
    Dougald McArthur v. David D. Oliver.
    
      Timer and assumpsit on an awa/rd — Vacated judgment.
    
    Where trover and assumpsit were both brought on the same award, a showing- in the latter case that a judgment stipulated in the former, but afterwards vacated, had covered all damages claimed in both cases, and had been discharged by the imprisonment of the defendant in trover, was properly excluded as immaterial, not only because the judgment had been vacated, but because an imprisonment based) in part upon a claim in contract would be unlawful and could have no effect.
    Error to Alpena. (Green, J.)
    Jan. 17.
    April 16.
    Assumpsit. Defendant brings error.
    Affirmed.
    
      A. C. Maxwell for appellant.
    
      J. D. Turnbull for appellee.
   Champlin, J.

This is an action of assumpsit, based upon the award of the arbitrators in the matter of the submission between Dougald McArthur and the firm of Robinson & Oliver. The award and the material facts are stated in our opinion in the case of McArthur v. Oliver, ante, p. 299.

The testimony taken on the trial of the action of trover between these parties was by consent treated as the evidence in this case. In addition, the defendant offered to prove that the stipulation made by Tuttle & Holmes, in which they professed to act for both defendants, covered all damages claimed by plaintiff in both suits, and that, therefore, the damage» claimed in this case became and were merged in the judgment in trover, and were satisfied by the imprisonment on execution of defendant Robinson previously to the vacation of that judgment as to defendant Oliver.

The circuit judge held that if the damages arising upon contract were included in the judgment in trover, by stipulation, the defendants could not lawfully be imprisoned on the execution issued upon such judgment; and, further, that the vacation of that judgment upon the motion of the defendant Oliver was a vacation thereof as to both defendants, and therefore such testimony was immaterial. We think the ruling of the circuit judge was correct.

There was no error, and the judgment is affirmed.

The other Justices concurred.  