
    Harker against Hough.
    In an action of debt on a bond conditioned for the performance of an award, tbe defendant pleaded, that the arbitrators had refused to hear or investigate a certain claim which he set forth, and which he averred was within the submission; this plea on demurrer was adjudged good.
    This was an action of debt, on a bond conditioned for the performance of an award. The defendant sets forth, on oyer, the condition of the bond, which was, that if the defendant should stand to and keep the award of W. L., D. L., and J. B., arbitrators, indifferently chosen between the partios, the obligation should be void; — -the defendant then admits the obligation : he pleads, that the said arbitrators did, within the time limited, publish, under their hands and seals, a certain pretended award upon the matter submitted to them, which he sets forth' verbatim : yet aclis non, because, protesting that the award is illegal and insufficient, he says, that he gave notice to the said arbitrators of a claim which he, the defendant, had against the plaintiff, which was unsettled, and offered sufficient evidence in support of the same, and did desire the said arbitrators to receive and hear the same, and to arbitrate and determine the said claim which said claim was of a matter in dispute between the parties, and was submitted, by the parties, to the arbitrament and final end and determination of the said arbitrators ; yet the said arbitrators did refuse to take upon themselves the arbitrament and determination of the said claim, and did refuse to hear the evidence in support of the same; and so, he says, the arbitrators did refuse to take upon themselves the burthen of the award, on *the matters contained in the condition of the said writing obligatory, and did make no award thereon, by reason whereof the said award is void and of no effect in law. He avers, also, that the said arbitrators, or any of them, made no further or other award than the one set forth. There were six other special pleas pleaded by defendant, which it is immaterial to state. To the first plea the plaintiff demurred, and the defendant joined in demurrer.
    
      M’llvaine, for the demurrer.
    The simple question raised upon these pleadings, is, whether the defendant can plead, in avoidance of the award, a matter dehors the award, to wit, that they refused to take upon themselves the arbitrament of a matter contained in the submission, and to which, their attention was particularly called ?
    
      It is a fundamental maxim in the law, that the parties are concluded by the award, .and -shall not be admitted' to-contradict what these judges of their own choice have done, or to set aside the decision they have made, without proof of gross fraud or partiality. The arbitrators, in their award, expressly set forth, that “ having taken upon us the burden of said award, and having 'met and heard the several allegations offered by both parties, and due consideration thereon had, do award and order." Here, then, is a distinct averment, that they did take upon themselves the burden of the award, which the plea contradicts ; that they did hear and duly consider the allegations of the parties ; that they did award and order, which is in the same manner denied by the plea. On the same ground, might the.party contradict any other part of the award. In Snelling v. Farmer, (1 Str. 647,) Eyre, C. J., refused to admit any evidence to shew that the arbitrators had omitted to take into consideration a particular matter-, the award and release having general words sufficient to include it, even though the arbitrators themselves were the persons to prove the facts. So in Wills v. Maccarmick, (2 Wils. 148-9,) the coprt expressly say, that nothing dehors the award can be given in evidence to overturn it.
    
      Griffith and B. Stockton, contra.
    The defendant pleads, that the arbitrators refused to investigate the matter submitted to *them, and .as the plea is demurred to, as insufficient in law, the fact is thereby admitted. The question then is, whether that can be a lawful and binding award to which an objection of this kind exists. In Barnes v. Greenwell, (Cro. El. 858,) the court say, “ if arbitrators award for one thing, and .say they will not meddle with the rest, all is void, because they have not’pursued their authority.” If a. defect of this -kind vitiates the proceedings of the arbitrators, this is the only mode in which the party can avail himself of the exception; for the rule of correct pleading requires that ho should first plead the award, and also the matter whereby it was void. 5 Bac. Abr. 450 ; 1 Wils. 122, Harding v. Holmes; Sir T. Ray. 94, Morgan v. Man.
    
    from the terms of the submission in this case, it was clearly conditional. Unless the arbitrators chose to undertake all the differences submitted, they had no authority. The intention of the parties was, to have all the disputes between them terminated, and the end is completely defeated, by leaving an important claim unsettled. When the submission is made in this conditional manner, unless the award include all things, the party is not bound to perform any. Risden v. Inglet, Cro. El. 838; 8 Co. 193, is to the same effect.
    
      M’llvaine, in reply.
    
      
       As to the effect of these words, see 2 John. 57, M’Kinstry v. Solomons.
      
    
    
      
       See 2 Saund. 84, c. note (1); but see Barlow v. Todd, 3 John. 367; Munro v. Alaire, Caines 320.
    
   Per Curiam.

The matter set forth in the defendant’s plea is a conclusive bar to the action. On a demurrer, the fact must be presumed as pleaded; and, if so, there cannot remain a doubt that the award is a nullity, and that the defendant has availed himself of the defect in a legal manner. There must be judgment for the plea.

Judgment for defendant. 
      
       See Richards v. Drinker, 1 Halst, 307; 36 East's Rep. 58; Cald. on Arb. 201.
     