Сн. 2. Art. 7. Cro. El. 66, 49 E. 3. 3.-1 far one by the act of the parties, that no recourse is had to legal process, unless one party refuse to perform the award; as an award is often a plea in bar in assumpsit and other actions, and is, also, often the foundation of an action, it will be considered, for the most part, under the heads of assumpsit and debt; and only a few things will be noticed here, and some few in pleadings. § 2. The ways of submitting to arbitration are many; as by bond or covenant, in writing or by parol, all demands or some demands particularly specified. So that the award be made generally or by such a time; by all the arbitrators, or by a major part of them, in writing or in writing under seal, &c. The law in regard to awards has been materially altered in two centuries. Ancient niceties and strictness are now rejected; and the courts of law, as well as courts of equity, principally regard the intentions of the parties submitting and of the referees. 3. It is, however, still a legal question of some nicety, when an award extinguishes the old cause of action; when it does not, that may be again referred or sued. But neither when the award extinguishes it. The general principle is, that the award extinguishes it, whenever it gives a new cause or ground of action. But there are some exceptions to this rule; for in some cases the party in whose favour an award is made may sue on that, or resort to the former cause of action, and in some not; and it is only in the latter case the award finally settles any matter between the parties, by their act &c. and without legal process. § 4. Anciently there were some decisions that an award did not bar the former action, unless performed or executed. Hence in trespass, the defts. pleaded an award in bar, that the defts. should pay to the plt. 20s. &c. but did not plead payment; to which the plt. demurred, because he did not plead performance of the award, and the demurrer was allowed by the court. This is not the law now. 5. It has also been held, that if the award be, that the Bac. Abr. 224. deft. pay a sum of money at a certain day in satisfaction of an action, and fail to pay at the day, the award is no bar, for it is his fault he does not pay according to the award. And in this Rol. Abr. 267. case he shall not compel the plt. to sue on the award: but a tender of payment is equal to a performance. So if the party entitled to receive, neglected performance on his part. -1 Bac. Abr. 224. 6. But now the established rule is, that an award without performance is a good bar to an action on the case, if the parties have mutual remedies against each other to compel an execution of the matters awarded, but it is otherwise where there are not mutual remedies to enforce performance. And if the award be void, and the plt. has no remedy on it to enforce performance, it is no bar to the action. And if an award be right, the court will not intend it otherwise, and in order to set it aside the mistake must be plain and gross. CH. 2. Art. 7. § 7. And whenever an award is only as to a particular matter, Lofft 34, 554. it must be so pleaded, and not as to a general indebitatus assumpsit; as where the award extends to certain grain only, then it extends not to a general indebitatus assumpsit; but if an award be general and valid, it may be in bar of all the pro- Carth. 187, mises generally for when the deft. pleads on award after 188.-1 Bac. the promises made, he admits the plt. has cause of action on Abr. 226. them, but that he is barred by the award, and this bar can extend no further than the award goes. And the admission even of the colour of an action is sufficient to prevent the pleading amounting to the general issue. 8. So an award is no bar, where nothing is awarded, that 12 Mod. 423. will bear an action, though mutual releases be awarded. § 9. An award decides the right as effectually as a judgment at law, or a decree in chancery; and is as binding, till regularly set aside in a proper manner. 10. It is said that awards must be mutual; this means no more than that where a sum of money &c. is awarded to one party, there must be money &c. or a discharge to the other, by release or otherwise. And if it appear "by the general tenor of the award, that the thing awarded to be done on the one side, was intended as a recompense for injuries sustained by the other, that is considered as rendering the award sufficiently mutual, without any words of discharge." § 11. And it is now settled, "that it is not necessary that the award itself should express that a sum, awarded to be paid, or an act to be done in favour of one of the parties, shall be in satisfaction; or that it should contain any equivalent expressions a discharge to the other must necessarily be presumed from the payment of the sum or performance of the act." -1 Bac. Abr. 227. Kyd on Award 148, 153. in error 130, 187. § 12. An award performed is a bar to an action for a mat- 1 Day's cases ter submitted and awarded upon, till regularly set aside; nor 134-1 Esp. can the plt. in such action attack its validity, by alleging fraud R. 377.— in the party obtaining. This decision must have been on the Peake's R. ground, that an award is in the nature of a judgment, rendered by men appointed by the parties, and not to be indirectly impeached; and it has been also decided, that monies voluntarily paid on an award, cannot be recovered back, while it shall remain, and not set aside in a regular manner, as in the case of a judgment of court. 13. Submission of all matters pending in court. The award was, 1, that all suits between the parties cease; 2, that the deft. pay the plt. £10 in full of all demands, and give VOL. I. 19 a 6 Mod. 33, Squire v. Trevitt.-2 961.-1. Salk. Ld. Raym. 74. 142 Сн. 2. REMEDIES BY THE ACTS OF THE PARTIES. release from the beginning of the world to the time of the NOTES. The THE penal part of an arbitration bond is in common form. The following condition is in the case of arbitration and umpire both; if no umpire, the first part applies. The condition of this obligation is-Whereas certain differences have arisen between the parties, and they have agreed to submit the same, and all disputes, trespasses, and demands between them, to the award and determination of A, B, and C, or the major part of them. Now if the said O shall abide by, keep, and perform the said award and determination of the said arbitrators, or the major part of them, upon the premises, provided their said award be ready to be given in, in writing on or before But if the said arbitrators do not make such award of and concerning the premises, by the time aforesaid, then if the said O on his part shall, in all things, well and truly abide by, keep, and perform the award, arbitrament, and umpirage of D, umpire indifferently chosen between the parties, to end the said matters and differences; so as the said umpire do make his award and umpirage of and concerning the premises, and deliver the same in writing under his hand and seal to the said parties, on or before, then this obligation to be void, else to remain in full force. Signed, sealed, &c. The substance of an award or umpirage is in this form-generally best to be written on the rule, &c. or submission: We [referees] or I [umpire] [as the case may be,] within named, having notified, met, and heard the said parties, their obligations, and evidence, do award, order, and adjudge, that the said his executors or administrators, shall pay or cause to be paid to said his executors or administrators, the sum of that on the payment thereof the said and said charges make to each other a general release of all of action, bonds, &c. and demands from instead of releases may be to pay in full, &c. to on or before- and shall at their proper matters, actions, causes or the conclusion Сн. 3. CHAPTER III. OF ACTIONS GENERALLY. action. See ART. 1. Action what. § 1. “An action is a lawful demand of 3 Bl. Com. one's right." Actio est prosequendi quod sibi debetur in judicio. 116.-Co. L. The word action is sometimes used in a more limited sense, What is the 284, 289. as when it is said, that a suit till judgment is regularly called commencean action, but not after; nor is a writ of error an action, but ment of the only a commission to the judges to examine errors; sometimes Ch. 29, a. 7. in a more extensive sense, as when it is said a scire facias, or Cowp. 382.-any writ by which the plt. may recover, is an action. When 265.-3 Salk. the remedy is gone, the right is gone. A qui tam action or 5-12 Mod., debt for a penalty, is a civil action-a mere party suit. 1 Bac. Abr. 143.-6 Mod. 34. 1 Gil. L. Evid. See 228. But an action does not include an information, nor the term party, the king; nor, a fortiori, the state. All law terminates in actions or prosecutions. 2. Actions are, 1, personal; 2, real; and 3, mixed. Personal actions are founded on contracts or torts. By perpersonal actions a man demands a debt, or damages in lieu thereof; or damages for some injury to his property, person, or reputation. By real actions the demandant demands real property only, as lands, or rights issuing out of lands. By mixed actions the plt. demands real property; also personal 3 Bl. Com. damages for any wrong sustained, as in waste in England, and in several of the United States, the part of the inheritance wasted, also treble damages. 117, 118. 28. § 3. Personal actions are ex contractu and ex delicto. The 1 Bac. Abr. last are on force or fraud. Every real action is possessory; that is, of the demandant's own possession or seisin; or ancestrel, that is, of the seisin or possession of the demandant's ancestor. Ancestrel actions are two fold. 1. Where only a bare right descends. 2. Where the ancestor died seised, and 6 Co. 4, 5. the land descends, and one intrudes into the land after it descends. 4. Though in allowing a party to choose his kind of action, the law regards substance more than form: yet the plt. Jennings . cannot convert an action founded on a contract into a tort, so R. 335. Randall, 8 T. as to affect the principles of the case to the deft's. disadvantage; as to charge an infant, for instance, for a tort, where he Real actions made a contract; as where he contracts to hire a horse to ride, what, 2 T. and he rides him immoderately; but the plt. may waive a tort, and go only for the value of the thing taken by the deft., for this is for his advantage. As to the numerous sorts of actions the principles &c. of them in detail, see other chapters. R. 700. Сн. 3. Co. L. 128.Imp. M. P. 46, 47.--Coo per's Pl. 24, 243-246, Harden . Fisher.-1 Wheat. R. 300. Calvin's case, Cro. Jam. 539.-Cooper's Pl. 24, 27, 246, 248. -9 Johns. R. 303.-Troup 2. Mullender. 214, 217. Gardiner's case.-Flu cher's case, R. 453-465.- Palmer's Nov. 1801. 1 Mass. R. ART. 2. Who may be plt. in our courts, and maintain actions. 1. As on general principles, every person has a right to legal security in regard to his property, person, and reputation, he may be a plt., or a competent person to prosecute, unless under some legal disability. These are; 1, persons outlawed, being in their own right, but if they sue in auter droit, as executor, administrator, and officer in a corporation, &c., they are not disabled, for those they represent, and whose rights are the objects of the suit, are entitled to their law. 2. Aliens. They cannot bring a real or mixed action generally; for aliens cannot have or hold real estate in the 7 Co. 1-56 & United States, except certain British subjects, who held real estate here when independence was declared, [July 4, 1776,] and who continue to hold the same; as the separation of the two countries did not divest estates previously vested, but only created in one become an alien, an inability to take any real estate afterwards. Hence, and on the principles of Calvin's --7 Johns. R. case, those British subjects who on this separation became aliens, and then held real estates in the United States, and still own them, may sue for and recover them, if disseised, and in the Federal courts, by the provisions of the Federal Constitualso 4 Wheat. tion; and on the death of such a subject, so seised of real estate here, it descends to his next akin, being citizens. case, Essex Hence, when Dr. Gardiner so become an absentee and alien, and died in 1786, seised of such estate on the river Kennebec, 256, Sheaff. his devisees, in July 1799, in the county of Lincoln recoverO'Niel, also 1 ed; and it is the settled legal opinion, that his children alone, --1 John. Ca. who are citizens, inherit his undevised estate in Massachusetts; and that such of his children as became aliens on this separation are wholly excluded. So as to the estate and children of Mr. Fleucher, and other such aliens. And a citizen may recover a share in the estate of a citizen deceased, though the demandant claim through an alien, and this on the British Statute of the 11 and 12 of Wm. III. adopted here. See construction Folliot v. Ogden, 1 H. Bl. 123–136, parties become aliens. of, 4 Wheat. R. 453, Orr v. 3. It has been decided in Massachusetts, that an alien Hodgson can purchase and hold real estate, till office found, that he can essential, and grant the same, and his grantee can maintain an action to this article recover it, and may declare on his own seisin in fee. One includes only born in N. Jersey before 1775, and joined the British in 1777, jects and cit- and has ever since adhered to them as a British subject, is not an alien. Bos. & P. 48. 401.-4 Cranch 209, M'Ilvaine r. Coxe, 321, 323. See Ch. 131, as to estates by aliens- Seisin not British sub izens of the U. States, and confined to Englishmen and Americans. § 4. By the ninth article of the treaty between the United States and Great Britain, made Nov. 1794, "it is agreed, that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands the treaty of in the diminions of his majesty, shall continue to hold them, See 6 art. of |