1810. done.(a) But this being an error committed by the Court MARCH, at the instance of the defendant, the plaintiff is entitled to the benefit of the decision, which was in his favour, and correct upon the merits. V. Brock. (a) 5 Rep. case. 3 T. 119. Cock shaw. 2Tidd's 2 H. Black. Hunter. The plaintiff proved his claim in the first place. The defendant endeavoured to overthrow it by proof of deli- 104. Baker's very of a note. In such case, "the defendant must prove the agreement of the plaintiff to accept the thing delivered 26. 1 Dong. in satisfaction."(b) But, as to this point, the testimony ad- sedge v. Fan, duced is doubtful. Thomas Woodroof is the only witness, Pr. 793 citing and he unworthy of credit, having told different stories at 187. Gibson different times, and being strongly opposed by other cir- & Johnson v. cumstances. On a demurrer to evidence, the Court must presume any and every fact which the Jury might out of complicated testimony have inferred. (c) The Court, in (e) 2 Wash. this case, might have inferred that the plaintiff was im- 210. Stephens posed upon by Stevens, in passing upon him Holt's bond, knowing it to be good for nothing, and were therefore right in disregarding the pretended payment by the transfer of that bond. 2. The plea of " arbitrament and award" was no plea, for reasons similar to those which influenced this Court to de (6) Peake's Ev. 249. v. White, cide that the word “ justification" was no plea in slander.(d) (d) Kirtley v. And though this was a mispleading, and the issue joined Deck, 3 Hen & Munf. 388. immaterial, the defendant, who was the party guilty of the first fault in pleading, has no right to take advantage of it.(e) A repleader ought not to be awarded, but the plea should be disregarded. (e) Ibid. 3. The evidence of the award should not have been received on the plea of non assumpsit. By that plea, the defendant puts the plaintiff on proving the whole of his case, and entitles himself to give in evidence any thing which shews that no debt was due at the time the action was commenced.(f) Now, this award was made after the action brought, and should, therefore, have been specially 248. Tidd's pleaded, as a matter of defence arising puis darrein conti- Pr. 592. nuance. Besides, it could not be a bar, without a rule of (f) Peake, 1810. Harrison V. Brock. (a) 1 Rev. Code, c. 52. p. 49, 50. Lord Raym. 789. MARCH, Court.(a) The agreement was, that the submission should be made a rule of Court; but this was never done, and appears to have been neglected as much by the defendant as the plaintiff. It was not proved in Court by the affidavit of any witness thereto, (as the act concerning awards requires,) nor "entered in the proceedings of the Court," nor was a rule thereupon made by the Court. Without such rule, it was a mere agreement to submit to arbitration, revocable by either party,(b) and not sufficient to oust the Courts of Law or Equity of their jurisdiction. (c) A separate action might have been maintained for a breach of this agreement, (d) but it could not bar the plaintiff from proceeding in the suit then depending; neither could the (d) Ibid. 749. Court have granted an attachment for not obeying the award (e) 2 Term entered thereupon.(e) Indeed, the failure to have the rule Rep. 643. Owen v Hurd. of Court made was an implied revocation. (b) Tidd's Pr. 748, 749. citing 8 Co. 62. (c) Ibid. ci ting 8 Term Rep. 139. Thompson Charnock. 756. v. 8 Term Rep. 4. The award in this case was neither certain, mutual, nor final. It could be understood only by referring to other testimony of a parol and disputable nature. It was not mutual; for, while it went to establish the defendant's claim to a credit, it did not settle the amount of the plaintiff's account. Neither was it final; for it did not dispose of the suit at all, nor settle the question of costs. Besides, the testimony of one of the arbitrators proved that they received the illegal testimony of Stevens, which might have influenced one of them, if it did not the other. Botts, for the appellee. It may be collected from the record, that all the testimony, except that relative to the award, was introduced by the plaintiff. Suppose, therefore, the defendant's evidence nothing, as he demurred, yet the contradictory facts disclosed in the plaintiff's evidence were sufficient to destroy it. Probably the only witnesses who knew of his claim were those who also knew of its being satisfied by the transfer of Holt's bond. It is said not to be sufficient for a demurrant to demur in the forms usually practised, but he must "distinctly ad 1810. Ilarrison V. Brock. (a) 2 H. Black. 187. (b) 2 Call, 241. mit upon the record every fact and every conclusion which MARCH, the evidence offered conduces to prove!" This doctrine is indeed laid down in the single case of Gibson & Johnson v. Hunter,(a) but is not conformable to the practice of this country. In Knox v. Garland,(b) Hyers v. Green,(c) Hyers v. Wood, (d) and Biggers v. Alderson,(e) the demurrers contained a statement of all the evidence on both sides, and concluded without any distinct admission by the defendants. (bid. 555. (d) Ibid. 574. The counsel observed, in the last mentioned case," that () Hen, & Munf. 54. by a demurrer to evidence the defendant not only admits the facts stated, but every rational inference which a Jury might deduce from them;" and this appears to be the correct doctrine, that such is the effect and construction of the demurrer, without any distinct admission. Whether the practice should be one way or the other, might appear a matter of no importance; but the inconvenience of establishing the rule contended for goes to the total destruction of demurrers to evidence. How is it possible for the demurrant to fix on the inferences which might be drawn from the evidence? But this, in fact, is the province of the Court, according to the case of Stephens v. White.(ƒ) The effect of the demurrer then being that the defendant impliedly admits the truth of the plaintiff's evidence, it only follows that he admits it such as it is; but here the plaintiff's own evidence was contradictory, and therefore the Court could infer nothing from it in his favour. On the merits, he was not entitled to a judgment; for it is not at present proved that Holt was really insolvent, and Harrison ought not to hold the bond against him, and yet come upon Brock; neither is Brock responsible for any fraud committed by Stevens without his privity. I admit the plea of " arbitrament and award," in so many words, was bad; but it gave the plaintiff notice that the defendant intended to rely upon an award, and was, therefore, sufficient to let it in upon the plea of non assumpsit, as where there are bad counts and good counts in the same declaration, evidence may be received upon the good counts (f) 2 Wash 210. 1810. MARCH, of facts of which the defendant had notice by the bad counts, the great object being to prevent surprise, by giving notice of the cause of action, or ground of defence, as the case may be.(a) Harrison V. Brock. (a) 3 Wash. But, if the award was not admissible, the objection 180. Overton should have been taken by bill of exceptions. The evidence & Wife v. Hudson would certainly have been proper by consent of parties; and the plaintiff's not excepting was equivalent to a consent on his part. 71. Mr. Munford contends that, since the award was made after the action brought, it should have been specially plead ed. But the same objection was taken and overruled in (b) Wash. Turberville v. Self.(b) The award does not make the payment, but ascertains that there was a payment before the (c) Ibid. 72. suit.(c) It may be considered as an indirect agreement of the parties to the facts stated therein. (d) 158. If the failure to make the rule of Court was a revocation, I wish the counsel had fixed the time when it was to be considered as such. But, in fact, the submission was never revoked; for both parties attended with their witnesses, and acquiesced in the authority of the arbitrators, Their award might and ought to have been made the judgment of the Court; the going on afterwards to trial by Jury was an error favourable to the plaintiff, and not a subject of complaint on his part. Taking the submission and award together, every reasonable degree of certainty is attained. The statute of jeofails applies to awards by analogy; but it is not necessary here, for no other controversy between the parties is stated, and no other debt appears but that for which the suit was depending; and, as to the supposed illegality, the 1 Wash. case of Pleasants, Shore & Co. and Anderson v. Ross (d) shews that an award is not to be impeached on the ground of a mistake in law or fact, upon affidavits to prove it, but only where such mistake appears upon the face of the award. 1810. Munford, in reply, said, he did not mean to contend that MARCH, an express admission of the truth of the plaintiff's evidence was necessary in the demurrer. An implied admission Harrison would equally answer the purpose; but such admission cannot be implied where the defendant introduces evidence to contradict that of the plaintiff. In this case, what testimony was produced on each side does not distinctly appear in every part of the demurrer ; but, at any rate, the award, and the witness in support of it, went to contradict the plaintiff's evidence. On his part, the justice of his claim originally had been fully proved. Thomas Woodroof, (the only witness who said that he had taken Holt's bond in satisfaction) had been completely discredited by William Shelton. The circumstances proved by other witnesses, particularly that after presenting the bond to Holt for payment, the plaintiff immediately returned to Stevens, and wished him to take it back; that, some time afterwards, he applied to the said Stevens, and said he must assign it to him; that Holt was believed by many to be insolvent at the time of the trade, and that Stevens himself believed him to be so, but told the plaintiff he expected he would get the money upon application; were amply sufficient to authorize the Jury to conclude, either that the plaintiff had not in fact received the bond as satisfaction, or that the trade was not binding upon him, being annulled. and rendered void by the fraud; yet the award declared that the said bond was received in payment, and ought to go (without recourse) to the extinguishment of the said debt? This was certainly declaring that no fraud existed, and contradicting the whole current of testimony on the part of the plaintiff. The Jury, therefore, and not the Court, ought to have weighed the award compared with the other testimony, and determined which should preponderate. The doctrine that the defendant may, in every case, by means of a demurrer, submit his evidence contradicting that of the plaintiff, to the Court, instead of the fury, 2 goes to the total destruction of the trial by Jary,” and V. Brock. |