Opinion
11-14-1803
Francis Neff v. Presly Talbot
This was an action of assumpsit. In consequence of an affidavit on the writ, setting forth the cause of action, and that the party would probably abscond, bail was demanded in the sum of eighty dollars. The suit was instituted in the District Court of Winchester. The declaration contained many counts, of which the first was general indebitatus assumpsit, and the rest were special. The sum claimed in the special counts was 23l. 10s. the value of a horse sold by the plaintiff to the defendant, and for which, the defendant had given to the plaintiff an order, or piece of paper, the consideration whereof was said to have failed. By the general count two hundred dollars were claimed. The damages was laid at five hundred dollars. The jury impanelled to try the cause, not being able to agree, a juror was withdrawn, and the rest discharged, and the parties mutually submitted all matters in difference between them in this suit, to the final determination of six persons named, or in case of their disagreement to the award of an umpire, to be by them chosen; whose award or the award of such umpire, they agreed should be made the judgment of the court. The arbitrators disagreed, and chose an umpire, by whom an award was made in favour of the plaintiff for 23l. 10s. and the award, under the hands and seals of the arbitrators and umpire was returned to court, whereupon, the case was adjourned to the general court.
The general court, consisting of Judges Tyler, Jones, White and Carrington, certified the following opinion.
OPINION
"It seems to the court that the writ [which laid the damages at five hundred dollars] and declaration in this cause exhibit a sufficient claim on behalf of the plaintiff to give the said district court jurisdiction, and the parties having by mutual consent submitted the determination of the cause to arbitrators, and agreed that their award should be made the judgment of the said district court, it is the opinion of this court that the said award ought to be governed by the same reason that would have governed a confession of judgment, had such confession been made in the said court by the defendant and accepted by the plaintiff, and therefore that judgment ought to be entered by the said district court for the plaintiff."
Vid. Maitland v. M'Dearman.