2 N.H. 126 | Superior Court of New Hampshire | 1819
pro curia. Some of these prolix pleadings could well have been spared, and some of them are not characterized by much technical precision.
But the real questions in issue can probably be decypher-ed. As to the first plea, though a verdict upon it has been found for the plaintiffs, yet the defendant may still he entitled to judgment upon the whole case. - For the verdict finds only, that the defendant executed the bond ; but if from the other pleadings, it appears that the condition of the bond has not been broken, or if broken, has been adjusted, the plaintiffs ought not to recover. As to the second and fourth pleas, they may be considered as admitting a breach of the condition of the bond ; but they answer it, by averring that the parties afterwards, through referees, settled not only the damages which had then accrued, but all which might ever afterwards happen to accrue.
If the plaintiffs supposed, that the referees exceeded their authority, they should have demurred to this plea; but instead of that, they reply, and without denying the above averment, merely allege, that the damages now claimed arose after the award of the referees. This is the first fault in these pleadings ; because the averment ought either to have been traversed or demurred to. The rejoinder, therefore, however incoherent, is no bar to judgment for the defendant, if his plea is in law sufficient. Its sufficiency depends upon the single question, whether, under the submission of “ all demands,” the referees could consider and award not only on the damages already accrued upon the bond, but also on such damages as would probably afterwards accrue.
If, under all these circumstances, the referees could legally award upon the whole bond, the plea is sufficient; because, according to the averment, the whole bond was in fact adjudicated on by them, and the anticipated as well as actual damages included in the award ; and no principle Is better settled, than that a subject matter, which has once duly proceeded to judgment, shall not be re-examined by the same parties, except on review, new trial or appeal.(l) In addi-tioh to the authorities there cited, Vide 1 Wheaton 7.—4 do, 215, and Holden vs. Curtis, ante.
We consider it as well settled, also, that when a declaration or submission is general, any subject matter, which comes
I~Iere as the submission was general, it was proper to aver what was actually considered by the referees ; and as the whole bond might well enough come within the scope of the suhmi~sion, the referees did not err in awarding upon the whole of it.
The expression, " all demands," is wry comprehensive. The bond was not only an indernuky for the bills received and paid at the time of the submission, but those still out. standing. It might, therefore, be deemed an existing claim or" demand" against the dvfendant, in respect to all ol them. It might be deemed an existing "demand" as t all of them in another view; because the execution and force of it were completed, and the subsequent redemption of bills might be regarded as only events upon which payments would become due.(2) Nor would there be much difficuky In estimating the full value of the bond, or, in other words, the quantity of bills outstanding at the time of the submission, which might probably be afterwards offered for redemption. The books of the Bank would show the amount unredeemed; and those, experienced in banking concerns, would be able to calcuiste, with considerable accuracy, the proportion of that amount, which from negligence and accidents might never be presented for payment.
On the contrary, the word "demand" is sometimes a~ limited in its rn~'a fling, as the word "debt;" and often extends to nothing but. what is then due, or owing either on account of some wrong or some contract, 6 Mod. 232, Knight vs. Burton,-1 Barn, and Ald. 491, Overseers of St. M. vs. Warren.
Under this ambiguity, the parties themselves could best judge of their own intentions, By their advice, or guided
If the averment in the plea, however, be not correct on this point, we will permit the plaintiffs on terms to amend their replications, and form an issue which will settle the action on its merits, A different question is presented by the demurrer to the replication to the third plea in bar.
The breach alleged is only a general one of neglect to pay a gross amount of bills redeemed since the last settlement. But no persons are named of whom any one bill was received ; no particular time when it was received ; nor the amount received at any one time of any individual. Some such specification might have been made without introducing useless prolixity ; and then the defendant, under full notice, could traverse and try the allegation. 2 Coke 4, a. Manser's case.—1 Saund. 58, b. ante.—Burr. 772.— 1 Chitt. Pl. 556.
An issue on such a point would settle the question of the forfeiture of the bond ; and in a subsequent hearing in chancery, the plaintiffs, if successful on the issue, would be allowed in damages the full amount of all the bills redeemed.
On the whole pleadings, therefore, the defendant is entitled to judgment.
