by John Marshall

“ But as a statement of facts has been substituted for the demurrer, we presume, the question respecting the admissibility of the evidence offered by the defendant is to be considered as if issue had been joined on the fact stated in the rejoinder. So considering it, there is, we think, no doubt of the admissibility of the testimony, nor of its competency, taken in connexion with the award itself, to prove, that a dispute existed respecting the lands mentioned in those letters, which was brought before the arbitrators. ”

“ The award to reconvey all lands heretofore conveyed or pledged to the plaintiffs by Gideon Dennison, in his life time, as collateral security, is as uncertain as the award to pay for task work and day work already performed; it was as much the intention of the arbitrators that the parts of their award which were favourable to the different parties should be dependent on each other in this case, as in the case of Pope v. Brett. The arbitrators never could have designed that Bond and Lyle should get their money, and retain their deposits. ”

“ The matter contained in the letters was pleaded by the defendant in his rejoinder, as being part of the subject in controversy, and is, consequently, confessed by the demurrer. Had the demurrer been argued, therefore, the first question could not have arisen. ”