The opinion of the Court was delivered by
Phelps, J.
This case comes before us on demurrer, and upon a state of pleadings somewhat complicated, especially as the replication contains a recital of the pleadings in a former action between these parties. As the demurrer was intended to draw in question the effect of all the proceedings in the former suit, as well as in this, it may conduce to a more correct understanding of the questions raised by the pleadings, to arrange the case in the order of time in which the various questions arose.
The plaintiff, it appears, recovered a judgement against the defendant,at the March term of Chittenden county court, A.D. 1826, for the sum in all of $181,58. But it further appears, that this judgement was entered by mutual consent, and subject to the award of arbitrators, upon certain claims pleaded in offset by the defendant. The arbitrators failed to make any award in the matter, and without any such award, the plaintiff, at the Marcli term of said court, A. D. 1828, brought his action of debt on said judgement. The defendant defended the action, and pleaded, in substance, that the judgement was rendered upon the condition above stated, and that he was ready and willing to proceed with the arbitration, but that the plaintiff refused to proceed with it. The plaintiff replied, admitting the agreement, but denying that the defendant was ready or willing to proceed with the arbitration, and alleged that he refused to do so, although requested. Upon this, issue was joined, and found for the defendant, and judgement Wfts rendered accordingly.
Subsequently to this, viz. at the March term of said court, A. D. 1830, this suit was brought by the plaintiff, being a second action of debt upon the same judgement. The defendant now pleads in bar the judgement in the former action ; and the plaintiff, in avoidance of that plea, replies, setting forth the pleadings in that suit, as shewing the grounds on which that decision was had, and avers an offer on his part to the defendant to submit the subject of the set off to the arbitrators named, and a refusal on the part of [359]*359the defendant so to do. To this replication, the defendant demurs, and, upon these pleadings, the question arises as to the sufficiency of the plea, in the first ¡dace, and secondly, as to the sufficiency of the replication.
The objection to the plea, in the present instance, is, that it does not, on the face of it, show a judgement which is to be regarded as a judgement on the merits of the claim, and, of course, a bar to the present action.
- The plea states, the bringing of the previous suit by the plaintiff, for the same cause of action, and that “ such proceedings were had, that said court rendered judgement, that the said Luther from having and maintaining his suit ought to be barred, and that the said Joseph recover his costs.”
It is contended, that a judgement in these terms is not a bar to a future proceeding, for the same cause of action — that the term “ bar” or “ barred” is not a technical word, except as a generic term designating a certain kind of pleas — that it is not adopted, in the precedents of pleading, nor is it the appropriate language of a record. It is admitted, however, that this is the usual form in our courts of entering a judgement for the defendant, upon a plea in bar. If this admission be correct, it becomes a very serious en-quiry, whether it be or be not a proper mode of entering judgement in such case, and whether, through the unskilfulness or inaccuracy of the ministers of justice, the proceedings of our courts of justice, for a period which may, and probably does, extend to the very organization of those courts, are to be regarded as having lost their appropriate decisive and conclusive character. Very strong reasons certainly are required to justify a decision, which proceeding upon technical or formal grounds merely, would serve to break the seals, which, through immense labour and expense, have been placed upon a formidable mass of litigation.
In designating the appropriate language for a record of judicial proceedings, we know of no better rule, than that it should be expressed in clear, intelligible, and definite language. These qualities may be derived from the common acceptation of words in common parlance, or from a precise technical import affixed to them as terms of art. The term bar or barred, whether we consider it asa mere technical term or not, has, when used in its legal sense, a meaning, not only comprehensive and definite, but one which with professional men, as well as elsewhere, is distinctly apprehended. It implies an insuperable obstacle — an answer to a claim, satisfactory and conclusive. The use of the [360]*360fern) bar, as designating pleas to the merits of the action, renders it peculiarly proper as expressing the decision of a court, had uPon mei’ks,and intended as a final determination of the contro-versy- Its introduction, under these circumstances, gives a meaning to the language of a decision, which it might not otherwise have. It is used with reference to its settled technical import, and as excluding the supposition of any evasion of the merits of the controversy.
It is said that the established form of such a judgement, as given in the books of precedents, is, “ That the plaintiff take nothing by his bill.” This is indeed the usual form in many courts. But this phraseology, aside of any artificial import attached to it in consequence of its use in this particular, is not inconsistent, with the supposition of an abatement, nonsuit, or demurrer. It does not, ex vi termini, negative either ; whereas, the term barred, taken in its settled and well known signification, negatives all. If, therefore, a distinction be taken between the two modes of expression, the one adopted in our courts is the most significant and the least equivocal.
It is further remarkable, that the ingenious counsel, who disapproved its use, being unable to discover in it any improper or equivocal import, are driven to condemn it as unmeaning and insensible, and this for no better reason, than that some elementary writers have substituted for it pbrasology less explicit and unequivocal.
It is further objected, that the plea does not shew, that the parties were by the judgement put out of court. If we are right in supposing that the plea sets forth a judgement on the merits, there is no ground for this objection. The plea further states, that judgement was also, that defendant recover his costs. This part of the judgement negatives the supposition that there were other issues to be disposed of. A judgement that the plaintiff is barred, and that defendant recover his costs, seems to dispose of the case, and the parties are necessarily out of court. We are therefore ol opinion, that the defendant’s plea is sufficient.
The next subject of enquiry is,the sufficiency of the replication. This professes to set forth the pleadings in the former case, with the view of shewing, that the defence there urged was not a permanent bar, but of a temporary nature ; and proceeds to aver a readiness, on the part of the plaintiff, to proceed with the arbitration as a reason, why the defence relied upon on the former occasion is no longer available.
[361]*361It may be remarked here, that it is the effect of the judgement, and not its correctness, which we are called upon to consider.
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The opinion of the Court was delivered by
Phelps, J.
This case comes before us on demurrer, and upon a state of pleadings somewhat complicated, especially as the replication contains a recital of the pleadings in a former action between these parties. As the demurrer was intended to draw in question the effect of all the proceedings in the former suit, as well as in this, it may conduce to a more correct understanding of the questions raised by the pleadings, to arrange the case in the order of time in which the various questions arose.
The plaintiff, it appears, recovered a judgement against the defendant,at the March term of Chittenden county court, A.D. 1826, for the sum in all of $181,58. But it further appears, that this judgement was entered by mutual consent, and subject to the award of arbitrators, upon certain claims pleaded in offset by the defendant. The arbitrators failed to make any award in the matter, and without any such award, the plaintiff, at the Marcli term of said court, A. D. 1828, brought his action of debt on said judgement. The defendant defended the action, and pleaded, in substance, that the judgement was rendered upon the condition above stated, and that he was ready and willing to proceed with the arbitration, but that the plaintiff refused to proceed with it. The plaintiff replied, admitting the agreement, but denying that the defendant was ready or willing to proceed with the arbitration, and alleged that he refused to do so, although requested. Upon this, issue was joined, and found for the defendant, and judgement Wfts rendered accordingly.
Subsequently to this, viz. at the March term of said court, A. D. 1830, this suit was brought by the plaintiff, being a second action of debt upon the same judgement. The defendant now pleads in bar the judgement in the former action ; and the plaintiff, in avoidance of that plea, replies, setting forth the pleadings in that suit, as shewing the grounds on which that decision was had, and avers an offer on his part to the defendant to submit the subject of the set off to the arbitrators named, and a refusal on the part of [359]*359the defendant so to do. To this replication, the defendant demurs, and, upon these pleadings, the question arises as to the sufficiency of the plea, in the first ¡dace, and secondly, as to the sufficiency of the replication.
The objection to the plea, in the present instance, is, that it does not, on the face of it, show a judgement which is to be regarded as a judgement on the merits of the claim, and, of course, a bar to the present action.
- The plea states, the bringing of the previous suit by the plaintiff, for the same cause of action, and that “ such proceedings were had, that said court rendered judgement, that the said Luther from having and maintaining his suit ought to be barred, and that the said Joseph recover his costs.”
It is contended, that a judgement in these terms is not a bar to a future proceeding, for the same cause of action — that the term “ bar” or “ barred” is not a technical word, except as a generic term designating a certain kind of pleas — that it is not adopted, in the precedents of pleading, nor is it the appropriate language of a record. It is admitted, however, that this is the usual form in our courts of entering a judgement for the defendant, upon a plea in bar. If this admission be correct, it becomes a very serious en-quiry, whether it be or be not a proper mode of entering judgement in such case, and whether, through the unskilfulness or inaccuracy of the ministers of justice, the proceedings of our courts of justice, for a period which may, and probably does, extend to the very organization of those courts, are to be regarded as having lost their appropriate decisive and conclusive character. Very strong reasons certainly are required to justify a decision, which proceeding upon technical or formal grounds merely, would serve to break the seals, which, through immense labour and expense, have been placed upon a formidable mass of litigation.
In designating the appropriate language for a record of judicial proceedings, we know of no better rule, than that it should be expressed in clear, intelligible, and definite language. These qualities may be derived from the common acceptation of words in common parlance, or from a precise technical import affixed to them as terms of art. The term bar or barred, whether we consider it asa mere technical term or not, has, when used in its legal sense, a meaning, not only comprehensive and definite, but one which with professional men, as well as elsewhere, is distinctly apprehended. It implies an insuperable obstacle — an answer to a claim, satisfactory and conclusive. The use of the [360]*360fern) bar, as designating pleas to the merits of the action, renders it peculiarly proper as expressing the decision of a court, had uPon mei’ks,and intended as a final determination of the contro-versy- Its introduction, under these circumstances, gives a meaning to the language of a decision, which it might not otherwise have. It is used with reference to its settled technical import, and as excluding the supposition of any evasion of the merits of the controversy.
It is said that the established form of such a judgement, as given in the books of precedents, is, “ That the plaintiff take nothing by his bill.” This is indeed the usual form in many courts. But this phraseology, aside of any artificial import attached to it in consequence of its use in this particular, is not inconsistent, with the supposition of an abatement, nonsuit, or demurrer. It does not, ex vi termini, negative either ; whereas, the term barred, taken in its settled and well known signification, negatives all. If, therefore, a distinction be taken between the two modes of expression, the one adopted in our courts is the most significant and the least equivocal.
It is further remarkable, that the ingenious counsel, who disapproved its use, being unable to discover in it any improper or equivocal import, are driven to condemn it as unmeaning and insensible, and this for no better reason, than that some elementary writers have substituted for it pbrasology less explicit and unequivocal.
It is further objected, that the plea does not shew, that the parties were by the judgement put out of court. If we are right in supposing that the plea sets forth a judgement on the merits, there is no ground for this objection. The plea further states, that judgement was also, that defendant recover his costs. This part of the judgement negatives the supposition that there were other issues to be disposed of. A judgement that the plaintiff is barred, and that defendant recover his costs, seems to dispose of the case, and the parties are necessarily out of court. We are therefore ol opinion, that the defendant’s plea is sufficient.
The next subject of enquiry is,the sufficiency of the replication. This professes to set forth the pleadings in the former case, with the view of shewing, that the defence there urged was not a permanent bar, but of a temporary nature ; and proceeds to aver a readiness, on the part of the plaintiff, to proceed with the arbitration as a reason, why the defence relied upon on the former occasion is no longer available.
[361]*361It may be remarked here, that it is the effect of the judgement, and not its correctness, which we are called upon to consider. Whether an agreement, like that set forth in the plea to that action, relating to matters not necessarily involved in the .plaintiff’s action, contemplating an endorsement on the judgement, and not a modification of it by the act of the Court, and .not entered-of record, but resting in pais between the parties, is to be considered as affecting the absolute character of the original judgement, is a question then acted upon, and which is not now open for discussion. But the question now is, whether the defence then 'relied on is to be considered as temporary in its character, and whether the replication shews any thing.to have occurred since to remove that defence. That there may he a temporary bar seems to follow from the doctrine laid down in some of the books, that some defences, which are temporary in their character, as that the plaintiff is an alien enemy, may be pleaded in bar. Why a ,plpa, which goes merely to the temporary disability of the plaintiff, .-should have been regarded as a pro.perplea in bar, is not easy to he explained. It is sufficient that it is so, and the necessary infer-■once is, that the defence can be made no longer than the .disability exists. Where such a defence is relied on, it is most obvious., that the defence must appear to exist at the time it is pleaded. -The onus probancli is undoubtedly on the defendant to show its continuance ; but ifjudgement is rendered for the defendant, and <the plaintiff brings a new action for the same cause, it is evident ihat the judgement changes the burden of proof, and the plaintifi must rebut-the effect'.of the judgement, by shewing the bar to have been .removed*
Admitting the defence to this claim to have been a temporary bar, the question arises, has it been -removed ?
There are two points of view, in which the agreement, connected with the original judgement in this case, may be regarded. The one is as a condition or qualification of that judgement, as-in the case of a judgement, with a reference to .arbitrators to ascertain -damages. In this case, the judgement is -not perfected nor complete, until their report is received and judgement perfected accordingly. If this is to be considered as that case, it follows, that •the judgement is not to be enforced by action of debt in any court. It remains as lis pendens in the court where =the proceeding is had, subject to the control of that court alone; -and the remedy •for the plaintiff, in case the hearing before arbitrators is prevented, -is to apply to that court to vacate both the judgement and ife© [362]*362reference, and proceed with his action. It is evident, that the proceeding, in such case, is not at an end ; that no other court can have jurisdiction', and that debt cannot of course be brought on the proceedings. In this point of view, it is apparent, that nothing short of perfecting the judgement would avail the plaintiff. The mere readiness to proceed with the hearing before arbitrators is not sufficient. The replication, therefore, upon this supposition is insufficient.
The other point of view in which the ca-se may be regarded is-this. The originaFjudgement may be supposed to be absolute in its terms,, having no allusion to the subjeet of the arbitration, and the agreement between the parties to be a mere matter in pais, made with reference to a satisfaction of the judgement. In this point of view, it might be questionable, whether the agreement would operate to bar the plaintiff’s remedy on his judgement, any farther than it might suspend that remedy until the time limited fort the arbitrators to make their award had- expired. Were that question now open for discussion, it might perhaps be urged, that the breach of that agreement would not affect the validity of the judgement ybut that when the time limited'had expired, the plaintiff might have execution of his judgement, and the defendant would be'driven to-his- remedy for the breach of the agreement.. In accordance with this doctrine,, it might be further urged, that the- agreement created a mere temporary bar, existing so long,, and no longer, than the agreement continued in force. Certain it is however, that the willingness or readiness of either party, to perform, the agreement after that time, could not affect the validity of the judgement. Adopting-, for the sake of argument,, this, view of the subject* and: treating the agreement as a temporary bar, we are still forced to consider the bar as removed, when the agreement expired. That agreement expired on the first day of June, A. D. 1826, the time limited for the arbitrators to make their award. At that period, their power ceased, and the sub-, mission was at an end. Subsequent to this, to wit,, at March term, 1.828, the plaintiff brought the second action,..and1 at August term,, 1829, the judgement was rendered which is relied upon by the defendant as a defence in this suit. That judgement-was, at all events, conclusive of the controversy, as.it then stood : it still remains in full.force, and-with all its incidents. It is not competent for us to revise or reverse it; nor can we avoid its conclusive effect upon-the plaintiff’s claim. If the plaintiff’s argument be correct, the-former judgement was wrong ; but if so, it cannot now be remedied,. [363]*363Nor is the case altered by the subsequent offer, on the part of the plaintiff, to submit anew the matters in controversy,agreeably to the former agreement. That agreement was at an end, and, as is to be inferred from the pleadings, by the plaintiffs own act; and no subsequent proffer of his could revive it, or affect either of the former judgements. That being the case, the replication shows nothing material to have occurred, since the rendition of the former judgement; and the result is, that the replication is insufficient, and
Judgement must be for the defendant.