School District No. 3 v. Aldrich

13 N.H. 139

• Court: Superior Court of New Hampshire
• Decided: July 15, 1842
• Status: Published

Opinion

Parker, C. J.

A plea that there is no such corporation in existence as the plaintiffs, is in bar. 6 N. H. Rep. 198, School Dist. vs. Blaisdell. The matter may, therefore, be given in evidence here, under a brief statement.

The limits of this district appear to be indefinite. On the plaintiffs’ showing it begins at Henry Ingalls’, extends up the road to the town line, and westerly to Lyman ; and easterly so as to include all persons west of the south branch; and down the river so as to take in Abner Aldrich and David Dailey. According to the defendant’s evidence, it includes Abner Aldrich, and then runs an east and west course to the line of Lyman, and easterly to the east school district.

Neither of these descriptions specify what land is included. Probably the farms of these individuals were intended, but it is not so said, even if that might be sufficient.

There is, therefore, no evidence that the district has been legally constituted, according to the statute. A division of a town into school districts must be a territorial division, and not one merely by a designation of the inhabitants or householders. Hale vs. Coolidge & a., Cheshire, July T., 1833.

But this point is not necessary to the decision of this case.

The submission of the matters in dispute between the parties authorized the arbitrators to include the costs of the suit then pending in their award. But there is no pretence that they did so, unless they were included in the sum of $5.17. They awarded a definite sum.

The costs of the suit, which had previously been made, did not follow this award. It was a mere submission to arbitration, in which the plaintiffs could have no more than the arbitrators awarded. There was nothing incident to that, for the submission did not contemplate that judgment should be rendered in the suit.

The declaration of one of the arbitrators that costs followed, was not an award. If all had said so, it would not have been an award, but a mistake. The award had been made previously.

There would have been no certainty, if they had awarded costs, unless they specified the amount, or provided a mode by which it was to be ascertained, for there was no tribunal to tax them. The suit was ended by the submission and award.

But it is sufficient for this case that a declaration by one arbitrator, in the presence of the others, after an award made and published, that costs followed it, cannot be considered an award of costs.

The action, therefore, fails, being founded upon an award and a promise to pay a sum awarded; and for this reason the other questions raised in the argument, respecting the legal validity of the defendant’s promise, are immaterial. The evidence seems to show that the submission was between the plaintiffs and the defendant.

Verdict set aside,