7 Wend. 241 | N.Y. Sup. Ct. | 1831
By the Court,
• The principal question in this case is whether the statute of limitations can be pleaded to an action of debt, upon the award of arbitrators.
The first count in the declaration states .that the submission was by bond, and that the award was under hands and seals of the arbitrators. The second count merely allegesthatthe parties submitted themselves to the arbitrament ofA.B. &C. (without saying whether it was by bond, or by par olj'ahd that thearbitrators made their awardin Writing, under their httiñds ünds’eals;büt
This court, in Pease v. Howard, 14 Johns. R. 480, say, that the statute of limitations is not a bar to every action of debt, but only to those brought for arrearages of rent, or founded upon any contract without specialty ; and it is observed that the settled construction of the statute is, that it applies solely to actions of debt, founded upon contracts in fact, as distinguished from those arising from construction of law. The action in that case was debt upon a judgment rendered by a justice of the peace, and the plea of the statute was overruled. Judge Van Ness, who delivered the opinion of the court, says: “ I conclude that an action of debt upon a justice’s judgment is not barred by the statute of limitations, 1st. Because, as such judgment is conclusive evidence of the debt, is a debt by specialty, and not by simple contract merely; and 2d. Because the action is not founded on a contract in fact, within the meaning of the statute, and actions of that description only are within its words, and not actions of debt, without specialty generally. Now
It is equally clear, from the same considerations, that it is no more a contract in fact, than is a judgment. It is the judgment or determination of a competent tribunal, upon the right of the parties, in relation to the matters submitted to it, and in ■ judgment or construction of law the parties are bound to carry into effect such determination ; and such duty or obligation may be enforced by action, in like manner as the duty to pay a judgment. It would seem to be immaterial, in'this view of the case, whether the award be under seal or not; its legal effect is the same in both cases ; it is a final and conclusive determination of the matters submitted, and it is that characteristic which constitutes it a specialty. On these ground, therefore, the statute is no bar, and the plea ts bad.
But there are other views of the case which lead to the same result. It has been held that an action of debt for arrearages of rent, reserved by indenture, and also debt for an escape of one in execution, are not wjthin the statute of limitations, 1 Saund. 37, 8, 9; 2 id. 64 ; Cochrane v. Welby, 2 Mod. 212 ; because they are not founded on contract in fact» and also, because they are founded remotely, though not immediately, the one upon the indenture, and the other upon the statute which gives the action, both of which are specialties. Our statute concerning sheriffs, 1 R L. 427, § 26, provides that no action shall be brought against any sheriff for an
The plea is to the whole declaration, and not to each count separately. The plaintiff, however, has treated it as a plea to each count, and has put in three distinct replications, each containing the same matter, and each concluding with a prayer for judgment, and by reason of the matters and things set forth in the first count, in the second count and in the third count. The third count is the common indebitatus counts for money lent and advanced, &c. work, labour and services performed» and goods sold and delivered ; to this count the plea of the statute of limitations is unquestionably good, and the replication does not aid the count. The replication treats the third count as though it were a count upon the award, and sets forth the submission and the award, and then avers that it was the same award set forth and stated in said third count, and prays judgment upon that count. Now the third count, as has already been remarked, makes no allusion whatever to any award or arbitration, and the replication is therefore a total departure from the count, and is bad on that ground. But the plea being to the whole declaration, and not to each count, and being bad as to two counts, the plaintiff is entitled to judgment generally, although the plea would have been good had it been put in to the third count only.