Overtons Mill v. Ross
The Case of Overtons Mill, Prolegomena
In the Richmond common-law district court, Elizabeth Overton and Richard Overton, plaintiffs, against David Ross, defendent.
THE plaintiffs demanded 6000 pounds, complaining and declaring that the defendent, who had, on the 25th day of in the year 1784, by a sealed writing obligatorie, to the court shewn, the date whereof is the same day and year, acknowledged himself to be indebted to the plaintiffs the said 6000 pounds, yet refused to pay the money to them, wherefore they sued.
The writing obligatorie, in an assignment of the breach of its condition, is said to have been executed on the day of , in the year 1784.
It was, by the condition, to be void, if David Ross should perform the award of three persons, mutualy chosen to determine a controversie between the parties relative to a lease or agreement.
The agreement, signed and sealed by David Ross only, purported, that Richard Morris, on behalf of Richard Overton and Elizabeth Overton, leased to David Ross a parcel of land, with a grist-mill then erected thereon,
a fisherie, and other advantages, to be holden and enjoied by him, free from all interruption and molestation whatsoever, for seven years from August, 1783; and the David Ross engaged to build certain aedifices, and make other improvements, pay taxes, restore the said mill, in tenentable repair, with the improvements, at expiration of the term, and during the continuance thereof, pay rents. Subjoined are these words: 'a more particular agreement, or lease in due form, shall be executed, at any time either of the parties shall require; this agreement being taken for the basis of it. David Ross.'
The arbitrators, after reciting their authoritie, i'e', the writing obligatorie, on which the action is supposed to have been brought, and which in the award, but no where else, is alleged to be dated the 22d day of May, 1784, say, "they met, and considered the lease or agreement aforesaid,' the substance whereof they repeat, adding, 'it appears by the admission of each partie, that in januarie, 1784, by an extraordinarie and unexpected movement of the ice, the mill-house was intirelie demolished, and the said Ross had it not in his power to prevent the same. In persuance of the submission aforesaid, we do award and determine that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall complie with and perform the other covenants contained in the said lease.'
The defendent pleaded that he had performed the condition of the writing obligatorie in the declaration mentioned, and that there was no such award as is mentioned by the plaintiffs in their breaches assigned.
The plaintiffs replied generaly. Issues were joined; and the jurie found a verdict for the plaintiffs, assessing 3500 pounds damages, for which, with costs, judgement was rendered.
The defendent appealed.
Opinion of the court of appeals in affirmance of the district courts judgement, with quaries and remarks. Paragraphs of the opinion are in italic characters.
Between David Ross, appellant, and Elizabeth Overton and Richard Overton, appellees,
In this cause, two objections have been made to the judgement of the district court: first, that there is a variance between the award and the bond of submission stated in the declaration, the former refering to a bond dated the 22d of May, 1784, and teh declaration stating the bond in suit to be dated teh 25th of 1784. In supporting this objection the counsil principaly relied on the case of Turner v' Moffet in this court, reported in 2 Wash' 71. But that case does not apply; since the variance was apparent on the record, against which no averment is admissible: and
Was not the variance in the principal case, if a variance be there, apparent on the record? The obligation and award are both exhibited in court, and entered in the book registering allegations of the parties litigant and acts of the court, that is, were recorded; and is not the variance, between the bond and award which is shewn by comparison of one with the other of them, as apparent on the record here as the variance between the submission and award in the case cited?
It was truly observed by the attorney general, that that case was distinguishable from teh present, which, being a bond for the submission, was a matter en pais, and the supposed variance might be corrected by averment. The declaration states, that the defendent, on the 25th day of 1784, by obligation, the date whereof is teh same day and year, bound himself to the plaintiffs. In the breaches assigned, annexed to the declaration, after reciting the lease to the defendent, and its essential covenants, on his part, that differences had arisen, which they had mutually agreed to refer to arbitration, the plaintiffs aver, that they entered into bond, similar to that entered into by the defendent, to abide by the award, and that the defendent, on the same day, to with, the day of 1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them not Rosses bond but, that entered into by the plaintiffs, which, they say, is dated the 22d of May, 1784.
If the variance were only 'supposed,' were an hypothesis, that is, if no variance were, an averment to 'correct' it was superfluous, the date of the bond was correct, without averment. If between the 25th day of 1784, and the 22d day of May, 1784, a variance be, what will authorize averment, that those days were the same? An evasion of this question may be, but a categoric answer to it is not, expected: evasion, as hereafter appeareth, thus: 'the bond hath no date;' and 'we consider the date of the bond,' 25th of in the year 1784, 'and the blank date of averment,' day of in the year 1784, 'to be no date.'
Without going over the several cases cited, the rate laid down in I lord Raym' 335 seems to have run thro' them all, that is, that if a bond hath either none or an impossible dated, the plaintiff may aver an day which he can prove the bond to have been delivered.
No man ought to have controverted the rectitude of this rule, if lord Raymond had not laid it down. But every man is not convinced that the rule is proved to APPLY to this case by such argumentation as
The present case is that of no date to the bond.
Did Aristotle, Ramus, Milton, Duncand, &c. in their dialectic institutions, teach their disciples that in a syllogism the minor proposition, as is done here by these words, 'the present case is that of no date to the bond,' may be taken for granted?
For the counsils curious criticism, refering the 25 day of something to that day of the year was calculated only to occasion the mirth it produced. We consider that, as well as the blank date averment, to be no date, and of course, there is no variance between that and the true date mentioned in the award.
Passing over some 'curious' phrases occuring in the paragraph immediatelie preceding, and the conclusion, as 'curious' as any of them, namelie, 'of course there is no variance between that,' the 25 day of in the year 1784, 'and the blank date averment,' the day of 1784, 'there is no variance between these "and the true date mentioned in the award,' that is, there is no variance between the date of a bond 'of no date,' or a bond of a date which 'we consider to be no date, and the date of a bond which hath a true date; passing over this phraseologie perplexed, inexplicable, inconsistent, we ask,
Can the bond, which Richard Overton and Elizabeth Overton recite in their declaration, and whereof the date is there alleged to be the same day and year, i'e,' the 25 day of in the year 1784, be trulie said to bear no date? Is not a year, distinguished by the number of isochronous revolutions computed from a known epoch, a date no less trulie, tho' less preciselie, than a month, or a particular day of any month specially named, in that year? An olympiad was a quaternion or period of four years used antiently by the greeks for sup-
putations of time: would Areopagus have 'considered a bond,' the date whereof was in the first, second, third or fourth, year of some one olympiad, to be a bond 'of no date,' because the name of hecatombaeon, or of scirrophorion, or of some one of the ten intervening months, or the day of the month was omited? The roman aera was the building of the citie; would the praetor have 'considered a bond,' the date whereof was in a certain year of the citie build, to be a bond 'of not date?' Europeans and british americans observe, for the same purpose, Jesus Christs nativitie; if lord Raymond in Westminsterhall had said 'he considered' a bond the date whereof is the 25 day of in the year 1784, to be 'of no date,' it probalie would have 'occasioned' there no less mirth, than a counsils 'criticism' produced in the capitol, when some reasons for affirming the district courts judgement were attempted to be explained; and when that affirmance was proclaimed, might not one of the auditorie have asked risum taneatis amici?*
In truth no date could have been avered, but the 25 day of some month between december, 1783, and june of the succeeding year, for on the 15th day of that month the arbitrators power expired.
- Perhaps the foregoing concionation, by this time, has disposed the auditors to oscitation rather than cachinnation; they might be too drowsie to laugh.