
    Lewis C. Gibson vs. Harmon Powell.
    An award must always be in strict accordance with the submission, and not extend to subjects not submitted, nor to strangers to the submission; and it must be certain and mutual. An award lacking any of these requisites is void.
    An award containing illegal matter, will yet be upheld as to the matter actually submitted, provided the part which is good can be separated from and exist independently of that which is bad.
    An award which is good in part and void as to the rest, cannot be enforced, if either party can object to the performance of his part, on account of the want of a remedy to enforce on the other the performance of that part which is void.
    Gibson, holding two notes of Harmon Powell, Henry Powell, and Henry C. Bennett, for the sum of $3595 each, subject to certain credits, and a controversy arising about them, it was agreed to submit the matters in dispute to three arbitrators ; the submission, signed by Gibson, H. Powell, and H. C. Bennett, merely reciting the controversy to be about two notes held by Gibson, and made by the others, without describing the notes or naming the arbitrators, and containing an agreement to abide by the award; the award described the notes in full, with the credits on them, with the interest, showing the balance due by the makers to be $6667 97; and directed that James Powell (not a party to the award,) should make a deed to Gibson to certain property, and the notes therefore be credited with $3983; that of the balance due, Harmon Powell was to pay 1790, andH. C. Bennett $895 ; that certain lumber and hogs were to be divided between Harmon Powell and Bennett, and that Powell and Bennett should confess judgment with stay of execution. Held, that the award was wholly void.
    Where a declaration contains a count upon a special contract, and also the common counts, and the plaintiff fails wholly in his right to recover on the special count, he may recover on the common counts, provided the case be such that if there had been no special contract, he might still have recovered under the common counts.
    G. brought an action against H. P. upon an award, the declaration containing a special count upon the award, by which, among other things, H. P. was directed to pay G. $1790. The declaration also contained another count, that H. P. in consideration that G. would deliver to him two notes made by H. P. and others, and owned by G., he H. P., would pay G. $1790, with the averment of the delivery of the notes to H. P. Held, that even though G. should fail in his count upon the award, on the ground that the award was void, he might still recover on the second count, if it was sustained by the proof.
    Where no offset is claimed by the defendant in his pleadings, one cannot be allowed by the jury.
    G. sued H. P. for $1790, in assumpsit; H. P. plead the general issue ; it was proved that H. P. admitted that he owed G. that sum; it was also proved that H. P. executed bis note for $600 to G., in part payment of it, and that at that time, G. owed H. P. about $600; the jury found a verdict for G. to the amount of $637. Held, that the verdict was erroneous ; and G. entitled to a new trial.
    In error from the circuit court of Simpson county, Hon. Henry Mounger, judge.
    Lewis C. Gibson filed his declaration in the circuit court against Harmon Powell, at the May term, 1842, in these words, viz. :
    “ Lewis C. Gibson complains of Harmon Powell, being in custody, &c. of a plea of trespass on the case. For that the said defendant, on the 19th day of October, 1840, at "W estville, in the county of Simpson aforesaid, was indebted to the said Lewis C. Gibson in the sum of seventeen hundred and ninety dollars, for so much money assumed and promised to be paid to the plaintiff for one Henry Powell, and being so indebted, he the said defendant, in consideration thereof, then and there undertook, and faithfully promised the said plaintiff, to pay him the said sum of $1790 in this count mentioned, when he should be thereunto afterwards requested.”
    To this declaration the defendant demurred; upon which the plaintiff filed an amended declaration, in these words, viz.:
    
      “ For that whereas heretofore, to wit: on the-day of-, in the county aforesaid, a controversy having arisen between the said plaintiff and Henry Powell, said Harmon Powell and Henry G. Bennett, touching two several promissory notes made by said Henry Powell, Harmon Powell, and Henry C. Bennett, the one due the 1st day of January, 1840, for the sum of $3595; and the other for the like sum of $3595, due 1st day of January, 1841; and both payable to the said plaintiff, subject to credits amounting to the sum of $708 44; and the parties being desirous to settle and adjust the residue of the said matters of dispute, then and there agreed to submit the same to the arbitration and award of John McIntosh, James Dear and John Bishop, persons indifferently chosen by and between the said parties for that purpose; and the plaintiff avers that the arbitrators chosen and constituted as aforesaid, afterwards, to wit, on the 19th day of October, 1840, in the county aforesaid, did make and deliver to the parties aforesaid their award in writing, in substance and effect as follows, to wit: that the said Harmon Powell, defendant, should pay to the said plaintiff the sum of seventeen hundred and ninety dollars, and that the said Henry C. Bennett should pay the sum of eight hundred and ninety-five dollars ; and that the said Harmon Powell and Bennett should respectively make an office confession of judgment, for said several sums in favor of said plaintiff; and by said award it was farther provided and awarded, that there should be a stay of execution till the first day of March next; meaning March, 1841, and that at said last-mentioned date, execution should only issue for one third of each of said several sums of money ; and for the balance thereof that execution should be stayed till the first day of January next, thereafter, to wit: the first day of January, 1842; of all which the said defendant, at the county aforesaid, had notice. By means whereof,” &c. (the ordinary breach.)
    “And whereas also, on the --day of October, 1840, at the county aforesaid, the said defendant, in consideration that the said plaintiff would give up and relinquish to the said defendant, Henry Powell and Henry C. Bennett, two certain promissory notes for the payment of money, which he held against them, and which were made by them in his favor, to wit: one note due the 1st day of January, 1840, for three thousand five hundred and seventy-five dollars; and another note due on the 1st day of January, 1841, for three thousand five hundred and seventy-five dollars, undertook, and then and there faithfully promised the said plaintiff, to pay him the sum of seventeen hundred and ninety dollars; and the said plaintiff avers, that on the day and year last aforesaid, at the place aforesaid, he did give up and relinquish to the said defendant, Henry Powell and Henry C. Bennett, the promissory note aforesaid.”
    The declaration closed with the ordinary money counts and with the usual breach.
    The defendant, besides the plea of non-assumpsit, plead,— 1. That the award of the arbitrators required the two notes in controversy to be delivered up to the makers, before the money found due by the award was to be paid; and that the notes never had been delivered up.
    2. That the arbitrators had been induced to make the award on promises of Gibson, which were considered as conditions precedent to the award being binding, which promises Gibson had never performed. What these promises were, the plea did not state.
    3. That he had well and truly, and before the institution of suit, performed the award.
    4. That before action brought, he had paid the sum found to be due by the award.
    Issue being joined upon these pleas, there came a jury who found a verdict for the plaintiff for $637 30.
    The plaintiff moved for a new trial, which being overruled, he filed a bill of exceptions, embodying the evidence.
    On the trial, the plaintiff read without objection the following paper:
    ‘ The State of Mississippi, ) Simpson County. $
    “You and each of you do solemnly swear, that you will abide by and perform the decision of the arbitrators, who are now about to enter on an arbitration, to settle the matter of difference between Lewis 0. Gibson, holder of two promissory notes against Henry Powell and H. C. Bennett, so help you God. Lewis G. Gibson,
    H. Powell,
    H. C. Bennett.
    
      “ Sworn to and subscribed before me this 16th day of October.
    J. K. Stkatton, J. P.”
    The plaintiff then offered the following paper, to wit: “ Lewis C. Gibson v. Henry Powell, Harmon Powell, H. 0. Bennett, on two notes, one due the 1st day of January, 1840, for $3575
    Interest for 9| months,. 226 41
    $3801 41
    
      Or.
    By $286 70 —Int. $10 83
    By $400 00 —In t. $10 67 .... $708 44
    $3092 97
    “ And one note due 1st day of January, 1841, $3575 00
    $6667 97
    “ James Powell, to make a deed to Lewis C. Gibson, for the mills as formerly owned by Henry Powell, the appurtenances thereto, timber, wheels, and blacksmith tools, at.$3983 00
    $2685 00
    
      “ Harmon Powell, to pay of the above sum, $1790
    “And H. C. Bennett pay . . . 895 — $2685 00
    “ Supposed to be 27,500 feet of lumber at the mill, at $203 10
    
      “ Fifty head of hogs, at.$205 $408 10
    
      “ This sum of four hundred and eight dollars ten cents is to be divided between Harmon Powell and Bennett, to dispose of as they may think proper towards assisting them in the payment of the above sums. That Harmon Powell and H. C. Bennett be required to make an office confession of judgment for the said sums, with security, as stated in favor of the said Lewis C. Gibson; that Henry Powell be encouraged to render all the assistance in his power, to help the said Harmon Powell and H. C. Bennett in paying said sums. Now we, the undersigned arbitrators, having' taken the whole matter given us to consider of, as here stated, and after weighing all the attending circumstances as fully and impartially as we can, with the liability and responsibility of each, do make this as stated, our award, this 19th day of October, 1840; further — that we make this provision, that there be a stay of execution till the 1st day of March next; which is to run then for only one third of each sum, and the balance with a stay till the 1st day of January next thereafter, being January, 1842. J. McIntosh,
    James DeaR,
    John Bíshop.”
    
      The plaintiff at the same time offered to prove by Dear and Bishop, that it was part of their award assented to by Harmon Powell and the plaintiff, at the time the award was made, that the plaintiff should deliver up to be cancelled the two promissory notes for $3575 each, referred to in the award; but the court being of opinion that the paper offered was not an award, refused to permit it to be read under the first count in the declaration, and rejected the other proof offered, to which the plaintiff filed his exceptions.
    H. C. Bennett being then sworn, stated that about the 21st of October, 1840, the plaintiff and defendant were in company at his house; that the plaintiff claimed that the defendant was indebted to him in the sum of seventeen hundred and ninety dollars, provided he would give up to the witness and defendant the two notes referred to above; that the defendant did not contradict the claim; that the witness had agreed to pay a separate sum for his own release from the notes, and that thereupon the plaintiff gave up and delivered to witness and defendant the said notes, and they were then and there torn up by the parties; that it was understood that Powell owed Gibson, according to the arbitration, $1790; Powell at that time executed his note to Gibson for $600; it was further then understood by the parties and the witness, that Powell had an outstanding account against Gibson for about the same sum, $600. The witness stated that he had paid the sum he had agreed to pay.
    J. B. Mendenhall testified that Gibson agreed to pay him one hundred dollars for a house he had, provided the defendant would pay it out of what he owed Gibson; the witness asked defendant if he would do so, who replied the times were so hard he could not do it.
    There was no bill of particulars filed with the defendant’s plea of payment, but he introduced and read to the jury the note of $600, which he had executed in part payment of the $1790, and had paid.
    This was all the testimony in the case.
    The court instructed the jury that if they found, from the testimony, that the plaintiff had delivered the two notes previously mentioned to the defendant, in consideration of which the defendant had agreed to pay the plaintiff $1790, they must find for the plaintiff, unless they believed the defendant had paid that sum, which could only be established by proof; and that the failure on the part of the defendant to contradict the claim set up against him, was equivalent to an admission of its correctness.
    The plaintiff below, on the refusal of the court to grant him a new trial, prosecuted this writ of error.
    
      E. G. Peyton, for plaintiff in error.
    1. It is believed the court below erred in excluding the award from going in evidence to the jury. The two notes held by the plaintiff on the defendant and others, were the only subject-matters of reference, and the arbitrators awarded that the defendant should pay to the plaintiff seventeen hundred and ninety dollars, in discharge of his liability on said notes. The award is believed to be good, although it contains other matters not mentioned in the submission. The additional matters ought to be rejected as surplusage. Taylor v. Nicholson, 1 Hen. &. Mun. 67. Where arbitrators transcend their authority, their award, pro tanto, will be void; but if that which is void affects not the merits of the submission, the residue will be good and valid. McBride v. Hagan, 1 Wend. 326; Clement v. Durgin, 1 Greenl. 300: Gordon v. Tucker, 6 Ibid. 247; Cromwell v. Owings, 6 Harris & Johns. 10; Peters v. Peirce, 8 Mass. 399; Dickey v. Sleeper, 13 Ibid. 244; Martin v. Williams, 13 Johns. 264; Skillings v. Coolidge, 14 Mass. 43; Galloway v. Webb, Hardin, 326; Cox v. Jagger, 2 Cowen, 638; Bacon v. Wilber, 1 Ibid. 117; Pomroy v. Kibbe, 2 Root, 92. The additional matters contained in the award were not necessary to the decision of the matters referred, and therefore do not affect the award upon the matters within the submission, and may well be regarded as surplusage. It is well settled, that an award may be good in part, and bad in part. If the good part is not dependent upon the bad, the award shall be sustained as to that which is good. Everything is to be presumed in favor of an award, as it is the decision of a domestic tribunal of the parties’ own selection. Richards v. Brockenbrough's Administrator, 1 Rand. 449; Armstrong v. Armstrong, 1 Leigh, 491.
    It is objected by the defendant’s counsel, that there is no evidence in the record that the arbitrators were appointed by the parties. The affidavit of the parties to stand to and perform the award about to be made upon the two notes therein specified, and the award made three days afterwards upon those two notes, together with the averment in the award itself, that they were the arbitrators, go clearly to show that they were selected by the parties. All fair presumptions shall be made in favor of an award. 1 Leigh, 491. Prima facie, an award is to be taken to have been regularly made, where there is nothing on its face to impeach it. Lutz v. Linthicum, 8 Peters, 165. The court will therefore presume that they were chosen arbitrators by the parties, and that legal presumption can only be rebutted by testimony to the contrary. It is not necessary that the award should show upon its face that the arbitrators were mutually chosen by the parties. This is matter extrinsic the award, and it is well-established law, that to impeach an award, on account of any fact de hors the award, an application, supported by affidavit, must be made to set it aside. Rigden v. Martin, 6 Harris & Johns. 403, 407; Lutz v. Linthicum, 8 Peters, 165; Cald. 177, 178. Another objection made by defendant to validity of the award, is, that it does not show upon its face that notice of the time and place of making the award was given to the parties. This fact is not necessary to be made appear on the award. This objection, like the one last noticed, could have been taken, even if true, in the court below, only by motion to set aside the award, sustained by an affidavit of the fact. Rigden v. Martin, 6 Harris & Johns. 403, 407; Cromwell v. Owings, Ibid. 10; Lutz v. Linthicum, 8 Peters, 165. Nor is it universally true, that notice should be given of the time and place of making the award, and, if necessary, the defendant cannot avail himself of the want of it, in an action on the award, when the submission, as in this case, has been by the mere act of the parties. Miller v. Kennedy, 3 Rand. 2. In this case there was no motion or affidavit made in the court below, to set aside the award. The case of Peters v. Newkirk, relied upon by defendant, in 6 Cowen, 103, is overruled in the case of Elmendorff v. Harris, 5 Wend. 516. The want of notice is there stated to be a defence in equity.
    The third and fifth objections raised by defendant, have already been anticipated, and, it is believed, sufficiently answered. It is also objected that the award was void, for want of mutuality. An award of the payment of a specific sum, by one party to the other, is final and sufficient, without awarding a release. McKinstry v. Solomons, 2 Johns. 157. An award that the defendant shall pay the plaintiff a sum of money and the costs of suit, is good, without ascertaining the amount of costs, or in what court the suit is pending; and without directing a release to be executed, or the suit to be dismissed. Macon v. Crump, 1 Call, 575; 13 Johns. 27; Byers v. Van Deusen, 15 Wend. 268. If arbitrators say in their award, as they have done in this case, that they, after examining all the business referred to them, make their award; this is a sufficient expression of their intention to make a final decision. Peters v. Peirce, 8 Mass. 398; Emery v. Hitchcock, 12 Wend. 156.
    The doctrine, by which awards are required to be mutual, is not applied in the strict sense, in which it was formerly taken. Harrel v. Alexander, 3 Rand. 94. An award, ordering the payment of a sum of money, carries in itself a mutuality, as it must be held to be in satisfaction of the matter submitted. Weed v. Ellis, 3 Caines, 254; Gordon v. Tucker, 6 Greenl. 247; Gaylord v. Gaylord, 4 Day, 422; Kunckle v. Kunckle, 1 Dallas, 364. Courts construe awards with great latitude, and according to the intention. Grier v. Grier, 1 Dallas, 174; Innes v. Miller, Ibid. 188, 365; Gonsales v. Deavens, 2 Yates, 539; Mulder v. Cravat, 2 Bay, 370, 450; Joy v. Simpson, 2 N. Hamp. 179. Every reasonable intendment is to be made in favor of an award. Richard v. Brockenbrough, 1 Rand. 449; 
      Coupland v. Anderson, 2 Call, 106; King v. Cook, Charl-ton, 287; Archer v. Williamson, 2 Harris & Gill, 67; Smith v. Miller, Coxe, 16; Karthans v. Terrer, 1 Peters, 222; Fryburg Canal v. Frye, 5 Greenl. 38.
    H. C. Bennett testified, that on the 21st October, 1840, being only two days after the award, that the defendant tacitly admitted that he owed the plaintiff the sum of seventeen hundred and ninety dollars, and that plaintiff delivered up the two notes which had been the subject of reference to defendant and witness, and that they were then torn up and destroyed; and that plaintiff took a note for $600 from defendant, which was to be credited on the award of $1790. The award was competent evidence to go to the jury under the first count, and the court therefore erred in excluding the same from the jury.
    2. The verdict was • contrary to the evidence. H. C. Bennett testified, that it was understood by the parties, that the defendant owed the plaintiff, according to the arbitration, $ 1790, and that he then executed his note to plaintiff for $600, part of the awarded sum, and that it was also understood, defendant had an account against the plaintiff for about that amount. If, as Bennett stated, Powell owed Gibson $1790 at the time that defendant executed his note for $600 to the plaintiff, the balance must have remained of $1790 due to the plaintiff, and that the account of the defendant against Gibson would have about settled the note. The residue of the award, after deducting the note, would have been $1190, for which the plaintiff was clearly entitled to a verdict, with interest, from the time of making the award. J. B. Mendenhall also testified, that in November, 1841, defendant acknowledged his indebtedness to the plaintiff, but that defendant complained of the hardness of the times, and did not know when he could pay. The defendant filed no bill of particulars or offsets, as required by law, but read the 8600 note to the jury, which could only have been deducted from the amount sued for, and a verdict should have been rendered in favor of the plaintiff for the balance, which would have been $1190, and interest, from the 19th October, 1840. How the jury could have arrived at such a verdict as they rendered, from the evidence in the case, I am entirely unable to divine. And the court erred in permitting the note to be read by the defendant to the jury, without having been filed as an offset, and also in not granting a new trial.
    The case of Brown v. Hankerson, 3 Cowen, 70, has no analogy to the present case. The court in that case say, that the part of the award that was good was dependent upon that part that was bad, and thereby the whole was void. The law in that case was within the submission, and formed the consideration intended by the arbitrators for the money, which they directed the defendant to pay to the plaintiff, and for the recovery of which the action was brought. The delivery of the farm was an act to be done by the plaintiff, which constituted the consideration for the money to be paid by defendant, and the farm not being described rendered the award bad in toto. In the case at bar the land, mills, &c., were not within the submission, and there was nothing to be done by the plaintiff. The reference was to ascertain how much the defendant was to pay to the plaintiff, upon the two notes which the plaintiff held against him and others, and the arbitrators awarded that the defendant should pay the plaintiff for his part of the notes referred, $1790, and also that a third person should make to the plaintiff a deed to certain mills. These things were to be done for the plaintiff, and nothing by him for the defendant. The mills, even if necessary to the validity of the award, are sufficiently described by reference. The award in this case has, however, been performed in every particular, excepting the payment by the defendant, of the sums sued for in this action. It is not for the defendant to object to an award for uncertainty in any part thereof, which is solely intended for the plaintiff’s benefit. In short, it is believed, the award is good within the submission, and must be sustained by a liberal construction.
    
      B. and W. P. Harris, for defendant in error.
    It is assigned for error in the case, 1st, that the court below erred in rejecting the award offered in evidence by the plaintiff on the trial.
    The award was properly excluded for several reasons.
    1st. It was not an award in the matter in controversy. The declaration alleges that the matter in controversy and the matter submitted, was two notes for $3595 each, and the award which is set forth in the bill of exceptions, was concerning two notes for $3575 each ; this objection, though technical, becomes material when taken in connexion with the fact, that no evidence was introduced to connect the award with the submission, or to show what was submitted. The submission, which was read in evidence, does not describe the matter in controversy, and there was no proof that the award which was offered was the one which the defendant bound himself to perform. Nor does it appear that the defendant was notified of the award, or that he acquiesced in it, or that the individuals whose names appear signed to the award, were selected to arbitrate the matter of difference.
    2d. The award is void on its face. 1st. It is not mutual. It does not require the plaintiff to do anything. He is not required to release the defendant from the notes, or to deliver them up to be cancelled. 14 Johns. R. 302.
    2d. It is void for uncertainty. It requires the defendant to confess judgment with security, without defining the nature of the security. The case of Brown v. Hankerson, 3 Cowen, 70, and the cases there cited, are decisive on this point, and are in strict analogy to the present.
    It is true, that an award may be good as to part, and bad as to a part; but in all such cases, that which is good is separable from and not dependent upon that which is bad; as in the cases of McBride v. Hagan, 1 Wend. 326, and Stanly v. Campbell, 8 Cowen, 103. In the case last cited, the provision in the award was to pay money or give security; and it differs from the case cited in Brotan v. Hankerson, which are similar in all respects to the one under consideration. In the present instance, the award provides that the defendant shall confess judgment with security for $1790, awarded to be due, and that successive stays shall be given on such judgment; thus making the increase of security an equivalent for the extension of time. It is clear, therefore, that that part of the award which awards the payment of money, is materially qualified and affected by that which prescribes the mode of payment, and to strike out that portion of the award, would be to defeat the plain and obvious meaning of the arbitrators.
    3d. It is void in requiring acts to be performed by persons not parties to the award, and in awarding the conveyance of real estate without describing it. 13 J. R. 264; 3 Cow. 70.
    It is also assigned for error, that the court below refused to permit two of the arbitrators to prove an additional stipulation as part of their award, which was not contained in the award itself.
    Such evidence is clearly inadmissible. The testimony of arbitrators has been admitted to prove what was submitted to them, but in no case has such testimony been admitted to alter, vary, or enlarge the award which has been made and delivered in writing. Newland v. Douglass, 2 J. R. 62.
    The remaining error assigned is, that the court refused to grant a new trial.
    The only testimony material in the case was that of Bennett, a witness introduced by the plaintiff, who stated in substance that the plaintiff claimed that the defendant owed $1790, provided that the plaintiff would deliver up certain notes to be can-celled — that this claim was made in the presence of the defendant, who did not deny it, and the notes were at the same time delivered up, and were torn up by the parties; that it was understood and admitted by the parties at that time, that the defendant had an account against the plaintiff amounting to $600, and that the defendant at the same time executed his note to the plaintiff for $600, which was understood to be in part of the $1790. That both parties seemed well satisfied with the adjustment.
    The note for $600, above referred to, was introduced and read to the jury by the defendant, without any objection on the part of the plaintiff, who on the trial admitted that it had been paid in part of the $1790. Admitting that the testimony of Bennett established an implied admission by the defendant of his indebtedness, yet the same witness proves that that admission was accompanied by an acknowledgment by the plaintiff, that he owed the defendant $600, and the execution of the note for $600, which on the trial the plaintiff admitted had been paid. So that the amount of the plaintiff's demand against the defendant, according to his own admission and the testimony he introduced, was reduced from $1790 to $590. This is the necessary inference from the proof. The fact that no offsets were filed by the defendant, cannot avail the plaintiff now. The object of filing offsets is to notify the plaintiff of the demand; but here the plaintiff, by his admissions on the trial, and by proof introduced by himself, established payments and offsets, which, had the defendant attempted to introduce, he might have had rejected, and he cannot complain if the jury gave him only what he proved to be true. So that on neither of these grounds can the plaintiff expect a reversal of the judgment.
   Mr. Chief Justice ShaiiKey

delivered the opinion of the court.

This action was founded on an award. The declaration states, that a difference having arisen between the parties concerning two promissory notes held by Gibson, and made by Harmon Powell, Henry Powell, and Henry C. Bennett, each for the sum of $3595, subject to certain credits, it was agreed that the subject of dispute should be submitted to the arbitration of John McIntosh, James Dear, and John Bishop. That on the 19th of October, 1840, the arbitrators returned their award that the said Harmon Powell should pay to Gibson the sum of $1790. The jury found a verdict for the plaintiff for $637 30. During the trial, the plaintiff read in evidence without objection the submission, which was in the form of an affidavit to abide by the award, signed by L. C. Gibson, H. Powell, and H. C. Bennett. He then offered the award, and offered to prove in con-nexion with it, that it was considered as part of it, agreed to by the parties, that the plaintiff should deliver up the two notes to be cancelled. But the court ruled out the instrument on the ground that it was no award, and also the proof offered in explanation. This is the first error complained of, and the question depends upon the face of the instruments.

The submission is very vague. Two promissory notes were stated to be the matter of difference, of which Gibson was the holder, and Henry Powell, Harmon Powell, and H. C. Bennett were the makers, but they were not otherwise described, nor were the arbitrators named. This, however, was read without objection. The award states the notes to be for the sum of $3575 each, subject to certain credits, being for twenty dollars less than the declaration describes them. The arbitrators seem to have estimated the amount of the notes and interest, and also the credits and the interest on them, and then to have struck a balance, amounting to $6667 97. They then proceeded to direct how and by whom this sum should be paid, as follows, to wit: “ James Powell to make a deed to Lewis C. Gibson, for the mills formerly owned by Henry Powell, the appurtenances thereto, timber, wheels, and blacksmith’s tools, at $3983.” Then follows in figures this sum, to wit: “ $2685,” without any note of explanation, though it was probably intended to indicate the balance that would remain of the amount of the notes and interest, after deducting the $3983, the price fixed on the mills. Of this balance of $2685, Harmon Powell was to pay $1790, and H. C. Bennett the sum of $895; thus the whole sum of $6667 97 was to be paid. The award then proceeds to dispose of a quantity of lumber at the mill, and also a stock, of hogs, valued in the aggregate to the sum of $408, to be divided between Harmon Powell and Bennett. It was further provided, that Powell and Bennett should confess judgments with security, on which the executions were to be stayed for a certain time. This paper looks more like a skeleton, or memorandum from which an award was to be drawn, than it does like the award itself. It certainly embraces matters not included in the submission. By the terms of the submission, the arbitrators were confined to the differences which existed in reference to the two promissory notes; but the award directs that James Powell, a total stranger to the submission, should pay a large portion of the balance due on the notes, by making a deed to certain mills, with the appurtenances ; and that the remainder should be paid, part by Harmon Powell, and part by Bennett. And it also disposes of a quantity of lumber and a stock of hogs. An award must always be in strict accordance with the submission, and not extend to subjects not submitted, nor to strangers to the submission. It must also be certain and mutual. ICyd on Awards, 91, 103, 129. And if it lack any of these important requisites, it is void. The arbitrators act under a special authority for a particular purpose, and the authority must be strictly pursued. But it is insisted that an award may be good as to the matter actually submitted, and bad as to the matter not submitted, provided the part which is good can be separated from, and exist independently of, that which is bad. The authorities cited fully sustain the counsel in this position. These decisions are predicated on the principle that it is the duty of the courts to sustain awards, when it appears that both parties have the full benefit of the matter submitted, and of what was intended for them by the arbitrators, although the award may contain something which is illegal.' But in this instance it is answered by the opposite counsel, that the matters awarded cannot be so separated as to leave any part good. This objection derives great force from a comparison of the award with the submission. The submission was made by H. Powell, H. C. Bennett, and L. C. Gibson. Whether the “H. Powell” who joined in the submission was Harmon or Henry, does not appear, nor is it explained. The award embraces three Powells, when only one entered into the submission. The power of the arbitrators' extended only to the adjustment of a dispute in regard to two promissory notes, but they awarded that a stranger to the submission should pay part of the sum found due, by making a deed to real estate. In this, then, the award was void. The amount that was to be paid by Harmon Powell, constituted only a part of the whole sum, and it refers to and depends upon the amount that was to be paid by James Powell, by means of the conveyance. The two provisions are inseparable. It cannot be supposed that one would have been awarded, but in view of the other. It is said that if an award be void only as to part, but good as to the rest, it is not competent to him who is to perform it to object to the whole on account of that which is void, unless the opposite party could object to the performance of his part, on account of the want of a remedy to enforce the performance of that which was void on the other. Kyd on Awards, 166. That is the case here. Gibson had no remedy as to the land directed to be conveyed to him, and hence Powell may object to the award. Without adverting then to the other objections taken to the award, we think, for the reasons already stated, it was void, and properly excluded under the special count on the award.

But there are two other counts in the declaration; one in which it is averred, that in consideration that the plaintiff would deliver up the two promissory notes to the defendant, that he the defendant would pay to the plaintiff the sum of $>1790, with an averment that the notes were delivered up to be cancelled ; and also a count for money lent and advanced. If there was no award, had not the plaintiff a right to recover on these counts, provided his proof sustained them '? He had relied upon a special contract, but failed altogether in that respect, because his contract was void. The rule is, that a recovery may be had under the common counts, if the party has failed altogether in his right to recover on the special count, provided the case be such that supposing there had been no special contract, he might still have recovered under the common counts. 2 Phil. Ev. 108. The second count is indeed also a special count, and if the contract as stated be proven, or if the proof be such as to justify a recovery under the money count, the plaintiff may still have a right to recover. Even an award, void as such, is sometimes admitted as evidence of an account stated. But apart from the award, the proof was sufficient. It was testified by Bennett, that about the 21st of October, 1840, he heard a conversation between plaintiff and defendant, in which the plaintiff claimed that the defendant was indebted to him in the sum of $1790, provided the plaintiff would give up to the defendant and the witness the two notes already described. The defendant did not contradict the claim, and the plaintiff did thereupon give up the notes, which were then destroyed by the parties. That it was understood that Powell owed Gibson the sum of $1790, and that he did then execute a note of $600 to Gibson. It was also admitted, that Powell had an outstanding account against Gibson, to about the amount of $600, and that both parties seemed pleased with the settlement made. The subject of this indebtedness was afterwards mentioned to Powell by another witness, and he then did not deny it, but stated that he could not then pay, and did not know when he would be able to do so. The witness, Bennett, slated that he had paid his portion of these notes. By giving up the notes under this agreement the right of action thereon was extinguished, and they constituted a sufficient consideration to sustain the new contract, which was fully established by the evidence, as set out in the second count. But it is insisted that the verdict is still right, because the defendant had paid the $600 note, having produced it on the trial, and that besides this sum, it was 'proven that the plaintiff owed him six hundred dollars on an outstanding account, and that by adding these two sums together, the plaintiff's claim is reduced to about the amount of the verdict. But it is to be remarked, that the jury was not authorized to allow the amount of the unsettled account as an offset, because no such thing was claimed. The defendant had not filed with his plea the particulars of any set-off, as he was bound to do if he intended to rely on such a defence. If this had been done, it is possible the plaintiff might have answered it by showing that the note had been given up in discharge of this outstanding account, or he might have been able to show that it was settled in some other way. A mere set-off, as this outstanding account was, should never be allowed by the jury, unless it is properly claimed by the pleadings. The jury, in this instance, must have taken this outstanding account into their estimate. There is no other way of accounting for their verdict. We think that a new trial should have been granted on the plaintiff’s motion, and for this reason the judgment must be reversed, and the cause remanded,  