West v. Stigar

Observations op D. Durany on this case. (a.) On perusing the record, I am strongly of opinion that the judgment of the Provincial Court ought to be reversed, and that the practice affords no legal reason for maintaining it; but what may be the opinion of the Court of Appeals, I should be more confident in predicting, if the judges were lawyers by profession, than I am on the consideration that they are not. Before the 9th and 10th Win. III. there were at law, submissions by rules of Court, and an award being made thereon, the same process issued, as in . the other cases of breach of rule, id est by attachment; but there never was a judgment given, except wliere there was the security of a verdict, which was frequently the practice, nor could there be such judgment on the foundation of an award. ²⁴⁹ It would be unnecessary to cite cases at law, in order to shew the method used, for compelling the observance of awards.

The preamble to the 9th and 10th Wm. III. having set it forth. The method by rule of Court, and there being no instance of a judgment being entered, merely on the foundation of an award, are the strongest proof, that it was deemed to be impracticable. The statute takes the method before pursued at law, as the substratum of its modifications.

It recites, that the person was liable to imprisonment; it would have recited too, that the estate was liable to be applied, had judgments ever been entered. What Littleton observes, sect. 108. on the statute of Merton, si párenles conquerantur, is more applicable to this case j for as the rule of Court was introduced, to avoid the vexations, and dilatory proceedings on bonds and awards, so would tb ‘ practice have obtained to enter judgments, if consistent with the office and duty of Judges. Perhaps it might be proper to suggest a legal reason, why such judgments never were entered, though it might be sufficiently inferred from the non-user, that a legal reason must have subsisted. The appointment, or commission of a Judge, being incommunicably personal, his duty or office cannot be performed by a substitute, which would be the case of a judgment, were it to be necessarily consequential to an award.

If it be said that a rule is in the nature of a judgment, it may be admitted, if the consequences are not carried too far. They are so far of the same nature, that they are both obligatory, as authoritative judicial acts, and there is a power to compel their observance : but they essentially vary in the qualities, and extent of their operation. Judgment once given, cannot in another form for error in law, be altered by two Judges who gave it, non patitur regression. The forms of judgments are technically, and precisely ascertained.

Rules may be altered at any time ; their terms are arbitrary and varying. Judgments are attended with notoriety, rules require actual notice. Judgments are permanent, affecting the person and estate, and the representatives of ²⁵⁰ both ; rules are transitory, and affect the person only, and - the process relative to each, differs with the qualities of each. But it appearing by the record, that the reference or submisssion, was in pursuance of the statute, the question comes to this; whether it is to be supported by any construction of it ?

By the statute the party refusing, &c. shall be subject to all the penalties of contemning a rule of the Court wherein he is a suitor, and the Court on motion, shall issue process accordingly. The party has to the last day of the next term after arbitration, &c. to complain of corruption oí undue practice. Nothing can be plainer, than that by the terms of the-statute, an award is to be enforced by process of contempt, and that too upon motion, not requisite for an execution or a judgment, and so are all the cases determined upon the statute, which are infinite, and not by ca. sa. fi. fa, extend, fac. elegit) the proce.ss which a judgment would justify. This is so clear, that it cannot be proved per notiora.

In the case of Webster and Bishop et al. Free. Chan. 223. it was settled on consultation with the judges, it being a matter in which all the Courts were concerned, that upon an award on submission by rule of Court, after the award had been established, and affidavits and attachments had issued, the party against whom the award was made, having died, all proceedings determined by the death of the party, and could not be revived or carried further. In this case, could a decree on judgment have passed without doubt on this great consultation, the propriety of it would have occurred, and could a judgment have passed at law, a decree would have passed in equity; it being plain from the view of the consultation, that the same principle in a matter which concerned all the Courts, was intended to be established both at law and in equity ; and if there is any difference between the Courts, a Court of Equity was more likely to dispense with the statute, than a Court of Law, as it ²⁵¹ does in many cases, and especially as a bill there is proper for carrying an award into specific execution. But, admitting that a judgment might, consistently with the statute, be entered on the foundation of an award, yet certainly not till the last day of the term after the award; for till then the party has time by the statute to object to the award.

The result is, after the form in which judgment has been entered, it cannot be set aside by the Judges who gave it: whatever, therefore, might be the corruption, or undue practice of the arbitrators, it appearing by the record, that judgment was entered at September term, the party has been deprived of the advantage expressly given him by the statute, and therefore the judgment cannot be agreeable to, or supported by it, in the manner in which it has been given. Authorities having sometimes more weight than legal reasoning, perhaps the following case may not be inapposite : A defendant entitled to an imparlance, is denied it by the Court, this is error; for the law allowing time to make defence, the depriving the defendants of this privilege, is an act against law, and erroneous; whether the defence would be eifecual or not, or whether any would be made, cannot be considered: so, in the present case, time is given by the statute to the last day of the next term, and the judgment was rendered the term before, and therefore the judgment in the manner was against the statute. In the case of The King v. Murray, (the Pretender’s secretary,) there was time given in the act of attainder for the rebels to surrender by a certain day prefixed, and take their trial. He was apprehended by some of the King’s troops before the day; but was allowed to have the benefit of a voluntary surrender; for he was not to be deprived of the time given by the act, though there was reason to infer, from many circumstances, his intention of escaping beyond sea.

I do not know that this case is in any printed book, unless taken notice of in Lord Lovett’s case. Supposing that a judgment might be given upon the award, and that too without waiting till the last day of the ²⁵² next term, yet a judgment ought not to be given before the award. It appears by the record, that the judgment was rendered on the 10th of September, that being September term, and the award was given the 26th September, 1765. The record is to be taken pro vertíate, and nothing contrary to it can be alleged; the award, therefore, of the 26ih September, can be no foundation for the judgment of the 10th; then the judgment must be taken to have been given on the declaration and plea; but these afford no foundation for its support.

Suppose the date of the award to be rejected, though the date is part of it, in order for the intendment that the award was subsequent to the submission, and prior to the judgment, then upon the matter, the case will turn out to be, that the submission was made on the 10th, the award on the 10th, and the judgment on the 10th. Can such a snapping judgment be agreeable to the statute, which gives time for objection ? If this exception is to be answered by the Court of Appeals taking notice of the practice below, the state of that practice will prove the extreme illegality of it. ' Reference is made in a term. The cause is discontinued.

The award is made. The judgment is entered as of the term of the submission. The cause being out of Court, the judgment follows ministerially the award. Let the corruption, or undue practice, be never so flagrant, the party can have no relief, the matter can never come before the Court.

This is delegating the judicial power to the arbitrators, to all intents and purposes, and that too against the express words of the statute, by which an award is to be set aside for corruption or undue practice. Again: By the statute, the process on the award is merely in personam.; on the death of the party (as appears by the case in Chanc. Free.). all proceedings fall, but, upon such a judgment as the present, not only the person, but the estate real and personal, and the representatives of both would be liable. Further, a purchaser would be liable, for, put the case of a mesne purchaser between the submission and the award, and the ²⁵³ judgment being entered as of the day of the submission, the judgment would be a lien on the land on that day, and consequently overreach the purchaser.

But admitting, notwithstanding any thing yet offered, that no cause for reversing the judgment appears; yet surely there ought to be some premises in the record for justifying the judgment. The plea of non assumpsit, untried, even unanswered, cannot justify it. The award, or nothing, will justify; but for this to do it, the judgment ought to pursue the award. The award is, that the defendant pay to the plaintiff 215/. 17s. 6d. currency, to be released on the payment of 215/. 17s. 6d.

Pennsylvania currency. The species of money are different, their value different. It was for the advantage of the defendant to have the alternative, and the award gives it. But the judgment is absolute, and is against the person and estate of the defendant, against his heirs, executors and administrators, nay, against all intermediate purchasers, (if any are,) for 215/. 17s. 6d. current money of Maryland, for such does the term current money import.

Can it be said, that the judgment agrees with the award ? N. B. Should the judgment be reversed, the Court above can do nothing to enforce the award, (vide the statute,) it not being the Court in which the submission was agreed to be made a rule, nor do I see what the Provincial Court can do; for the cause is there discontinued in fact, and a time has also run beyond the limitation of the act of Assembly. Vide Co. Litt. 260. a. Records alterable during the term, but not after. 3 Salk. 168.