
    Almond Wooden vs. Samuel Little.
    To an action on an award, the defendant should in his plea either deny the existence of the award, or he should plead performance or something by way of excuse for not performing it.
    Under a submission of “all accounts, disputes, controversies and reckonings, of whatsoever nature, now existing between the same parties,” it was held that the arbitrators might well embrace in their award, matters of a co-partnership composed ofthe parties to the submission and a third person now dead.
    Tried before Judge Richardson, Spring Term, 1826.
    This was an action brought on an arbitration bond, to which the defendant pleaded performance generally. The plaintiff replied an award, which he set out, and assigned a breach in the nonpayment of the award. The defendant rejoined that the arbitrators took into consideration other matters than those submitted in the bond, viz; a copartnership transaction between the defendant and bis son Robert Little deceased, in order to make Samuel Little the defendant liable for claims the plaintiff had against Robert Little, he alleging that Samuel Little was a- copartner of Robert Little and therefore liable for those claims.
    'To this rejoinder the plaintiff demurred generally, and the defendant joined in demurrer.
    On the argument of the case the court overruled the demurrer and gave judgment for the defendant; from which the plaintiff appealed on the following ground:
    That by the condition of the bond all "matters in controversy were submitted, which embraced the subject matter of the defendants rejoinder.
    
      ' J ¡ills I'or the motion,
    Cited 1 Com. Dig. 681. Tit.-JLrh. I. (4.1 3 Mod. 1 Chitti/s Plead. 618.2 Saund. 83-4 c. n. (I.) 3 Saund ISS.j Nothing dehors the award could be given iu evidence to the jury. And a suit at law will not lie: to examine the merits of an award. (2 Wilson 148. 2 John, R. 63. 3 John. 369. 10 John. 150. 9 John. 38. 2 Bay 450.) The party had a right to submit the claims as-surviving partner, as well as his own. In fact nothing was in dispute but that that of the copartnership claim, and the submission was sufficiently comprehensive for that purpose, (I Ghiiiy Plead. 37. 9 John. Cases405.)
    
   Nott, J.

The pleadings in this case are very irregular. The defendant ought in his plea to have denied'that there was any award, or he should have set it out - and have pleaded performance or somelhingby way of excuse for not performing'it. (1 Com. Dig.555.Arbitrament I. 4.)

However without looking into the regularity of the proceedings, the rejoinder has brought before us the point to be decided; to wit, whether on a submission of Samuel Little of all matters and things; &c. was embraced matters of a copartnership concern, or only those in which he was individually interested? The terms of the submission in this case are very broad; the words are, “ all accounts, disputes, controversies and reckonings of whatsoever nature now existing between the same parties. Robert Little, the other partner, was. then dead. Little, the surviving partner, was the only Only person who could settle their accounts. They were literally, therefore, accounts between the plaintiff and defendant, and no body else; and as the submission was of all accounts, &c. “of whatsoever nature they might be,” the co-partnership accounts as well as others were included. The demurrer therefore ought to have been sustained.

The motion to reverse the decision must be granted.

Mills for the motion.

Williams contra.  