the submission may be given in evidence under the plea of non assumpsit, or nil debet, by the common law.73 Where the action is assumpsit upon a submission by parol, the plea of non assumpsit, where it is not otherwise restricted by rules of court, puts in issue every material averment of the declaration. "Under this issue, therefore," it is said, "the defendant may not only show those things which affect the original validity of the submission, or of the award, such as infancy, coverture, want of authority in the arbitrators, fraud, revocation of authority, intrinsic defects in the award, and, if there is no other mode of relief, extrinsic irregularities also, such as want of notice and the like; but he may also show anything which at law would defeat and destroy the action, though it operate by way of confession and avoidance, such as a release, payment, or performance." So, in debt on an award the general issue of nil debet puts in issue every material allegation of the declaration.75 "And sometimes, where assumpsit has been brought upon the original cause of action, either party has been permitted to show the submission and award under the general issues, as evidence of a statement of accounts and an admission of the balance due, or of a mutual adjustment of the amount in controversy." It has also been held that, while the submission must, ordinarily, be proved in an action upon an award, where the party against whom the

or award cannot be varied or explained by parol: Buck v. Spofford, 35 Me. 526; declarations by an arbitrator, some days after making and publishing his award, are incompetent to impeach it: Hubbell v. Bissell, 2 Allen (Mass.) 196; it has been held that an award may be binding though the arbitrators meet outside the state: Edmundson v. Wilson, 108 Ala. 118, 19 So. 367, and that it is not binding where the arbitrators strike an average between their opinions as to the amount due: Luther v. Medbury, 18 R. I. 141, 26 Atl. 37.

"Sackett v. Owen, 2 Chitty 39. See and compare, Rice v. Loomis, 28 Ind. 389.

742 Greenleaf Ev. § 81; Stephen Pl. pp. 179-182 (Am. ed. 1894); Taylor v. Coryell, 12 S. & R. (Pa.) 243, 251; Allen v. Watson, 16 Johns. (N. Y.)

203; see also, Whitcher V. Whitcher, 49 N. H. 176, 6 Am. R. 486; Woodbury v. Northy, 3 Me. 85, 149 Am. Dec. 214; Abbott v. Skinner, 11 U. C. C. P. 309.

"Bean v. Farnam, 6 Pick. (Mass.) 269; Ott v. Schroeppel, 3 Barb. (N. Y.) 56; Blood v. Bates, 31 Vt. 147; Turner v. Alway, 5 U. C. Q. B. (O. S.) 45; but compare, Connecticut &c. Co. v. O'Fallon, 49 Neb. 740, 69 N. W. 118.

76 2 Greenleaf Ev.. § 81; Keen v. Batshore, 1 Esp. 194; Kingston v. Phelps, Peake Cas. 228.

VOL. 3 ELLIOTT Ev.-8

award is sought to be used admits it in his pleadings, he also in effect admits the submission, and further evidence thereof is unnecessary.

77

§ 1666. Revocation.-The defendant may also, in most jurisdictions, show that the authority of the arbitrators was revoked before the making of the award,78 unless it is made under a rule of court and no leave is granted to revoke it.78* And the death of either of the parties to a submission at common law, before the award is made, will amount to revocation;79 unless it is otherwise clearly provided in the submission.80 Whether bankruptcy is a revocation, is not clearly settled.81 Where the submission is at common law, and in some instances, even where it is under the statute, but is not yet made a rule of court, it seems that either party may revoke the authority of the arbitrators; though he may render himself liable to an action for so doing. But if the submission is by two, a revocation by one only has been held to be void.83

82

"Sadler v. Olmstead, 79 Iowa 121, 44 N. W. 292.

78 Harrison v. Hartford Fire Ins. Co., 112 Iowa 77, 83 N. W. 820; Paulsen v. Manske, 126 Ill. 72, 18 N. E. 275 9 Am. St. 532; Boston &c. R. Co. v. Nashua &c. R. Co. 139 Mass. 463, 31 N. E. 751; Butler v. Green, 49 Neb. 280, 68 N. W. 496; but not afterwards: Coon v. Allen, 156 Mass. 113, 30 N. E. 83; Connecticut &c. Co. v. O'Fallon, 49 Neb. 740, 69 N. W. 118; in a few cases a submission has been held irrevocable: McKenna v. Lyle, 155 Pa. St. 599, 26 Atl. 777, 35 Am. St. 910; McCune v. Lytle, 197 Pa. St. 404, 47 Atl. 190; Guild v. Atchison &c. R. Co., 57 Kans. 70, 45 Pac. 82, 33 L. R. A. 77.

78* Bash v. Christian, 77 Ind. 290; Gregory v. Pike, 94 Me. 27, 46 Atl. 793; California Academy v. Fletcher, 99 Cal. 207, 33 Pac. 855.

7 Gregory v. Pike, 94 Me. 27, 46 Atl. 793; Edmund v. Cox, 2 Tidd Pr. 877, 3 Doug. 406, 2 Chitty 422; Cooper v. Johnson, 2 B. & A. 394; Potts v. Ward, 1 Marsh. (U. S.) 366; but

compare, Citizens' Ins. Co. v. Coit, 12 Ind. App. 161, 39 N. E. 766; Michigan &c. Church v. Hearson, 41 Ill. App. 89; Chapman v. Seccomb, 36 Me. 102; Toussaint v. Hartop, 7 Taunt. 571; so held where one refuses to act: Wolf v. Augustine, 181 Pa. St. 576, 37 Atl. 574; but if the submission is under a rule of court, and the action survives, it is not revoked by death: Bacon v. Crandon, 15 Pick. (Mass.) 79; see also, Bash v. Christian, 77 Ind. 290.

So Macdougal v. Robertson, 2 Y. & J. 11, 4 Bing. 435; Mooers v. Allen, 35 Me. 276, 58 Am. Dec. 700; Bailey v. Stewart, 3 W. & S. (Pa.) 560.

81 Marsh v. Wood, 9 B. & C. 659; Andrews v. Palmer, 4 B. & A. 250; Kemshead, Ex parte, 1 Rose 149.

82 Skee v. Coxon, 10 B. & C. 483; Milne v. Gratrix, 7 East 608; Clap

83 Robertson v. McNeil, 12 Wend. (N. Y.) 578; see also, Lewis Appeal, 91 Pa. St. 359; Wilde v. Vinor, 1 Brownl. 62, and compare, Brown v. Leavitt, 26 Me. 251.

§ 1667. Disability.-It has been said that the defendant may also show, in defense, that one or more of the parties to the submission was a minor, or a feme covert, and that therefore the submission was void for the want of mutuality. So, he may show that the arbitrators, before making their award, declined that office, and thereupon they ceased to be arbitrators;85 or that the arbitrators, unknown to him. in time to object, were incompetent and disqualified. But it has been held that an objection that some of the parties had no capacity to contract is not available to those who have such capacity.87

§ 1668. Award as evidence in other proceedings.-As a general rule a valid award merges all claims embraced in the submission, and it is generally conclusive evidence of facts necessarily involved in the arbitration in a subsequent litigation between the same parties or their privies when the same facts are directly in issue.88 But an award is not, ordinarily, at least, competent evidence against one who was neither a party to the arbitration nor in privity with a party thereto.89 And it has also been held that the rule which permits a verdict, in some instances, to be shown as evidence of reputation, even between strangers to the record, does not apply to an award.90

circumstances of each case. Caldwell v. Caldwell, 121 Ala. 598, 25 So. 825; Prentiss v. Wood, 132 Mass. 486; Gaylord v. Gaylord, 48 N. Car. 367; Haubrick v. Johnston, 23 Minn. 237; Terre Haute &c. R. Co. v. Harris, 126 Ind. 9, 25 N. E. 831; Tennessee Mfg. Co. v. Haines, 16 R. I. 204, 14 Atl. 853; Whitehead v. Tattersall, 1 Ad. & El. 491, 28 E. C. L. 239: Gueret v. Audouy, 62 L. J. Q.

§ 1689. Generally.-"An assault," says Judge Cooley, "is an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented. . . . A successful assault becomes a battery. A battery consists in an injury actually done to the person of another in an angry or revengeful, or rude or insolent manner."1 There must in a sense be an intent, express or implied, to do injury, and an accidental injury, as to which the actor was blameless, is no battery. But it is not essential that the actor should have designed to inflict the precise injury that he did inflict;3 and personal injury

Cooley Torts (1st ed.) 160, 162; see also notes in 9 L. R. A. 445 and 14 L. R. A. 226; 1 Hawk P. C. 263; Coward v. Baddeley, 4 H. &. N. 478; Bishop Non-Contract Law §§ 190 et seq.

* Brown v. Kendall, 6 Cush. (Mass.) 292; Fitzgerald v. Cavin, 110 Mass. 153; Gibbons v. Pepper, 4 Mod. 405; Alderson v. Waistell, 1 Car. & K. 358; Stanley v. Powell, (1901) L. R. 1 Q. B. 6, 60 L. J. Q. B. 52; see also Commonwealth v. White, 110 Mass. 407; Stearns v. Sampson,

59 Me. 568, 8 Am. R. 442; Shriver v. Bean, 112 Mich. 598, 71 N. W. 145; Metcalfe v. Conner, 5 Litt. (Ky.) 370; Paxton v. Boyer, 67 Ill. 132, 16 Am. R. 615; but compare, Carlton v. Henry, 129 Ala. 479, 29 So. 924; and see generally, Brown v. Collins, 53 N. H. 442; Wakeman v. Robinson, 1 Bing. 213; Weaver v. Ward, Hob. 134; Fletcher v. Rylands, L. R. 3 H. L. 330.

3 State v. Myers, 19 Iowa 517; Corning v. Corning, 6 N. Y. 97; Vosburg v. Putney, 80 Wis. 523, 50 N.