Burns v. Hindman

7 Ala. 531 | Ala. | 1845

ORMOND, J.

— There is a distinction as to a matter of de-fence arising after the issue joined, and such matter when it arises pending the suit, but before issue joined. In the former case it must be pleaded puis darrein continuance; in the latter it is a plea in bar to the further maintenance of the suit, and may be pleaded with other pleas iu bar, whilst the former is a waiver of all previous pleas. [Sadler v. Fisher, 3 Ala. Rep. 200.] From this it appears, that the testimony of the submission and award were properly admitted under the general issue. But if this were not so, we think the agreement of the parties broad enough to admit the evidence, if only admissible under a plea oí puis darrein continuance.

We are now to consider the effect of this submission, and award. It is contended by the plaintiff’s counsel, that this controversy was not submitted to the arbitrators, because the suit then spoken of, is said to be an action for false imprisonment, and that this is an action on the case, for the malicious use of process; and that although all matters in difference between the parties, was submitted to the decision of the arbitrators, it will not include this action, which is not specifically named or described.

The submission recites, that the parties had an interview, and had agreed upon an amicable settlement of a suit, which Burns was about to institute against Hindman, for false imprisonment — that the suit was to be dismissed, and all matters of difference between the parties, of every description, up to that date, were to be left to the arbitrament of two persons, who are named. We think it cannot well be doubted, that this is the action spoken of in the submission, as an action for false imprisonment. It is an action on the case, for maliciously arresting the body of the plaintiff, upon a ca. sa. and certainly this might well be considered by the parties as an action for false imprisonment. The writ, too, bears the same date with the submission, and until the presumption is repelled by contrary proof, the inference is irresistible, that this is the action referred to in the submission.

But whether it is, or is not, the same action there referred to, the result is the same. If it was the same action, then, as one of the conditions of the submission, it was to be dismissed; if it was not the same, it was certainly a matter of difference between the parties, as the writ was sued out the same day, and by the express decision of the arbitrators, was to be dismissed by the plaintiff; so that any possible construction of the submission would lead to the same result. We think, however, that it would be most unreasonable to suppose, that this is not the action which the plaintiff, upon going into the submission, agreed to dismiss. See the case of Gray v. Gwennap, 1 Barn. & Ald. 106.

There is nothing in the objection that the award is conditional, and that the defendant cannot have the benefit of it, without showing that he had performed it. An award may certainly be conditional, and to entitle the party to the benefit of it, he may be compelled to show that he has performed, or offered to perform, the condition ; but this award is not of that character. It does not award any thing to either party, but discharges each from all demands of the other, and dismisses all suits. It is, then, conclusive of those matters, in favor of, and against each; and if the defendant had any suit pending, against the plaintiff, at the time of the award, which does not appear, either from the submission, award, or by evidence aliunde, the award is conclusive in favor of the plaintiff to procure their dismissal.

Let the judgment be affirmed.