Armstrong v. Masten, 11 Johns. 189

Armstrong v. Masten

11 Johns. 189 | N.Y. Sup. Ct. | 1814

Per Curiam.

The submission and award is a bar to this action. There were some distinctions formerly made in the manner of pleading an award, with respect to the necessity of awarding a performance of the thing awarded. In the case of Freeman v. Barnard, (1 Ld. Raym. 247, 248.) Lord Holt said, where an award creates a new duty, instead of that which was in controversy, the party ■ has a remedy for it upon the award; .therefore, if a party resort to demand that which was referred and submitted, the arbitrament is a good bar against such action. Contra: where the award does not create a new duty, but only extinguishes the old duty by a release of the action.” This case is also reported in Salk. 69, and 12 Mod, 130. The, *191~i~tinction which formerly prevailed, was between the cased M verbal submissioii, and a sul~mission by bond. When the subs mission was by bond, the award always was considered a bar, even before performance; because the party had his remedy to enforce performance. But before it was settled that assumpsit' would lie upon mutual promises, it was held, when the submis~ sion was not by deed, that the party was bound, in pleading, to allege performance of the award. At this day, these distinc. tions no longer exist, and there is scarcely a case that can now arise, where it is requisite for the defendant, in pleading an award in bar of an action, to allege performance. This doc~ trine is settled, and illustrated in the cases already cited, and in the cases of Parsloe v. Bailey, (1 Salk. 76.) Allen v. Harris, (1 Ld. Raym. 122.) and Case v. Barber, (T. Raym. 450.)

Judgment for the defendant.