Fleming v. Chinowith , 2 Ky. 17 ( 1801 )

This is an action of debt brought on an award. The plaintiff in error is, by the award, subjected to the payment of a considerable sum of money, but as the payment must, from the award and the nature of the case, depend on the performance of certain things by the defendant, those things must be considered as precedent conditions, the averment and proof of .the performance whereof were indispensably necessary to entitle the plaintiff in the court below to his action. Unless the mill in the occupation of McHatton had been given up, and the release had been executed by Chinowith to Fleming, agreably to the award, the object which Fleming must have had in view when he entered into the arbitration could not have been attained, and the award, so far from putting a final end to the controversy, would only have laid the foundation for new contests. Therefore, it is considered by the court that the judgment aforesaid be reversed, annulled, and set aside, and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.