not, from this, acquire any right to abandon. Thai must depend on other circumstances: it cannot turn on her ability or inability to carry' her original cargo. If the vessel can be repaired for half her value, whether she be adequate to the conveyance of her cargo or not, can never give the assured a title to abandon, or claim as for a total loss of the ship. The vessel in question had earned nearly her full freight: the original cargo had paid it; the substituted loading had done the same. How, then, could a total loss be claimed for that ship which was then profitably and advantageously employed? Taking it, therefore, in the most complicated and connected point of view that could reasonably be suggested, there could not be a total loss of the vessel, while the freight was still subsisting. In order to ^establish this as a total loss [*299] the plaintiff must still more closely unite the subjects of insurance. He must advert to the incompetency of the vessel to bring home the cargo, and urge this as the foundation of his demand: and because the voyage is broken up on the cargo, the loss of the ship is necessarily to be inferred. This is in direct opposition to Shaw and Gould, the contrary of which was expressly determined. The triflng variations of that case from this cannot alter she point, for it is not every little change and alteration of circumstances, or any slight change, that would take one out of another. Should that decision not be sufficient to incline the court in favor of the defendant, Saidkr and Craig v. Church will govern the question. In that, as in this, it must be evident, from all the circumstances, that the purchase was for the benefit and on account of the assured. The property, when in the power of the plaintiff, was never offered to the defendant, and that alone is a waiver of the abandonment. In favor of such a construction, the facts now before the court are stronger than those of Saidkr and Craig v. Church. There the sale was involuntary and compulsive; here it was not only voluntary once, but twice; and the first sale even at the request of the supercargo and joint owner. Nor was this the whole .fi’om whence the construction of the purchase being on account of the defendant might be drawn. There was a shipment, a cargo taken on board on account of the assured. In other respects the cases were alike. In that, an abandonment not accepted; in this, an abandonment refused. In one case the vessel was employed, in the other she was sold. Had not the underwriters a right to be consulted as to the time, place, and manner of the sale? How does it appear that they were not willing to retain her? The plaintiff should have Offered them the freight, with the amount of the chárges for repairs, &c., and then have claimed compensation under his policy. Instead of pursuing such a line of conduct, the property is disposed of without their knowledge, and is now held. If this can be done, the security of underwriter is destroyed. There would, it must he confessed, be a difference, if the [*300] transaction *had taken place in a foreign country, where no application could be made to the underwriters; but here, when all concerned were on the spot, the parties who were so active, and without making any communication, must be held to have acted for themselves, In addition to these circumstances, the court, doubtless, will observe, that the plaintiff has received the freight earned by her, after her being bought in by the supercargo and joint owner. This, it is conceived, is tantamount to fitting out and employing her, and is evidence of her being in the service of her former owners.
    Hamilton, in reply.
    It is difficult to conceive how Shaw and Qoold could be connected with the present case; the dissimilarity is so great, it is scarcely possible to imagine how it could be pressed into the service. That case was an endeavor to constitute a total loss of the vessel, on account of a loss on the cargo. It was by the special verdict expressly found, that she could have been repaired for less than half her value; in the present instance it is as expressly stated “that she cannot be repaired for the full value of her when repaired.” I shall; after this preliminary observation, endeavor to show, that the principles of that determination will bear on this, and materially aid the plaintiff’s demand. For that purpose, it will be necessary to recur to the general position of the court: that in insurances, the various subjects are totally distinct: that in • construction of law, vessel, freight, and cargo are separate interests; and it is fully conceded, with the opposite side, that the loss of one does not constitute a loss of either of the others. On these data the court proceeded in Shaw and Goold. In that case there was no inability in the vessel ; she could have pursued her voyage with her cargo ;. here she could not. The ability of a vessel to perform her voyage with her cargo, is the very essence of the contract of assurance upon her: it is the substratum of the policy. The assured warrants that she is so at the commencement of the voyage, and the assurer engages that so she shall continue, against all the perils enumerated, until it be ter minated. If the vessel become unable to complete it *with her cargo, the court must consider it as a [*301] total loss with respect to her, and the policy for-felted. Nothing is now advanced, which is hot perfectly reconcilable with the distinctness of the subjects of insurance ; for the cause of the loss of the voyage was wholly the ship’s; it arose from her inability, against which the policy was meant to protect. When that inability could not be removed for half her value, then she, the very subject of insurance, was technically destroyed, and, abstracted from subsequent circumstances,' it became a total loss. The after purchase, then, was the only thing which could alter or prevent the result. Suppose her purchased for and by, any other person, how would that vary the underwriter’s liabilities or rights ? In either one case or the other, he is not defrauded or injured. The purchase on his account by the assured, can never be detrimental; he has the vessel at what she costs, and he has also what she sells for. In the case of Saddle)' and Craig v. Church, the aband onment was overruled, solely because the employing the vessel was deemed a waiver. I must again beg leave to insist on the agency from necessity of the plaintiff, and to deny that being merely passive in cases of abandonment, is equivalent to a positive refusal. The underwriter has SO days before he is under any obligation to decide on the offer to abandon; during that period, circumstances may require him to be cautions, and hesitate in pronouncing his determination; at this time he is passive. The defendant here refused at once without hesitation. The decision must be whether the offer to abandon ought to have been, and in all future cases 'must be, repeated after a positive refusal to accept. Living on the spot does not alter the question. To offer a second time would be from courtesy; for after one party has explicitly taken his ground on that, the other may act and make it the line of his' future conduct. Whether this rule is to be adopted or not, is now to be determined.

       It is supposed that the case alluded to by the learned counsel is that of M'Masters v. Shoolbred, 1 Esp. Rep. 231.

         See the second point made by the Chief Justice, ibid, 646, but note the insurance there was on a policy for time.

        V) The frequent allusion to the case of Saidler and Craig v. Church, making it in some degree a part of the present, the reporter has thought it necessary to state the facts of it as represented in the case made for the opinion of the court. They were, that the insurance made in the name of Thomas-White, was made for and on account of the plaintiffs, and that they were the sole owners of the vessel mentioned in the policy.
      That the vessel in her due course on the voyage- insured, was captured by a French privateer, and carried into Guadaloupe, and that thereby hoi said voyage to the Havanna was totally lost.
      That at Guadaloupe the vessel was duly libelled in the admiralty court, and was there condemned, and after condemnation was purchased by George Duplex, the master, as for the account of the owners, for the sum of eleven hundred and twenty dollars. That the said master was also a part owner. That the owners had since fitted out the said brig and sent her on another voyage.
      ■ That as soon as the owners knew of the capture, and before they were informed of the condemnation, or of the purchase by the captain, they gave the underwriters notice of abandonment.

   Radcliff, J.

delivered the opinion of the court. In this case, .the general question is, whether the plaintiff is entitied to recover a total or a partial loss? Two objections *have been made against the recovery for [*302] a total loss.

1. That the case of a total loss never existed.

2. That the purchase at St. Christophers by the super* cargo, who was also a part owner of the ship, and the subsequent sale at New York, without the consent of the defendant, or a previous offer or tender of the ship to him, amounted to a waiver of the abandonment, and an adoption of the vessel as his own.

With respect to the first, it appears that the ship was condemned at St. Christophers, as unfit to proceed on her voyage, on account of the injuries she had received; and the persons appointed to survey her there certified, that in their opinion, she could not be repaired for her full value when repaired. It is also admitted, on the part of the defendant, that in consequence of the disasters experienced on the voyage, she was so much injured, that it was impossible, from the high prices of wages and materials, to repair her at St. Christophers for half her value, so as to enable her to bring on her whole cargo. It is again admitted on' the part of the plaintiff, that in the spring following, the ship came to New York with a light cargo of molasses and rum, being about sufficient for ballast, and that she might have brought a full cargo of rum, which was proved to be very light and buoyant.

On these facts, I am of opinion that there existed a case of a technical total loss, and that the assured had a right to abandoned. The question in such cases is not whether the vessel be in a capacity, or in a situation to be repaired, so as to prosecute her voyage with a half, or any other portion of her cargo, but whether she is capable of proceeding, or of being refitted to proceed, and carry the whole. A vessel is not seaworthy, unless she be in a condition to carry a full cargo. The contrary idea is novel, and inconsistent with every principle of propriety and safety in navigation. The vessel was insured to perform her voyage, and carry her cargo from Batavia to New York. This she was disa bled from doing. The enterprise, therefore, failed, [*803] *by means of the perils insured against, and the plaintiff had a right to abandon, and claim a total loss.

■ The second question is, whether he has waived this right. The vessel was ordered by the court of admiralty at St. Christophers to be sold for the benefit of all concerned. The supercargo, who was one of the owners, purchased her on account of the assured. The assured had previously, on receiving advice of her condemnation, and before any notice of the purchase, abandoned his interest to the underwriters, who refused to accept the abandonment. In what manner the supercargo, being also one of the owners, might be affected by the purchase, it is unnecessary to determine. The question is, whether the plaintiff ratified his acts subsequent to the abandonment, and recognized the purchase as his own. In the case of Saidler and, Craig v. Church, (July term, 1799,) after an abandonment, a similar purchase was made, and the assured adopted it as their own, by availing themsel-ves of the advantage it offered, and fitting out and sending the vessel on another voyage for their own account. Under these circumstances, we considered the assured as having affirmed the purchase, and waived the abandonment.

The present case differs in this, that the plaintiff has done no act to affirm the purchase. He has not appropriated the vessel to his own use, and has not attempted to derive any benefit from the purchase. The vessel was sold at auction on her arrival at Hew York, and purchased by a stranger. Although it be not expressly stated in the case, the sale must be presumed to have been made for the benefit of the underwriters. It is objected that the plaintiff ought again to have offered to deliver them the vessel, or have consulted them as to the propriety of the sale. I think this was not strictly necessary. The abandonment was an offer to cede all his title and the possession of the vessel, as far as under the circumstances it was capable of being delivered. The plaintiff was not bound to do more and it being a case proper for an abandonment, the defendant ought to have accepted it; or, at least, the refusal was at his peril. He did not accept, and the plaintiff was necessarily [*304] *left to act ás his trustee in the disposition of the property. If he executed the trust fairly, he has discharged his duty, and it was not incumbent on him tb follow the defendant, and repeat his application to receive what he ought at first to have accepted. The sale at auction was, therefore, justifiable, and the defendant ought to be charged with a total loss, deducting the proceeds of the sale, and the value of the freight from St. Christophers to Hew York.

Judgment for the plaintiff for a total loss

         Whenever the injuries to the vessel within the perils of the policy, are such as to disable her from proceeding on the voyage, it is a total loss of all the subjects of insurance, if other vessels cannot' be procured to take the cargo. Manning v. Newnham, 2 Campb. 624. But a loss of the voyage as to the cargo is not a loss of the voyage as to the ship; if¡ therefore, on such an event, she be able or at liberty to perform her voyage, the assured on the ship cannot abandon and claim as for a total loss. Goold v. Shaw, 1 Johns. Cases, 293; Alexander v. Baltimore Insurance Company, 4 Cranch, 370, Hurtin v. Phœnix Insurance Company, 2 Marsh, by Condy, 601. a.

       After an unexcepted but effective abandonment the assured are qua» agents, or trustees, for the assurer, and the assurer, as to the subject of insurance, takes, or stands, in the place of the assured. Prom these two principles it necessarily follows, 1st. That those who were the agents of the assured become the agents of the underwriter, and that their acts as well as those of the underwriter, will, if bona fide done for the benefit of all concerned, be obligatory on the insurer as his acts, aid, therefore, cannot prejudice the rights of the insured: 2d. That the insured cannot claim from the insurer as for a. loss of that to which they were not themselves entitled. It results, from these deductions, 1st. That correspondents, consignees, supercargoes, and captains of the assured, are agents of the underwriter. Therefore, if the insured sell, even in the port of departure, the subject underwritten, without a view to his own benefit, it will not prejudice his claim for . a total loss. Walden v. Phœnix Insurance Company, 5 Johns. Rep. 310. Nor will going, after a loss within the policy from blockade, to a neighboring or other port, and a delivering there to the consignee of the insured, the goods underwritten. Schmidt v. United Insurance Company, 1 Johns. Rep. 249. 2d. That on an insurance on freight, though the goods to be carried be so damaged as not to be worth the transport, yet if the underwritten dc not entitle himself to it by an offer to take them on, he cannot recover from the insurer. Griswold v. New York Insurance Company, 3 Johns. Rep. 321. Nor will the acts of the insurer in saving of the cargo, and being present at its unlading and delivery, amount to an acceptance of the abandonment. Ib. lb. What shall be tantamount is a matter for jury determination. BeU v. Smith, 2 Johns. Bep. 98. After an accepted abandonment, all transfers and investments of the property are for the benefit of the insurer; who may maintain trover for the articles purchased with it. Robinson and Hartshorne v. United Insurance Company, 2 Caines’ Rep 280, affi"med in error, 1 Johns. Rep. 592.

       Where the loss was total at the time of abandonment, on a subsequent arrival, tender and refusal, holding the property 60 days, selling it and giving credit to the underwriter for the proceeds, said to be no obstacle to recovery Invingston v. Hastie and Patrick, January, 1803. But see, as to this poini^ Church v. Bedient and others, 1 Caines’. Cases in Error, 21, 42, 43,


source: Caselaw Access Project

author: Livingston, J. KJent, J. Lewis, Ch. J.

license: Public Domain

text:
    Purdy against M. and S. Delavan.
    An award in trespass that “ the said suit shall no further be prosecuted,” ia sufficiently final and certain, and a good bar to an action on the case for the same offence.
    This was an action for a conspiracy in burning the plaintiff’s barn, and the various articles it contained.
    The declaration contained seven counts.
    The first stated the plaintiff possessed of a barn and close, containing hay, &c. The defendants, knowing the premises, and contriving to injure, &c. the plaintiff, by a certain conspiracy, confederacy, and agreement, did cause the barn, &c. to be set on fire, destroyed and consumed.
    Second like the first, except that the defendants did conspire to set on fire, and cause to be set on fire, and consumed, and destroyed, the barn aforesaid, containing, &c. and by means of the conspiracy aforesaid, the barn was set on fire and consumed.

      Third. The same, stating that the defendants, by conspiracy, &e. did procure the barn, &c. to be set on fire, destroyed, and consumed.
    Fourth. That the defendants did conspire, &c. to set on fire and cause to be set on fire and destroyed, the barn last aforesaid, &c. with an averment that the barn 'was, in pursuance of the conspiracy aforesaid, set on fire and con sumed.
    Fifth. That the defendants, by a conspiracy before had, did cause and procure the barn to be set on fire and con sumed.
    Sixth. The same, only enumerating the contents of the barn.
    Seventh. That the defendants conspired to set on fire, *and they, in pursuance of their conspi- [*305] racy, did, &e. and did cause to be, by fire destroyed, the barn aforesaid.
    All the counts began as in trespass, “ for that,” concluding with “alla enorma against the peace,” &c.

    The defendants separately pleaded the general issue, with a notice, that on the trial they would severally give in evidence a former suit in trespass against the defendant Mathew, Hannah his wife, and the other defendant Samuel, for breaking the close of the plaintiff, and also for burning his barn, containing, &e. and that they would give further in evidence a submission of the said suit by the plaintiff, on the one part, and the said Mathew and Hannah for themselves, and the said Samuel their son, an infant, on the other part, to the arbitrament of certain arbitrators mentioned, and their award thereon made, by which the plaintiff was ordered to “to no further prosecute the said suit," and to pay the defendant, Mathew Delavan, 14 dollars and 68 cents costs; and further, that the suit on which the said award was made, was for the same trespass for which the present action was brought. The submission and award were in the following words:
    “ The condition of the above obligation is such, that whereas a barn of the above' Ebenezer Purdy hath been destroyed by fire, together with hay, grain, and other valuable articles which it then contained: and whereas the said Ebenezer Purdy hath instituted an action in the supreme court of judicature of the state of New York, against the before-named Mathew Delavan and Hannah his wife, and Samuel Delavan his son, for burning and destroying said barn, in which action the said Mathew Delavan, Hannah his wife, and Samuel Delavan, have pleaded not guilty, so that the said action, is now at issue: and whereas it is just and right that if the said Mathew and his wife and his son, or any, or either of them have or hath in fact, burned or destroyed the.said barn, or have or hath in any manner aided, abetted, assisted, contributed, occasioned or been privy to the burning or destruction thereof, (which they [*306] and each of them wholly deny,) *that then he the said Mathew Delavan shall pay Ebenezer Purdy all the damages he hath sustained thereby, which the said Mathew Delavan hereby agrees to do. And whereas the said Ebenezer Purdy and Mathew Delavan have mutually agreed to discontinue the said action, and to submit all questions, disputes, and controversies touching the destruction of the said barn and the contents thereof, and the damages the said Ebenezer Purdy hath sustained thereby, to the judgment and award of Epenetus Wallace and Hachaliah Brown, Esq. and Stephen Gilbert, farmer, or any two of them, arbitrators mutually chosen by and between the said parties, to arbitrate, award and determine, touching the premises. Now, therefore,” &c.
    The award set forth that “ whereas a certain suit has heretofore been commenced in the lupreme court of judicature of the state of New York, by Ebenezer Purdy against Mathew Delavan and Hannah his wife, and Samuel Delavan, his son, for the burning and destroying the barn of the said Ebenezer Purdy by fire: and whereas for the putting an end to the said suit, they, the said Ebenezer Purdy and Mathew Delavan, by their several bonds and obligations bearing date, &c. Mow, know ye that *\ve the said arbitrators, whose names are here- [*307] unto subscribed, and seals affixed, taking upon us the burthen of the said award, and having fully examined and dt considered the proofs and allegations of both the said par, js so made, publish this our award by and between the said parties, in manner following, that is to say, first, we do award and order, that the aforesaid suit shall be no further prosecuted: and further, we do award and' order that the said Ebenezer Purdy shall pay, or cause to be paid, unto the said Mathew Delavan fourteen dollars and sixty-eight cents, in full, for his costs and expenses in defending the aforesaid suit, and also for his expenses and attendance on this arbitration. In witness,” &c.
    The defendant’s counsel then moved the court to direct the jury to find a verdict for the defendants, on the principle that the submission and award so given in evidence barred the plaintiff of a right to maintain his present suit, which motion the judge overruled, declaring his opinion to be, that the award was not conclusive between the parties, so as to bar the plaintiff of his present action, with liberty, however, to the defendants to reserve the point, which was accordingly done.
    The jury, being charged by the judge upon the issue of not guilty, and having returned to the bar, said, they found the defendants guilty of the matter contained in all the counts in the declaration except the last, and of those matters they found the defendants not guilty.
    Woods, for the defendants.
    The present motion is to set. aside the verdict, and, if the court should be of opinion against us on that point, to arrest the judgment. On.one of these grounds we must prevail, and for that purpose shall contend that the award was, on the trial, final and conclusive evidence to bar the action; secondly, that the verdict finding the defendants guilty as to the first six counts, and not as to the seventh, is contradic[*808] tory; thirdly, that *this action, as it at present appears by the record, cannot be supported, being evidently a suit in trespass, which will not lie for a conspiracy, as the remedy ought to be by an action on the case. On the first point it must be admitted, the award was intended to be final and conclusive as to the burning the barn, &c. The plaintiff ought not to be permitted, after a suit for that very cause, and submitting it to arbitrators, who take on themselves the burthen of the award, and absolutely make it, to bring another suit for the same offence. The plaintiff cannot, by merely varying his form of proceeding, (if there be any variance in this case,) bring a subsequent action on the same grounds. The award is final and conclusive, therefore, on the cause of action, not the mere proceedings: it says, the “ aforesaid suit shall be no further prosecuted.” This must be taken as if it had been declared, the defendants shall never again be impleaded for burning the barn. The rule of construction in awards is more than it formerly was: the courts look to what was designed, because the arbitrators are judges of the parties’ own choosing, and not tied down to technical rules. In Strangford v. Oreen, 2 Mod. 228, the submission was, by the defendant on behalf of himself and partner, of all differences and controversies «between them and the plaintiff. The award was, “ that all suits which are prosecuted by the plaintiff against the defendant shall cease.” This, said the court, has the effect of a release. So here, that the “ suit shall no further be prosecuted,” will have the same ■operation. Another inference is to be drawn from this authority in answer to the objection that may be made, of the submission being only by some of those who were proceeded against in the first action: but they had a right to refer for the other, as they were the parents of the defendant Samuel. In the case cited, one partner submitted for all, and yet the award was not on that ground impeachable. The same principles will be found in Kyd, 212. Hawkins v. Oolclough, 1 Burr. 274. Gray v. Gray, Oro. Jac. 525. So in Harris v. Knipe, 1 Lev. 58, an award “ that all suits and controversies shall cease,” was held good and *mutual, though no other part of the award was [*309] valid. In Simon v. Gavil, 1 Salk. 74, the words were, “ that all suits now depending shall cease,” and it was urged in error to be final, “ because the meaning is not that the party shall give over and begin again, but that the suit should absolutely cease for ever, so that the right is gone, because the remedy is.” Even an award “ that a suit in chancery shall be dismissed” is final; because the court, “will intend this a substantial dismission and perpetual cession.” Knight v. Burton, 1 Salk. 75. 3 Yin. Abr. 67, pi. 28. As the second point will be spoken to by the other counsel in the cause, it will be necessary only to go to the third. The whole declaration is for a direct trespass: if so, it is not maintainable on a conspiracy. The mode ought to have been by an action on the case, or a writ of conspiracy, according to the register. That the present is a declaration in trespass cannot be doubted. The beginning of each count is “ for that,” and not circuitous, as is necessary in actions on the case, which, being for consequential damages, commence with “ for that whereas.” This declaration, therefore, cannot be in case; and if it be trespass, it will not lie. It will be found, on examining the authorities, that a bare conspiracy, without any act done in consesequence, cannot be the foundation of any suit. The first six counts, though they allege conspiracy, and that, the barn, &c. was burnt, do not charge us with it. If, in addition to this observation, there is any technical rule by which this declaration will be* deemed trespass, the court will apply it. In Scott v. Shepherd, 3 Wils. 403; 2 Bl. 892, the court held vi et armis conclusive on the question; here the words are against the peace of the people, which 3? tantamount. Are not the counts charging a direct injury to the plaintiff? . Do they not show it in express terms? If so, shall it be permitted the plaintiff, by adding the words conspiracy, &c. to use the declaration just as it suits his purpose ? as case to maintain the suit as a conspiracy ; and when objected to on account of form, to turn round and say it is trespass. If it be so, it is the same as saying the defendants burnt the burn, and negatives that [*810] they caused it to be burnt. There *is no method of supporting the declaration, without first setting aside all the rules of pleading which relate to trespass and conspiracy.
    Colden, Hoffman and Munro, contra.
    We shall first speak as to the award. It is necessary that all awards should be final; and, therefore, either to be nonsuit or discontinue is insufficient, though to enter a retraxit is good. These positions show the nature of awards on this point. That all suits shall cease comes within the rule of a retraxit, but that a suit shall be no further prosecuted cannot: the court, however, will determine whether they are tantamount. But this is not the real ground of objection; the one most relied on is, that the award is not of the matters which were submitted; that it differs from the submission. Ii this be the case, it is void, and no averment in pleading, not even an affidavit of the arbitrators as to their meaning, can help it. For this the court will find authorities in Bacon v. Buharry, 12' Mod. 129. Dyer, 242, b.; Kyd on Awards, 207. The award must" set forth that it is on the matters submitted. What, then, was submitted ? has the award been made in pursuance? The arbitration bond mentions, “ all questions, disputes and controversies, touching the destruction of the said barn,” &c. It does not submit the question of that suit. The arbitrators were empowered to determine matters not the basis of that suit: •yet they confine themselves to award on that, and determine against the plaintiff. The award begins, “ whereas a certain suit,” ascertaining whát is meant by them. They then proceed and say, “ that the aforesaid suit 'shall be no further prosecuted,’’ when they were determine on all cohtroversies. On this account, therefore, the award is void ; for the submission was of all, and they have confined themselves to one. Besides, they only say, “ if he shall abide the award,” and not “ on the premises.” From the case, it appears, the award was properly rejected ; it is not stated that any evidence was given on the trial, of any connection between the suit then brought, and the suit referred to by the award.
    The rule laid down in Scott v. Sheperd is no doubt correct; that case decided vi et armis to *be [*311] in trespass. Where the declaration is not in those words, the action is in case: so here, it not being stated to be vi et armis, the suit must be considered as on the case for a conspiracy, "and every count expressly alleges, that the.act conspired to be done was absolutely performed. Here the conspiracy is the gist of the action, and that being found, the words “against the peace,” &c. may be rejected. Com. Dig. tit. Pleader, E. 12. 1 Bac. Abr. 94. In Herne’s Pleader, 235, a precedent in point will be found. As then, the contra pacem may be rejected, even allowing that the formal commencement of each count “ for that” is bad in case, it is settled wherever there may be the same pleá and judgment, different counts may be United.
      Brown v. Dixon, 1 D. & E. 276. Dickson v. Glifton, 3 Wils. 319-Mast v. Groodson, 8 Wils. 354. So here, ás we have ah alternative either to bring cáse ór trespass, 3 Black. Com. c. 12, p. 208, take it either as one or the other, it is well brought. But, at all events, it is now tóó late to take advantage of this informality intended to have been insisted on; it ought to have been- by way of demurrer to the declaration. The English authorities cannot apply exactly to the present case. By them, the civil injury is merged in the felony: our state act(a) prevents that, and, therefore, nothing perfectly alike can be found in their books. That .the verdict is contradictory, has not been touched on in argument, though made a point in the outset. If the position .of the other side is true, there never can be a conviction upon one count of an indictment, where there is an acquittal on another. The trespasses in the several counts are supposed to be distinct; the finding, therefore, on one does not contradict that on the others, and the plaintiff may take his verdict, and have judgment on that which is for him. The court may view this case now before them as one 'with a double aspect; either to set a side the verdict, or to arrest the judgment. The latter will never be done, where sufficient appears on the record to enable the court to pronounce. On a general or special demurrer, it [*312] might have been otherwise. In Brownlow, *70. a similar declaration is to be found; an action for a conspiracy in the nature of case, ought to be without vi et qrmis. Herne, 71, 88,14jf, 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 not. 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 that counts in case begin as well with, as without one, and as it is now after verdict, against the peace must be rejected as surplusage, and then the declaration is plainly case. The contradiction in the verdict can be supported 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.
    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 cannot 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 inj ury, it is consequential reparation that is sought and must be case. If it is for the actual burning, 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 Baym, 961, will, on reading, be found ^against Mr Golden’s positions. The case stated [*313] 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, therefore, must necessarily be set aside.

       It has been said that an aBtion upon the case is founded upon a wrong, and concludes contra pacem. Yaugli. 101; F. N. B. 92, E. But this is a mistake, for actions contra pacem are a species of actions vi et a/rmis. See 1 Mor. Vad. Mec. 65.

         The rule is rather where the process, plea and judgment are different^ the couúts cannot be joined. See Tidd’s Prac. 12, n. w.

         The act for regulating certain proceedings in criminal cases, 21st March, 1801, c. 60, a. 19. 1 Rev. Laws of N. Y., 264.

   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 pas sess 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 de struction. If they thought the Delavans innocent, then they were further to decide how they were to get rid of the plaintiff’s claim, and be reimbursed for the expense 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 tó 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 expense 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 consist-[*314] ent *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 búsiness, 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 bel ng uncertain or inconclusive. More enlarged views at length prevailed, and judges discovered a laudable Solicitude to maintain these extrajudicial determinations, and thus put ah end to controversies, if this could be done without violai ing certain fundamental rules, from which it was thought unsafe to depart. If certain to a common intent, arid 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 fur-’ ther 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 Baym. 9'61, admitted of more doubt, and yet those awards were adjudged certain and final. In my opinion, therefore, this award ought to have beén 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 jud’gmeht, 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 [*315] come before us again, I am ready to say that if a new trial had not been granted, I should not have béeú for arresting the judg'ment. 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. If is true, it is somewhat prit of the com mon form, and that some expressions are found in it riot 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 surplusage, rather than cause judgment to be arrested.

KJent, 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 firsts and in this the great question is, whether the award oughi to have been ¿received in evidence.as a bar to the presen' suit. If the award in question be good and valid, in pur suance of the submission, it may undoubtedly be pleaded or given in evidence; as this suit is for the same matter which was the subject of the submission. Kyd on . Awards, 242.

Awards are to be liberally construed, because they are made by judges of the parties’ own choosing. 1 Burr. 277; 2 Wils. 268. But they 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 award 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 arbitrators, taking upon themselves the [*316] burden of the submission, *and having fully ex- • amined, and duly considered the proofs and aliegations 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 and 68 cents, for his costs and expenses in defending the suit, and attending the arbitration.

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 determination 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 arbitrators 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 examined 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 merely 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 intent 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 forever 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 declared 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 furnished the arbitrators with a full discussion and knowledge of the merits of their controversy ; that the law requires awards to be liberally and favorably expounded; so that they may answer the.purposes for which they were intended; and under these con' siderations, we cannot doubt of the intent of these words, “ that the said suit shall be no further prosecuted.” [*817] It was as *if they had said, 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 may pay the costs, if a new suit may be immediately brought ? There was no possible use in such an award. It would no.t 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 ponsistent with probable presumption. It would be contrary to the modern established rules of interpretation, and is, consequently, to be rejected.

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 putting a final end to the controversy, as a nonsuit was no bar to a new action. Kyd, 140, 141, 6 Mod. 282. 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, 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. Kyd, 141, 142. This is a case strongly bearing upon the present; for awarding that a suit shall be no further prosecuted, 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 understood that it shall be dismissed and cease forever; that is, a substantial dismission and cesser, and not the shadow of one. Knight v. Burton, 6 Mod. 232 ; 1 Salk. 75, S. C.

*So an award that a\l suits between the parties shall [*318] 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 in an award, that all suits which are prosecuted by the plaintiff against the defendant, shall cease. Squire v. Grevell, 6 Mod. 34; 1 Salk. 74; 2 Lord Raym. 691; Stangford v. Green, 2 Mod. 228 ; see also Cro. Jac.. 525.

The only authority I have met with, which holds up a' 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 th<? cases already referred to, the parties submitted all contra versies between them to arbitrators, and the award [*319] *was, that all suits which were prosecuted by the one party against the other, should cease, and it was held good. 2 Mod. 228.

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. Kyd, 148. But this mutuality is nothing more than that the thing awarded to be done, should be a final discharge 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 Baspoles Case, (8 Co. 97, b.) the submission was general, of all mat' ters 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. Com. Rep. 328. So where a certain alleged trespass was submitted 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 sum 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, (p. 153) 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 case, and it will Toe 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.

Lewis, Ch. J.

This is substantially an action by the plaintiff against the defendants for consuming, by fire, his *barn, together with its contents. [*320]

The defendants pleaded the general issue, and gave notice that on the trial they would give in evidence, in their discharge, an arbitrament and award on the subject matter of the suit.

On the trial, the judge not supposing the evidence 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 plaintiff 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 *and the contents thereof, and the damages the [*321] said Ebenezer 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 “ that the said suit shall be no further prosecuted, and that the plaintiff shall pay the defendant Mathew 14 dollars and 68 cents, in full for costs and expenses.”

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. 1 Salk. 74, 75, Eaym. 961; 6 Mod. 33.

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 dollars and 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 expenses. 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 positions are advanced.

1. That the finding of the jury is repugnant and contra* dictory. This was also made a ground on which the motion for a new trial was founded.

*2. That the plaintiff has misconceived his action, [*322] 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 meani?;__ of the jury is, that the defendants did cause the barn to „ ^ 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 surplusage. They have two of the characteristics of trespass. The charges are direct without recital, and the injury complained of is stated with a contra joacem. It only remains, then to inquire 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, however, apply to all cases,) as where it is accompanied with force, and where it is not; where it is done'on the immediate possession of the plaintiff, and where done elsewhere, though it damage such possession. In the case before us, the injury, if any, [*323] 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 fadtper alium, fadtper se, will apply to them. Hor will it, in my opinion, .vary the case, though the conspiracy, and not the burning, should be considefed the gist of the action. For, in that case the burning must be considered as introduced under a per quad, 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 restored 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, inquire whether the facts will warrant trespass or case. Such was the decision in Slater v. Baker and Stapleton, 2 Wils. 359, recognized in Scott v. Shepperd, 2 Bl. Rep. 897, by Blackstone, J. who, while he differed in opinion from his brethren, declared, that after verdict, 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.

New trial granted.

        Waite v. Barry, 12 Wend. 377; Vosburgh v. Bane, 14 J. R. 302; Jaikton v. Amblar, id. 96.

        Weed v. Ellis, 3 Cai. R. 253; Byers v. Van Deusen, 6 Wend. 268.

       See Munro v. Alaire. 2 Caines' Rep. 320, and notes.