
    John Newnan vs. John Wood.
    In Error.
    In debt upon an award, made under a submission of “all matters in dispute,*' a party is not precluded from proof (upon proper issues,) of such items of accounts, as were not the subject of difference ‘between the parties, and which were not regarded, or acted upon by the referees, and which were due anterior to the submission and award.
    This was an action of debt, upon an arbitration bond. The bond, with the condition, is set out in the declaration, which recites, amongst other things, that Wood, “for the year 1819, had been the overseer and superintendant of the farm and slaves of Newnan; that differences had arisen between the parties, as to the amount of compensation to Wood; that the matters in relation thereto, and all other matters in dispute between them, were thereby submitted to the arbitrament and award of L. Ester and J. Reader, and in case of their disagreement, to an umpire to be chosen by them.” The declaration contains the usual averment, that the arbitrators, “on the 3d day of August, 1821, proceeded to hear and determine the several matters in dispute, but being unable to agree, then and there chose and appointed W. Ramsey, jr>, who took upon himself the duties of umpire, who, together with the arbitrators, awarded,” &c.
    To the declaration, numerous pleas were filed — the only one, however, necessary to be noticed, was a plea of set-offj based upon demands alleged to have existed in favor of Newnan, against Wood, previously to, and at the date of the award, which, as the plea alleged, “were not acted upon, or regarded by the arbitratorsto which plea, replications of non-assumpsit,and non-assumpsit within three, years were filed; upon which issues were formed.
    In the court below, the plaintiff, Wood, introduced and read to the jury, the award of the two referees, with the name of the umpire attached thereto; and introduced the arbitrators, who proved, that having differed between themselves, they mutually chose W. Ramsey as umpire, who consented to act, and who wrote the award and signed it, in conjunction with themselves; to the introduction of all which evidence, the counsel for the defendant objected— the objection was overruled, and the evidence submitted to the jury. The defendant below introduced a witness, and offered to prove, that when the arbitrators made their award, Wood was indebted to him, as in his plea of set-off alleged, which was not acted upon by the referees; but the court refused to admit evidence as to any matter anterior to the date of the award. The defendant further offered to prove, that he was not present when the award was made by the umpire; that he had no notice of the appointment of the umpire; and that the umpire heard none of the evidence on the part of the defendant — which evidence was also rejected by the court. Exceptions weré filed, the jury found for the plaintiff, and the cause is brought to this court by appeal, in the nature of a writ of error.
    Balch, Thompson and Martin for plaintiff in error.
    
      Foster and F. B. Fogg for defendant in error.
    
      It was argued by the counsel for plaintiff in error, thai doctrine as laid down in some of the books, established a rigidity of practice, and gave to awards a sanctity of character, which presents an anomaly in the history of legal jurisprudence. The courts of England, and of the American states, seem, in general, to have acted upon the principle, that nothing short of the most unblushing misconduct on the part of the arbitrators, such as would strike the senses of the most ordinary observer, should prevail against an award. Acting upon those principles, it was contended, that the court below had erred in rejecting the •evidence offered, under the plea of set-off, upon which an issue had been formed.
    By the terms of the submission, all the matters in difference, referred to in the condition of the bond, and “all other matters in dispute between the parties,” were referred. The plaintiff in error, by his plea alleged, that claims existed in his favor at the date of the award, “which were not included or regarded by the arbitrators,” &c.; which plea was replied to and issue joined. The issue of fact, thus deliberately formed by the parties, was submitted to the jury, and any matter pertinent to the point, should surely have been given in evidence. If the plea were bad, that matter should liave been taken advantage of by demurrer. But the court, on this point, seem to have gone upon the ground, that the submission embraced all matters of account between the parties, whether of a disputed character or not; and therefore, as is supposed, determined to exclude all evidence as to matters of dealing between the parties, anterior to the. date of the award. It certainly does often occur, when transactions are numerous, and of long standing between parties, that differences arise only upon some items of account. If a submission be made as to these points only, upon which an award is made, and suit be brought either upon the award, or upon the bond of submission, and upon the trial, (as in the present case,) the court should exclude all evidence as to those items of account, about which no difficulty had ever existed, the most obvious injustice would be the consequence; and most certainly all grounds for doubt must be removed, when the court recollect the issue. {Kyd on Awards 1-79; 1 John-. Rep. 509; 2 do. 183; 4 Haywood 256,)
    It was further urged, that the court below erred, in not admitting evidence to show, that Newnan had no notice of the appointment of the umpire, and that the umpire heard no evidence on the part of Newnan. 1 Dallas 161, 314; 3 Burrow 1259; 1 Raymond 271; 1 Sal/celd 392, were cited. In the latter case in Dallas, the court say, “that whatever would be good on motion for new a trial, would avail to set aside an award,” &c.
   Crabb, J.

delivered the opinion of the court. This court is of opinion, that the court below erred in rejecting the evidence offered by the plaintiff in error, under the plea of set-off, upon the sole ground, that no proof could be admitted of claims originating prior to the date of the award.

If Newnan had a claim,, which constituted a legal ground, of set-off, under his plea, and which was not “a matter in dispute” at the time of the award, and therefore not “included or regarded in the award” in the language of the plea, it ought to have been admitted in evidence. (Ravee vs. Farmer, 4 Term Rep. 146; Golightly vs. Jelico, 4 Term in note; Wheeler vs. Van Hauten, 12 Johnson’s Rep. 3.11; Kydon Awards 179.)

The matters in dispute, as set out in the submission, consisted entirely of claims on the part of Wood vs. Newnan. These, “and all other matters in dispute between the parties,” were submitted. But were the claims of Newnan vs. Wood, matters in dispute? and were they submitted? There is certainly nothing in this record, which shows it. The contrary is not improbable, from the silence' of the submission respecting them, in the first place; next from the language of the award, which directs monies to be pai'd to Wood, and Wood alone to receipt of release; whereas, Newnan too, would probably have been directed to receipt, or release, if his claim had been considered; and lastly, from the circumstance, pretty apparent from the record^ -that the umpire heard no evidence on the part of Newnan.

Reverse the judgment, and remand.the cause for a new - trial.  