Sellick & Sellick v. Addams

15 Johns. 197

• Court: New York Supreme Court
• Decided: May 15, 1818
• Status: Published

Opinion

Per Curiam.

This is an action of trespass quart clausum fregit; and the plaintiff’s right to recover is fully established, unless the alleged trespass was justified by the award which was set up on the part of the defendant. By the award, the locus in quo is considered as belonging to the defendant. Two objections have been made to this award: 1st. That it is not warranted by the submission ; 2d. That it never was delivered to the parties.

The submission does not specify any particular matters submitted, nor does it mention any existing differences relative to lands; but is a general submission of all actions, and causes of actions, and of all quarrels, controversies, trespasses, damages, and demands whatsoever. In the case of Munro v. Allaire, (2 Caines’ Rep. 327.) it is said by this court, that questions concerning real property may be submitted without being specially named; that a submission of all demands includes questions concerning real as well as personal property; that the law does not require a specific submission as to one kind of property more than as to another; and the case of Marks v. Marriot, (1 Lord Raym. 114.) is referred to and relied on as supporting this doctrine.

2. A delivery of the award must be deemed to have been dispensed with. It was made within the time limited by the submission, and was retained by one of the arbitrators, and sworn copies were delivered to the parties respectively. This would not have been sufficient had an original been claimed; but the copy, according to the best recollection and belief of the witness, was delivered to each party before the expiration of the time limited in the submission. An acceptance of a sworn copy, without objection, must be deemed a waiver of any claim to have the original. This award would, undoubtedly, have been sufficient to enable the defendant to have recovered in an action of ejectment, according to the doctrine of this court. (Jackson, ex dem. Stanton, v. De Long, 9 Johns. Rep. 43.)

(a). It must, thérefore, be considered as giving to the defendant a right of entry, and a license to enter, and is, of course, sufficient to justify the entry, and cutting of the timber. The pleadings are not before us; and we presume that they are sufficient to let in this defence, if at all admissible. The defendant is, accordingly, entitled to judgment.

Judgment for the defendant.

In Doe, d. Morris and others, v. Rosser, (3 East's Rep. 15.) the court say that ah award cannot have the effect of conveying the land, although they held that it concluded the defendant from disputing the lessor’s title. In Calhoun's lessee v. Dunning, (4 Dallas' Rep. 122.) the court say, “ an award cannot give a right to land; but a report of referees will settle a dispute about land, either in an ejectment, or in an action of trespass.” See also, Jackson, d. Nellis, v. Dysling, (2 Caines' Rep. 198.) But an award making partition between tenants in common, without directing conveyances to be executed, was held void. (Johnson v. Wilson, Willes' Rep. 248.) And where a stack of hay was awarded to be delivered to the plaintiff, it was held that no property was transferred by the award, and, therefore, he could not maintain trover for it, but that his remedy was on the award. (Hunter v. Rice, 15 East's Rep. 100.