
    * David G. Eaton and Another versus Silas Stone.
    Whether in any case the party, who tenders an immaterial issue which is found against him, can have a repleader awarded on his motion : Qutere.
    Where land had been conveyed in payment of a pre-existing debt, which was cancelled at the time of the conveyance, and it was agreed, by deed, that the land should be appraised, as soon as convenient, by three disinterested men, after the manner of land taken on execution, and if the value of the land should be less than the debt cancelled, the grantor would pay the difference in six months from the date of the agreement; after the expiration of the six months, the grantee nominated an appraiser, and the grantor refusing, he was held liable to an action of debt for the penalty of the agreement.
    The declaration in this case was in debt upon an obligation in the penal sum of one thousand dollars.
    The condition of the obligation is set forth upon oyer, prayed by the defendant in his bar, and recites that Phinehas Stone, one of the obligors, had conveyed to the plaintiffs a house and land, situate in Weave, in payment of part, or the whole, of a debt due from the said Phinehas to the plaintiffs; and that it being uncertain whether the premises conveyed were equal in value to the debt, which was cancelled when the deed was executed, it was agreed that the said house and land should, as soon as convenient, be appraised by three disinterested men, after the manner of appraisements of land whereon executions may be levied; and that if the value of the premises should fall short of the debt which was cancelled, the obligors should pay the difference in six months from the date of the obligation, and then the penalty is to be saved, if they shall so pay, and shall fulfil all the other agreements mentioned in the condition of the bond.
    The defendant then avers a readiness at all times to proceed in the appraisement within six months from the execution of the bond, and, also, that the said Phinehas did, in fact, choose a suitable person to be an appraiser, and that another suitable person was chosen by Cook, the officer mentioned in the condition; and that another person, not a suitable and disinterested one, was chosen by the plaintiffs; and that these appraisers, so appointed, met, but could not agree on the value of the premises; and they then aver a readiness to fulfil the other conditions of the obligation.
    The plaintiffs, in their replication,
    confess the facts alleged in the bar, and endeavor to avoid them by showing that, at another time, after the expiration of six months from the date of the bond, and before the commencement of the suit, they did again choose an appraiser, whom they aver to be disinterested, of which they notified the said Phinehas, and requested him to proceed to choose an appraiser, but *that he refused; and that [*313] they also notified Cook, and requested him to choose an appraiser, but that he also refused, so that no appraisement has been made of the said house and land.
    The defendant, in his rejoinder,
    denies that the plaintiffs chose a disinterested person to be an appraiser, and tenders an issue thereon to the country, which was joined by the plaintiffs, and a verdict returned at the last November term, that the appraiser, chosen by the plaintiffs, was disinterested.
    The action stood over for judgment to this term ; and now *Sullivan, of counsel for the defendant, moved the Court to award a repleader, oh the ground that the issue, which had been tried, was immaterial, and that no judgment could be entered upon it. No appraisement having been made, the penalty of the bond cannot be adjudged forfeited. If the failure had been chargeable to the obligors, the bond would have become single. But they did all in their power to do it within the time limited; and after that time had expired, they were under no obligation to do any thing more. If the plaintiffs have made a contract which can never be executed, it is their own folly. If the defendants have performed all they were bound to, they are discharged from their obligation. 
    
    If the Court are at a loss what judgment to render on the verdict, they will order a repleader for their own sakes. 
    
    
      Dutton, for the plaintiffs,
    contended that there was enough apparent on the .pleadings to entitle them to judgment. If, until an appraisement shall actually have been made, the plaintiffs can have no action on the bond, the bond is perfectly idle; for the obligors can forever prevent an appraisement by refusing to nominate an appraiser. The plaintiffs have done all in their power to do towards the equitable adjustment contemplated by the parties to the bond; and the defendant, by refusing to appoint an appraiser, *has prevented the adjustment, and ought now to pay [ * 314 ] to the plaintiffs what is, in good conscience, due to them. 
    
    But this issue is not immaterial. If the jury had found that the appraiser nominated by the plaintiffs was not a disinterested person, the plaintiffs must have lost their cause ; for it would have been chargeable to them that no appraisement was made.
    If, however, the issue is immaterial, it is not for the party, who tendered the issue against whom it is found, to move for a repleader The Court will not grant it upon his motion, for he committed the first fault. 
    
    
      
      
        6 D. & E. 719, Worsley vs. Wood.
      
    
    
      
       2 Lilly’s Abr. 460. —2 Salk. 579.—1 Keb. 89. —1 L. Raym. 133. - 2 Sir. 994, 847.
    
    
      
      
        Willes’s Rep. 532
    
    
      
      
        Doug. 395. — 1 L. Raym. 170.
    
   Parker, J.

This case comes before the Court upon a motion that a repleader be ordered, on the ground that the issue joined by the parties, and tried by the jury, was wholly immaterial, so that nothing decisive of the merits of the case has been found, nor any thing upon which the Court can render judgment.

Generally a repleader will be ordered before or after verdict, when the Court shall be satisfied that the fact put in issue is irrelevant to the merits of the case. But it is at least doubtful, whether, in any case, the party, who tenders an immaterial issue, should it be found against him, can have the benefit of a repleader. And this upon the just principle, that the party who commits the fault shall not avail himself of that fault, to cause a prejudice or delay to the other party. To this effect speaks Justice Butter, in the case of Webster vs. Bannister, and the other judges do not deny the doctrine.

But still, if the issue shall be found to be clearly immaterial, although a repleadev may not be granted, it may be necessary for the Court to look into the whole of the pleadings, to see whether a judgment can be rendered; for it may be, that although the defendant in this case has no right to a repleader, yet that the pleadings on the part of the plaintiff do not show any thing on which he can be entitled to judgment,

[ * 315 ] *It is, therefore, necessary to inquire into the pleadings. (Here the judge recited the substance of the pleadings, as above stated, and proceeded.)

In order to determine this cause, we are necessarily carried back to the condition of the obligation declared upon ; for there only can we ascertain the contract, which was made by the defendant. It is apparent that the defendant intended to bind himself; that the land, with which the debt due to the plaintiffs had been paid, should be appraised; and that, when appraised, he would pay whatever difference there might be between that value and the amount of the debt so paid. The defendant contends, that he was bound to abide the award only in case it should be made within six months from the date of the bond ; and that if no appraisement should be made within six months, the obligation was void.

This construction would be manifestly unjust; and, as I apprehend, contrary to the intent of the parties ; for, indeed, it would deprive the plaintiff of all benefit of his obligation, in case of a delay, occasioned either by design of the obligor, or the convenience of the appraisers.

The condition, after reciting the grounds of the contract, states that it is agreed, that the land and house shall, as soon as conveniently may be done., be appraised, &c. This, undoubtedly, is equal to a covenant, that the appraisement shall take place, or at least that it shall not be prevented by a refusal on the part of the obligors to appoint an appraiser ; and if this is a stipulation on the part of the defendant, there is no reason why an abortive attempt to procure an appraisement should discharge him from it, and leave no remedy whatever to the plaintiffs, for the part of their debt which is lost, if the value of the house and land is less than the amount of the debt.

The only ground, upon which it can be contended that the obligation of the defendant to cause or suffer an appraisement expired in six months, is, that, by a subsequent stipulation, the defendant engages to pay such a sum as may be awarded, within six months from the date of the bond.

*This is a stipulation distinct from, and independent [ * 316 ] of the agreement to appraise, and ought not to limit the latter, contrary to the real intent of the contract and the justice of the case. Undoubtedly it shows that the parties expected an appraisement within six months; but it cannot be a condition on which the stipulation to make an appraisement was to subsist; for we find the obligors in this instrument saying, with a reference to this payment, if they do so, and also fulfil the other agreements herein contained, then their bond is to be void. There are but two agreements mentioned in the condition ; one, that the land and bouse shall be appraised; the other, that when they are appraised, the money shall be paid in six months from the date. The first agreement may subsist, although the second has now become impossible to be performed.

if, then, there is an absolute stipulation, amounting to a covenant, that the land shall be appraised as soon as it can be conveniently ; a second stipulation, viz. that the money shall be paid within six months from the date of the bond, ought to be construed to mean that payment shall so be made, if an appraisement shall be made within that time. But it would be manifestly unjust to consider the agreement to appraise as void after six months; there being, in that case, no remedy left to the obligees, if the value of the land and house should fall far short, as it might, of the debt for which it was intended to be received in payment only in case it was found equal in value to the debt. And, indeed, there was no other reason for the bond, than an expectation of the parties that the house and land were not sufficient in value.

On the ground, then, that there was an absolute undertaking to have an appraisement within a reasonable time, and that this time was not limited to six months, Phinehas Stone, one of the obligors, was bound not to refuse to appoint an appraiser, if he should be called on by the obligees to do it within a reasonable time. The replication states, that the plaintiffs did, on the 7th of [ * 317 ] September, 1807, * appoint a suitable disinterested person to appraise, and thereof did notify the obligees, who refused to appoint an appraiser on their part. The rejoinder does not deny that this was within a reasonable time, but denies that the person so appointed was disinterested ; and the issue, being joined on this fact, is found for the plaintiffs.

In this view of the case, the issue is material, for it decides the fact on which the obligation of the defendant to proceed in the appraisement rested ; which not having fulfilled, as appears by his admission in the pleadings, he has broken the condition of his obligation, and judgment at law ought, therefore, to be given against him upon the verdict; and he may be admitted, pursuant to the statute, to a hearing in chancery.

Sewall, J.,

of the same opinion.

Note. After the justices present, who had heard the argument, had delivered their opinions, Parker, J., stated that Sedgwick, J., did not concur with them. The chief justice, being present in Court, observed, that from a perusal of the pleadings, without having been in Court at the argument, he was strongly inclined to the opinion wh sh had been pronounced by his brother Parker,

Judgment on the verdict. 
      
      
        Doug. 396.
     
      
       [No rule is better established than this, that the Court will not grant a repleader, except where complete justice cannot be answered without it. — Per Tindall, C. J., 9 Bingh. 543, Goodbume vs. Bowman. — Ed.]
     
      
      
         [And see 1 Chitty s Pleadings, 6th London edition, 656, note (f).—2 Saund. 5th London edition, 319, c. — Kempe vs. Crews, 1 L. Raym. 170. — Staples vs. Hayden, 2 L. Raym. 922. —2 Salk. 579. — 6 Mod. 1. — Taylor vs. Whitehead, 2 Dougl. 747. — Tidd, Pr. 9th edition, 921. — Goodburne vs. Boweman, 9 Bingh. 532. — Tryon vs Carter, 2 Str. 954. — Ed.]
     
      
      
         [After verdict, upon an immaterial issue, if a repleader be not awarded, there must be judgment non obstante veredicto, unless judgment be arrested. — Ed.]
     
      
      
         [Vide Goodburne vs. Bowman, 9 Bingh. 352. — Ed.]
     