Blanchard v. Murray

15 Vt. 548 | Vt. | 1843

The opinion of the court was delivered by

Williams, Ch. J.

It is correctly stated and admitted by the counsel in this case, that many objections to a declaration, which would be fatal on a general demurrer, as well as those of which the defendant could avail himself on special" demurrer, are cured by a verdict. In the present case, it is not necessary to advert to those cases where this principle is acknowledged, as the objections to this declaration would not have been fatal, on general demurrer.

The declaration is assumpsit on a submission to, and award by, arbitrators. The first count sets forth a written submission to three arbitrators, and in case either of them could not be obtained, a fourth was agreed on ; that, at the meeting, all four attended, and by agreement of parties, the four heard the case, and, in pursuance of the written submission, and the agreement, made the award declared on. We see nothing irregular or illegal in this proceeding on the part of the arbitrators or parties, which should vitiate their award ; and the declaration which counts upon this agreement, does not appear to us to be inconsistent, improbable, or untrue, as averred in the argument. Nor is it necessary, in declaring on an award, to set forth the whole. It is sufficient to set forth that part on which the party relies, and to say that, among other things, they made this award. This form appears to be according to established precedents. It is no objection to this award that they awarded to the plaintiff the possession of land. The controversy submitted, was an action of ejectment; and a controversy as to seizin and possession may as well be the subject of arbitration, as any other controversy, whatever doubt may be suggested, as to submitting a question of title to arbitrament. The objections as to setting forth the date of the writing, and, also, as to the time of making the award, have not been relied on in argument.

The second count is upon the same award and submission, with this difference, the submission is not stated to be in writing, but declared on as a submission to four, — and upon that part of the award, only, which relates to the damages and cost, and the arbitrators’ fees.

Whether the plaintiff could have recovered on this declaration, for the arbitrators’ fees, without an averment that he paid them, or whether he did, in fact, recover for them, are questions which do not arise on the motion in arrest. It' is certain he could not have recovered without proof that he had paid them. The declaration, however, cannot, after a verdict, be adjudged insufficient for want of this averment. The judgment of the county court is, therefore, affirmed.