
    Dorman Bridgeman vs. Nathaniel Eaton.
    Caledonia,
    
      March, 1831.
    A general discharge of all demands, naming a great variety, and executed after tin; lime in which au award should be performed, is, prima facie, a discharge of the covenants to perform sUch award.
    An action of covetiatU broken will not lie for converting specific property two years after it is awarded to plaintiff i but trover is the proper action.
    This was an action of covenant broken, by the declaration and pleadings in which it appears the plaintiff and defendant, and one Russel Bridgeman, had been dealing as partners ; and, in order to close their dealings,submitted all their matters of partnership, including the division among them of the partnership property on hand, to certain arbitrators, and all signed a Writing containing mutual, individual covenants to abide and perform the award. An award Was made July 6, 1827, including all matters submitted, and pointing out certain payments, and dividing cattle and some debts among them, adding, “ and all the other remaining demands concerning the company shall be for the benefit and sole use of the said Dorman Bridgeman, the plaintiff.” Then 'followed an award, that each should release to the other all claims, suits, controversies and demands whatsoever, to the date of said award; which date was July 6, 1827.
    The declaration, after setting forth this award, alleged, as a breach of the defendant’s covenant, that there was a contract, by which one Carter was holden to deliver to said company 2500 cedar rails; that this contract was in the custody of the defendant, and that he was often requested, and especially on the second day of January, 1830, to deliver said contract to the plaintiff; but he refused, and then delivered it up to Carter,, and received the amount, averring that this contract was one of those awarded to the plaintiff.
    The defendant pleaded in bar a release dated July 7, 1827, executed to him by the plaintiff, in full of ail demands, naming over every thing capable of being named, from the beginning of the world to the day of executing said discharge, to wit, July 7, 1827. To this plea the plaintiff demurred, and the defendant .joined in the demurrer.
    The county court adjudged this plea insufficient. The defendant excepted to this decision, and the action was brought up to this Cou rt for revision and adjudication.
    
      Mr. Cushman now argued for the defendant. In actions of covenant there is strictly nó general issue > for the plea of non 
      
      est factum only puts the deed in issue. — Defendant must plead a J J, : release. — 1 Chitty, 482.
    
      2. A release of all demands excludes the party from all actions, or rights of action. — 2 Jac. Law Die. 238.
    3. A release of all demands discharges a bond payable at a future day.--5 Jac. L. Die. 438 ; Co. Lit. 292.
    4. The rule, that a release of all demands does not operate as a discharge of covenants not broken, does not apply when the right of action does not accrue from the specialty alone; but where the plaintiff must set forth acts to be performed, and aver a non-performance, as in this case. — 4 Dane, 238 ; Co. Mr. 202.
    5. The release is executed in fulfilmentofthe award.
    6. The release is a discharge of all claims accruing from the award ; and, therefore, a good defence in this action.
    7. If defendant could produce a release of the demand for rails, in particular, it would constitute a good defence : and no less full and efficacious is this release,not only for the vails,but for every other demand whatever.
    8. Whatever will operate as a discharge of any demand, arising out of the award, will also discharge all right of action, arising out of the submission.
    9. The defendant cannot avoid the effect of his release, by declaring in covenant.
    
      Mr. Mattocks, for the plaintiff. — 1. The plaintiff’s cause of action accrued in January, 1830, when defendant refused to deliver the note on demand, and gave it to Carter to be cancelled, on receiving the amount. This violated the award, which said, “ all notes, fee. should be for the sole benefit and control of plaintiff.” Strike out this averment, and there is no breach assigned. — The release, therefore, cannot afieetthe cause of action, which, on the 7th July, 1827, did not exist.
    2. It is a maxim of the Jaw, “ that a release, and the general words of it, shall be restrained and bound to the intent of the parties.” — ! Swijt’s Dig. 300-1 ; 2 Com. Dig. 671, and the authorities there cited. The case shows, that it was the intention of the parties to release all claims existing before the award, and such present claims as the award gave them ; but any right growing out of the award could not have been intended to be discharged nor any wrongful act of defendant in violation of those rights. Suppose the defendant had long after the release discharged all the demands awarded to plaintiff — was the release prospective »enough to shield him ? If plaintiff is barred from this form of action, for this injury, he would be from any action for any injury relating to the subject matter of the award. And this discharge, if the word covenant had been used, which is not, would not release a contingent right, nor a personal covenant before breach. — Ty-nan vs. Bridges, Croke Jas. 300 ;— Coke. IAt. 292, note ;— Stephens vs. Snotu., 2 Salk. 578 ; — Jacob’s L. D., Release ;— Bor's Case, Coke's Rep. 161.
    3. But a demurrer to a plea may recoil. Is the declaration sufficient? 1. A covenant to two is several, if the interest is several. See the doctrine of joint and several covenants, Ears, of Castle vs. Clipham, 1 Saunders, 153, and notes ; — 4 Dane, 54. Covenant is the proper action on a sealed instrument, without penalty, to perform an award. — 5 Dane, 125. 2. Two were empowered to make the award, and they all assembled and heard the parties. 3. Defendant covenanted “ to stand to and perform” the award. The ancient case of Johnson vs. Proctor, and the leading case of Browning vs. Wright, 2 B. & P. 18, decide, that “a covenant is to be construed according to the intention of the parties.” What was the intention ? Clearly to do all acts proper to carry the award into effect; and omit all, which would deprive the other party of the benefit of the award. — Jacob’s L. D., Covenant; 3 Com. Dig. 257, 266-9. The form of the declaration is not reached by this general! demurrer.
   Hutchinson, C. J.

after slating the case, delivered the opinion of the Court. — In deciding upon the validity of this plea, it is necessary to consider the extent of the discharge relied upon, in connection with the dates of the several transactions. The release pleaded is broader than the requisitions of the award, both in the terms used in describing the matters discharged, and the period to which it extends. The award was that the parties should release all matters to the date of the award, which was July 6th. The release is of all matters to the date of the release, which was the 7 th of the same July. And, when we notice that the award requires all things to be performed forthwith, and that the releases awarded were not to discharge the duties created by the award, but only all matters antecedent thereto, it is natural and reasonable to inquire, why the release given should bear date a day later than the award, and discharge every thing that couldbe named up to the date of the releases, unless there was a mutual performance of the matters and duties required by the award, during the intervening day, and the parties intended to discharge the award, as well as all prior claims. This debt against Carter was virtually awarded to the plaintiff; but the award does not, in terms, create any duty in the defendant concerning it. If it created any duty by implication, it must have been to deliver over this demand under the word payment. If there was such a duty,it existed during the day, in which payments were made. This release covering that day, and comprising all demands, and that in all varieties of expressions, must be considered as discharging that duty, while it stands .on demurrer. How far this effect might have been prevented .by a special replication, presenting facts no.t known to the court, is not for us now to determine.

John Mattocks, for plaintiff.

Bell & Cushman, for defendant.

A further difficulty presents itself, if we go back to the declaration. The averments in the declaration show, that the demand against Carter became the property of the plaintiff by force of the award, and he had a right to the immediate possession, to -the exclusion of the other partners. Before the award, the possession of each was the possession of the whole. After the award, the refusal of the defendant to deliver this demand to the plaintiff might be a conversion, or furnish a ground for the plaintiff to recover its amount in an action of trover; but we see not how it can be a breach of any covenant contained in this bond. The taking .of cattle, by one of these parties, after they were awarded to an other, or making encroachments on the land awarded to that other, would be wrong and furnish cause of action, but would not be a breach of any of these covenants. It would be acting contrary ■to the spirit and meaning of the award in one sense — but the action must be brought as for an injury to the plaintiff’s property ; not as a hindrance to a vesting of the property in the plaintiff. If there were sureties to an arbitration bond, it would be hard, were they to be holden, not only that the parties should abide by, and perform, the award, but should ever after deal justly with regard to •the property that vestedin the opposite party by virtue of such award.

In a suit in trover for this property, or a suit for the money after it was received, this release would be no bar; for .the plaintiff, having a right to the property, can assert that right whenever it is invaded : and till then, this discharge cannot operate against his action. The Court decide, that the plea is sufficient, and the declaration is insufficient; and the judgement of the county court is reversed, and judgement rendered for the defendant to recover his costs.  