Martin v. Williams , 13 Johns. 264 ( 1816 )

Per Curiam.

Several exceptions have been- taken to the award; such as, that it is uncertain, not final, and requires the defendant to do impossible-acts, in obliging strangers to give up the possession of lands to the plaintiffs. ' •

It will not be necessary to discuss or consider, with gjeaf minuteness, several of the points insisted on. . If it be conceded that the award is void, so far as respects the defendant’s causing Webster and Wood tpr deliver up possession of the lands they held, on the ground - of uncertainty . in regard to the extent of their possessions, and o.n the ground.that the defendant is required to cause strangers to the award to do acts ; still it dofifi pot follow that the whole award is bad, or that the demurrer is wéll taken. It is a principle thoroughly settled, that if a declaration contain good and bad counts; and there is a general de? murrer to the whqíé, • judgment must be for the plaintiff. (3 Caines’ Rep. 89.) Again; if á plaintiff, in his-declaration, assign-preaches, and some of which are well assigned, and some not, on. a. demurrer to the whole declaration, the pláintiff shall llave judgment for- the breaches which fire well assigned. (Adams v. Willoughby, 6 Johns. Rep. 65.) This latter rule is strictly applicable to this case; for the plaintiffs had fheir election, either to bring an action of debt on the award, or to pursue the method they have adopted ; in' which case Kyd (on Awards, 280.) says, the whole question firises on the replication “. as on an original declaration.” The principle that a replication bad in part is pad. in whple, is not applicable to suep fi case. ■ That principle means substantial, constituent parts of a replication, and does not reach a case where the question relates merely to the damages a party is entitled to recover. Testing this replication by these rules, it is clearly good; the recitals preceding the submission, and the very object of the submission, show, satisfactorily, that the parties were respectively claimants, as owners of the 200 acres of land stated in the submission. The suits, in relation to which the arbitrators awarded, were distinctly submitted; the subject matter of these suits, the profits of the land, and all differences, contentions, and demands concerning them, and the costs of those suits. It was not'necessary to aver, that the persons mentioned to be in possession were the tenants of the defendant; that is to be inferred from the recitals and submission; but if they were not tenants, the defendant, claiming to be the owner of the land, saw fit to submit the title, the mesne profits, and the costs of the specified suits, and he is bound by the event.

It was urged, that if the award were void in requiring the defendant to dispossess the tenants, then, inasmuch as that part of the award which directed the suits to cease, would also fail, the award would be void in toto, for want of mutuality.

The delivery of possession is whplly’ disconnected with the cessation of the suits; they are terminated by the award, and, consequently, this award does not fall within the principle that that part of the award which is void is so connected with the rest as to affect the justice of the case between the parties; and, therefore, the award is void only pro tanto.

We are of opinion that the award is void as respects the delivery of possession by the tenants, for it does not appear that the defendant has the right or power to dispossess them; he is, therefore, required to cause strangers to the award to do .acts which he cannot control.

Judgment foy the plaintiffs, accordingly.