fabhiit, and the arbitrators award that nothing fhall be paid, then the award is void-and this may be called a naked award for nothing is awarded from one to the other; but if the arbitrators, should or. a full hearing of the parties, judge that no trespass had been committed, and therefore award no damages, this could not be called a naked award, because they decide respecting a certain fact, which takes away the right of demand from one, and discharges the other, which makes the award equal, and mutually beneficial. It nray therefore be laid down as a rule, that where a challenge is made for damages on account of a trefpafs, and the matter being fubmitted, the arbitrators award that no trespass has been committed, that this is a final fettlement of the controverfy, and may be pleaded in bar of an action brought for the fame thing But if a literal conftruction of the common law rule be admitted, a claimant may, after a full hearing before arbitrators, and anaward that no trefpafs has been committed, and that he has no right to recover damages, might then refort to his action at law, and have another trial on the merits, becaufe as it faid, that if there was no trefpafs, there was nothing about which an award could be made; and if there was a trefpafs, damages ought to be awarded. This reafoning however is founded upon a palpable abfurdity. For by the fubmiffion, the arbitrators are to decide whe ther a trefpafs has been committed, or not, and they are as com petent to say, that there has been no trespass done, as they are to fay there has been, and to award damages therefor. "If they de eide that no trefpafs was committed, it cannot be faid that there' was nothing about which an award could be made, because the determination that no trefpafs did exift, is deciding upon a fact that was the ground of the controverfy between the parties. But if we fuppofe the rule to be founded on the idea, that the parties recognize in their fubmiffion that a trefpafs has been committed, then perhaps an award that nothing fhould be paid would be void.This however, cannot be fuppofed to be the principle on which the rute is founded--because it says if there was no trefpafs, there could be nothing about which an award could be made, which fuppofes an enquiry refpecting the exiftence of the fact. But if in fuch cafes the arbitrators fhould find that no trefpals had been commilt '-ted,' ted, and award nothing to be paid to the claimant, and that he fhould pay coft, or that the parties fhould execute difcharges, then the award is by no means naked, and must upon the clearest principles be held good. The performance of an award must be poffible, and lawful; therefore an award to do a thing that is against law, or that in the nature of things is impoffible, is void. An award ought to be certain, and final, so as to make an end of the controversy. A conditional award is not good because not final-fo where a thing is referred to the future judgment, or expofition of the arbitrators it is void. An award may be good for part only, but then it must be final as to that part. с Every award is to receive a liberal conftruction, and to be go verned by the intent of the arbitrators, where no inconvenience will enfue. If no time be limitted for the performance of an a ward, it is to be performed in a reasonable time. 4. Of pleading awards. A good award may be pleaded in bar to an action brought for the fame thing. An award to pay money at a day to come, may be pleaded in bar to an action brought for the fame thing before the day; because it becomes immediately a debt due, tho' to be paid at a future time; but if the money be not paid, or tendered by the day, then an action may be brought for the original thing, and fuch award is no bar; because of his neglect to perform it.Where an award directs only mutual releafes, it is not a bar to an action brought for the thing fubmitted, till the releases are ex ecuted. If one party fhould refuse to execute his release, and fhould bring an action for the original thing, the award can be no bar to the recovery-but the other party may bring an ac tion against him for refufing to execute fuch releafe, and recover back all fuch damages as were recovered from him. In fuch cafes perhaps the wifeft principle would have been to have made fuch an award when the party had tendered a release, a bar to an action for the fame thing, tho' the plaintiff refused to release, which would have faved one action. A diftinction is taken between awarding collateral things to be done, which raise a new duty, a I Bac. Abr. 146. Satk. 69. di Bac. Abr. 150. 1 ty, and discharge the old, and therefore may be pleaded in bar tho' not executed, and when a release only is awarded, which creates no new duty. It is however manifefted that the awarding the execu tion of a release is a new duty, and ought as much to discharge the original right of action as any collateral thing. When an award is regularly made it can be fet afide only for corruption, and misbehaviour in the arbitrators. There can be no appeal, no new trial, no review of the merits of the caufe.When the party has elected his triers, he must be bound by their fentence. But when the arbitrators exceed their inftructions, and do not comport with the formalities of law refpecting awards, their proceedings are of no validity. When they are guilty of corruption, misconduct and partiality, courts of equity may interfere, and fet afide their awards. If three arbitrators are ap pointed, and two fhould exclude the other by fraud or force, and have private meetings, and admit one of the parties, the award would not be good. Courts of equity may also set aside awards where the arbitrators committed mistakes-but thefe miftakes must not be confounded with misjudging. They must be mistakes merely in computation, or calculation, which they would have corrected in the time of it, had they difcovered them-but where they proceed upon erroneous principles, and misjudge with their eyes open, there is no poffible remedy to fet afide their awards, however remote from juftice; for as the parties elect them, they must abide their determinations. • Upon a motion to fet afide an award of arbitrators, where the fubmiffion was by rule of Court, on the ground that the arbitrators had mistaken the evidence, and the law, the Court refused to make any enquiry, becaufe it would defeat the main defign of arbitraments, to subject awards to a revifion in the nature of an appeal; and arbitrators being judges of the parties chufing, they are at liberty to decide on any principles, which, in their opinion will do justice between the parties, and the reasonableness or unreafonableness of an award, does not affect its validity-if there be no mifbehaviour, or corruption in the arbitrators. a Kirb. Rep. 353. D CHAP. CHAPTER SECOND. OF THE REDRESS OF PRIVATE WRONGS BY SUIT OR ACTION. IN the preceeding chapter, having difcuffed the remedies that re fult from the operation of law, and the act of the parties: I next proceed to confider the various kinds of remedies by fuits, or actions brought before courts of law inftituted to hear and determine them. In the first book of this work, I treated at large of the feveral courts, and their jurifdiction; and of course we are prepared to delineate the mode of application to fuch courts, to obtain a redrefs of injuries. A wrong or injury is defined to be a deprivation, or infringement of right. A fimple reftitution of that right to the party injured, would not be a compleat compenfation, because damage muft accrue to him for the lofs of the ufe, and enjoyment of it. To furwifi adequate relief, it is neceflary that fomething fhould be given in fatisfaction of fuch damages. There are many inftances in which a fpecific reftitution of the right, cammot be accomplished; as incafes of affault, and battery, falfe imprisonment, and the like. A reparation of fuch injuries can be made only by compelling the wrong-doer to give fomething to the injured party, by way of amends, and fatisfaction. In almoft every inftanee of a wrong to perfonal property, it will be impoffible to make specific restitution, for the property may be deftroyed, or conveyed away out of the reach of the law. On this account, there is no remedy to recover the specific thing, if it be of a perfonal nature, but only fomething as a compensation for the damages. In difputes refpecting the title to things real, this difficulty does not exist; but the poffeffion of the land in controverfy may be recovered. A remedy therefore is calculated for that purpose, whereby the party injured' recovers poffeffion of the land, as well as damages, for the injury. The damages in all cafes are affeffed in money which is the medium of commerce, and the standard to afcertain the comparative value of different kinds of property, and is a fixed, and accurate measure for the estimation of damages. An An application to a court of law for the redress of a wrong, is called a fuit or action; which may be defined to be "a profecu-" tion before a court of law for the recovery of one's right." The perfon who brings the action, is called the plaintiff, and the perfont against whom it is brought, is called the defendant. Actions are as various and as numerous as is necessary to redress all the wrongs that mankind can fuffer. For every injury that a man can sustain from his fellow-creatures that comes within the description of law, an action is framed by which he can obtain fatisfaction. It is therefore a common maxin, that for every wrong there is a remedy. Actions may be divided into two kinds, perfonal and real. Perfonal actions are those by which a man claims damages, as a fatiffaction for the non-payment of fome debt, or the non-performance of fome duty, or for fome injury done to his perfon, or to his property, either real or perfonal. Real actions are brought for the recovery of the poffeffion of things real, and alfo for damages as a fatisfaction for unjustly depriving, or holding the plaintiff out of poffeflion. By the law of England, real actions are calculated only to recover poffeflion of things real, and not to recover any damages. They have therefore introduced another species of actions, called mixed; which is faid to partake of the nature of real and perfonal actions, because they recover thereby the poffeffion of the lands, as well as damages. In this state we have no action that comports with the English definition of a real action. Our action of diffeifin compares with the English real actions in this refpect, that it will be in all inflances for the recovery of the poffèffion of lands, where the plaintiff has a right of property; and with their action of ejectment, as damages may be thereby recovered. But as this is the only kind of real actions known to our law, and as it would be improper to admit a divifion of actions called mixed, when the law does not know the original kinds of actions of which it is compounded, I have thought proper to reject this divifion of actions, and to confider our action of diffeifin to be a real action, tho' damages can be recovered by it. This will fimplify our legal fyftem by retrenching unneceffary divifions. Perfonal |