
    *Price v. Via’s Heirs.
    July Term, 1851,
    Le-wisburg.
    (Absent Cabeli., P.)
    1. Pleading and Practice — Action on Award' — Plea— Case at Bar. — In an action on an award, if upon the face of the submission, it does not clearly appear that the award does not cover the whole matter submitted, a demurrer to the declaration will not be sustained ; but the defendant will be left to his plea of "no award to which the plaintiff may reply and shew that the award does cover the whole matter submitted.
    2. Same — Same—Same—Same.—So if the parties may have waived a decision on one branch of the matters submitted, and requested the arbitrators to decide the other matters, though this is not stated in the declaration, a demurrer will not be sustained ; but the plaintiff will be allowed to reply the facts to the plea of "no award.”
    This was an action of covenant brought by Barnett W. Price against James Via and others in the Circuit court of Patrick county, and removed from thence to the Circuit court of Montgomery. The declaration was upon a covenant by which the parties bound themselves in the penalty of 600 dollars, to submit certain matters in dispute between them to the award of arbitrators, and to abide by their award.
    The covenant was entered into in August 1841, and was in substance, that whereas a controversy has arisen between the parties in relation to a certain tract of land claimed by the heirs of William Via deceased, they claiming the land amounting to two hundred and ninety-one acres, under an entry and patent to John Ingram sen’r deceased; and Price claiming under a large survey made by John Ward previous to the one made by Ingram, and the parties being then at law about their respective rights to said land, covenanted with each other *to dismiss the suit and refer the matter to live disinterested men chosen by the parties, viz.: Thomas Penn, &c., &c., and it is agreed that these men so chosen for the purpose shall rae»t on the land on a day appointed by the parties; and a surveyor shall run the land according to the papers which may be produced by the parties; and after the parties have produced their evidence, and the same has been heard by the arbitrators, they shall decide to whom the land belongs in law and equity; and their judgment shall be final between the parties. And the parties agree that the costs of the suit aforesaid, and of the arbitration, shall be paid by the losing party. And the parties further agree that whereas the patent the heirs of William Via claim under seems defective in respect to the proper courses to cover the two hundred and ninety-one acres claimed in the patent, and the said Price has laid a warrant on that part of the land which the patent seems not to cover, and contends against the said heirs of William Via for the right to said land, the parties jointly agree to leave the same matter to the aforesaid arbitrators to be decided by them, after having the same surveyed and hearing the evidence they may think proper to hear. And the parties bind themselves to abide by the award of the arbitrators, and that the expenses of the survey and the compensation to the arbitrators shall be paid by the losing party, who shall relinquish all right, title and interest in said lands, so far as to comply with the award of said arbitrators.
    The arbitrators proceeded to hear the case and made an award, which is as follows, viz. :
    We the undersigned arbitrators mutually chosen by Barnett W. Price sen’r on the one part, and the heirs of William Via deceased on the other part, to settle all matters of difference between the parties in a certain writ of right depending in the Circuit court of Patrick county, in which the said Barnett W. Price is demand-ant *and the said heirs are tenants, have after hearing all the evidence adduced by both parties, agreed unanimously, that the said B. W. Price has more right to recover the land demanded by him than the said heirs have to hold it; and that he therefore recover of them the land demanded by him in his said writ as he demands it, and his costs about his suit by him expended. Given under our hands and seals this the 14th of September 1841: And the award was signed and sealed by the arbitrators.
    The declaration set out the submission and award as above given, and laid the breach of the covenant first in the refusal to abide by the award as a final decision of the suit for said land; but that they had always since the rendering the award defended, and continued to defend, the said suit; to settle which the said covenants and award were made; second, in their failure to pay the costs of the suit, survey and award. And third, in their failure to relinquish all right, title and interest in the land aforesaid.
    The defendants appeared and craved oyer of the covenant and award, and then demurred to the declaration; and stated as causes of demurrer, that the award set out in the declaration does not correspond to the submission contained in the covenant, but varies therefrom in this, that the said award is parcel only of the things submitted to arbitrament by the covenant aforesaid.
    The plaintiff joined in the demurrer; and when the cause came on to be heard the Court sustained the demurrer and gave a judgment for .the defendants. Whereupon Price applied to this Court for a supersedeas, which was awarded.
    Eskridge and John T. Anderson, for the appellant, and Staples, for the appellee, submitted the case.
    
      
      See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 681.
    
   *AEEEN, J.,

delivered the opinion of the Court.

It seems to the Court here, that upon the bond of submission taken' by itself and without reference to the record of the suit referred to in the condition, it does not clearly appear that both the subjects referred to the arbitrators were not involved in and embraced by the controversy pending between said parties in Court, and that the plaintiff in error was not asserting in said action a title to the whole of the said tract of land of 291 acres, partly in virtue of the Ward survey, and in part under the warrant referred to. If such were the fact the award covered the whole matter referred to the arbitrators; and whether such was the fact, or if not, and the latter branch of the submission was of an independent controversy not involved in the suit, whether the parties may not have waived a decision thereon, and requested the arbitrators to make their award on the subject in controversy in said suit alone, are matters which can only be shewn by proper pleadings in the cause; and which the plaintiff in error should have an opportunity of shewing by his replication to a plea of no award; and that it was not incumbent to set out such matters in. his declaration; the award itself on its face purporting to be of the whole matter submitted. It is therefore considered that the judgment of the Circuit court is erroneous, and the same is reversed with costs. And this Court proceeding, &c., it seems to the Court that the declaration and matters and things therein contained are sufficient for the plaintiff to have judgment. It is therefore considered that the demurrer to the declaration be overruled; and the cause is remanded to said Circuit court, with leave for the defendants to plead, and for further proceedings: Which is ordered to be certified.

DANIEE, J., dissented.  