overruled the objection, and permitted the award to be read to the jury.

*380By way of defence to the action, the defendants offered testimony to prove that the book accounts were in controversy, and that the arbitrators did refuse or neglect to arbitrate upon, them. The counsel urging, that if this matter was proved, it established the truth of the plea of no award, because it shewed that the award set up was illegal,, and consequently a nullity.

For the plaintiff, it was objected, that such evidence was inadmissible :

1. Because it was testimony dehors the award.

2. Because it was a departure from the plea.

1. It is clear law, that when the parties voluntarily submit their differences to the decision of arbitrators, they cannot be relieved against the award on account of any extrinsic circumstances, by setting them up as a defence to an action on the'award or the submission bond. He cannot give in evidence any thing to impeach the conduct of the arbitrators. The award is a determination by persons selected by the parties with due circumspection, and no evidence can be admitted to impugn its correctness which is drawn from a foreign source. Kyd 226, (327-8). In Wills v. Maccormick, 2 Wils. 148, evidence to prove the partiality of the abitrators, was refused in an action of debt on an award. On a motion for a new trial, the court said, “ an award is a judgment by judges chosen by the parties themselves, and a jury, in a special verdict, cannot find any matter or fact dehors the award; by parity of reason nothing dehors the award, as partiality can be given to them in evidence.”*

2. This evidence was inadmissible under the'plea of no award, but is a manifest departure. The defendant has pleaded, that no award was made; an award is produced, and the court have pronounced it to be on the' face of it legal, by permitting it to go to the jury. The defendant would now go into a special allegation of fact, and shew that *381the award is illegal because the arbitrators would not decide upon all the matters in controversy. This ought to have been specially pleaded, if it amounts to a legal defence, but we cannot be called upon, on the present issue, to examine the conduct of the referees. We have proved the award, which is the only question before the jury, and have therefore done all that the law imposes upon us. 3 Black. Com. 310.

For the defendant, it was contended, that the evidence was proper and legal. The plaintiff has declared upon the bond, the defendant craved oyer of the condition, which appears to be, that the arbitrators should make an award upon the premises or the matters submitted to them. The plaintiff had set out no award in his declaration, and the defendant pleads there was no award. Under the practice act of this state no replication was admissible, and the pleading^ upon the roll end with the plea. Every thing subsequent to this is done ore tenus. The plaintiff, by way of replication, has produced the award, and proved it to the jury, and assigned a breach. Under these circumstances, we contend, that we are at liberty to give in evidence any and every fact which tends to prove that the paper thus shewn to the jury is not an award in law. This is the question before the court, not whether a paper has been signed by the arbitrators which they may have thought proper to call an award, but whether such an instrument has been executed, as the law will regard, as a legal instrument binding upon the parlies.

The point already decided by the court is not conclusive as to this question. The court has said, that this is a general submission, but the ita quod ties the arbitrators up to settle all the matters contained within it. The intendment is, and the cases cited by the opposite counsel on the former question go to prove this position, that every thing was settled of which the arbitrators had notice, and this intendment is to be supported until, like every other presumption of the law, it is contradicted by testimony. We do not violate this *382principle by introducing testimony to shew that this presumption fails in the present case. We offer to prove that this is no “ award upon the premises,” because the arbitrators refused or omitted to settle a part of the matters submitted after notice and request.

Evidence of this kind cannot properly be said to be dehors the award, until its effect is ascertained. An objection of this kind is a begging of the question; it assumes for its foundation the very fact in dispute, by terming this paper an award. The fact offered to be proved will shew that no award has been made. •

It appears, however, on the face of the submission, that the accounts between the parties were actually left to the determination of the arbitrators, and it appears, upon the face of the award, that these matters were left unsettled. In answer to this objection it is alleged, that perhaps these accounts were not in dispute, a presumption in the face of the submission, and which we offer to prove is in direct contradiction to the fact. This evidence is in conformity with the truth, and 'does not contradict any averment in the award.

The authorities cited" do not come up to" this question. They shew that no averment shall be made to contradict what appears on the award. Ormelade v. Coke shews that the defendant might havé pleaded any matter in avoidance , of the award, and so is Kyd 116, (174). Wills v. Maccormick goes no farther than to shew that no matter shall be given in evidence tending to criminate the arbitrators themselves, because it would affect third persons, but it does not contravene the defendant’s right to plead matter in avoidance of the award,

The question is not, whether this matter is pleadable,- but whether you can give it in evidence under your- plea of no award.

*383Ogden. We have pleaded no award, and we offer to support this plea, by proving a fact which shews that no award wars made. In the reason of the thing, this evidence is not a departure. It would have been ,'both contradictory and absurd, had we admitted in our plea that an award was made, and then alleged matter shewing there was no award. No precedent can be found of any such plea.

You might have admitted and set out an award in fact.

Ogden. I know of no such distinction; no award in law is no award in fact. In an action of covenant or debt on a bond the plea of non est factum denies the deed, both in law and fact. It would be altogether novel to admit a deed in fact, and then plead the special matter in avoidance. The manner of pleading in an action on an arbitration bond is concisely stated in Kyd 192, (280). The plaintiff declares as on a common bond, and after oyer of tho condition, the defendant pleads no award; the award is then set out in the replication, and the breach assigned; and upon this the ■whole question arises, as on an original declaration. The defendant then rejoins no such award, or he demurs.

(without hearing a reply.) The practice act makes no difference as to this question ; it never was understood to have the effect of altering the nature or the consequences of the plea which might be pleaded. No departure is allowed which is contrary to the ordinary rules of law, but the pica must be virtually adhered to; and the party cannot be permitted to introduce evidence to vary his grounds of defence. In this case the defendants have pleaded no award, and the question in issue is, whether this fact be true or false ? It is taking altogether a new defence to admit an award to be actually made, and then avoid it by some extraneous and collateral matter. Nullum *384feoerunt arbitrium can only be used to bring the legal construction of the award before the court. • The case in 5 Bad. Abr. 450, is clearly in point and decisive of this matter. It is there said, in debt upon an obligation for performance of an award, the defendant pleads no award; the plaintiff rejoins and shews the award and breach if the defendant rejoin and shew that it is void, either because there was an award of mutual releases to the time of the award, or that the award was all on one side, or that it was not made of all matters submitted, or the like, in all such cases the rejoinder is a departure; for no award pleaded, is no award at all, either in fact or in law, which is not to be maintained by shewing the award to be void, but he should first plead the award, and also the matter whereby it was void.* The evidence is clearly inadmissible and must be overruled.

The defendant /then'offered to prove payment of the '£5 10s., which was overruled by court without argument, who held payment or performance, was a flat contradiction to the plea.

A special verdict was found by the recommendation of the court, setting forth the submission and award, and the case was afterwards argued upon the matters arising upon the face of it.

delivered the opinion of the court. In, -this case a special verdict was taken, by consent, for the plaintiff, subject to the opinion of the court. It has been ■ elaborately argued on both sides, and now stands for our judgment.

It is unnecessary to state the case further than to mention that it is an action of debt’ on a bond conditioned for the performance of an award, and the principal questions arising are, as to the validity of this award.

In my opinion the case depends upon two questions.

*3851. Whether the award in question bo good in loto, or in part ? if good in part, whether it bo good in that part which the breach is assigned ? 2. Whether, as the cause stands before the court, it is competent to the defendants to avail themselves of the objections that have been taken ? or, in other words, whether they have not precluded themselves from objecting to the legality of the instrument by the plea of no award ? *

In examining these questions, 1 shall reverse the order in which I have proposed them, and consider the second in the first place, because if the cause stands before the court in such a situation that the objections which have been urged are not open to the defendants, the dispute is at an end, and judgment must be entered for tho plaintiff.

When it was first contended, that the party was foreclosed from availing himself of the objection, I confess it struck me as a novel doctrine, without any foundation in law or practice, and at variance with the former usage of our courts.

1 then thought, and still think, that as the practice act has ordained that tho cause shall be at issue on a plea filed, and has prohibited either a replication or demurrer in any case,† every defendant had a right, on a plea filed, to avail himself of all errors in law, arising on the face of the award, which could have come in question upon a general demurrer; or, that he had a right to take up. the cause, as if a replication had been filed, and at his election, regard it as standing upon either of these grounds.

This idea has unquestionably been urged at this bar, and has been repeatedly practiced upon. Be this, however, as it may, I feel no difficulty in saying, that, in my opinion, tho legislature, by prohibiting any pleadings upon the roll *386beyond the defendant’s plea, never had it in contemplation to vary the rights of the parties to a suit; to prevent a party from availing himself of every legal defence against the plaintiff’s claim; to oblige him to the payment of money upon an award, which was an absolute nullity in law, or when he had a defence to it which could not, consistently with the rules of pleading, be introduced to the notice of the court in his plea.

Ho doubt can be entertained but that a defendant may, on demurrer, avail himself of any error in law, appearing on the face of an award for the non-performance of which the suit is brought. It is in this manner that the validity of awards in point of law, for the most part, is brought into question before the court. It is scarcely necessary to cite authorities to establish this principle; those which have been referred to by the plaintiff on the argument clearly settle it. On principle, then, there ought to be as little doubt, that ■whenever on the whole record it is apparent that the plaintiff ought not to recover in the suit which he has brought, he never can have judgment. In the present case, the action is brought on a bond conditioned for the performance of an award; on oyer prayed, the defendants plead no award : the award is produced, and a breach assigned in the non-payment of a sum of money, which is therefore the foundation and the gist of the action. Ho replication nor plea can possibly preclude the defendant from availing'himself of the legal defects of an award which absolves him from any obligation to perform it. He may do this, even after verdict against him, by motion in arrest of judgment, let his plea be ever so frivolous or untrue. He may bring the validity of the award before the court, before the trial, since the practice act, by a motion; before the alteration which was introduced by that law by a demurrer.

In Baylie v. Taylor, Cro. Eliz. 899, it is said, in debt upon a bond conditioned for the performance of an arbitrament, the defendant pleads nullum, feeerunt arbitrium,: the *387plaintiff'saitli, talc fecerunt arbitrium; that is not sufficient without shewing in what point it is broken, so as the court may see whether he hath just cause of action. The same ■doctrine is assorted in Griffin v. Spencer, Ib. 321.

In Barrett v. Fletcher, Cro. Jac. 220; Yelv. 152; See Meredith v. Allen, 1 Salk. 138, it was argued, that the obligation in a case of this kind is not for debt, but is guided by the condition; and the court ought to be satisfied that the plaintiff had good cause of action, otherwise they cannot give judgment; and of this opinion was the court.

12 Mod. 635, is to the same point. It was debt on award; defendant sets forth a void award, and pleads performance, upon which issue is joined and verdict for plaintiff. It was moved in .arrest of judgment, and judgment ■was arrested.

It is unnecessary to make many comments upon these authorities. I shall content myself with remarking, that according to my understanding of the law, let the defendant plead what he may, whenever the plaintiff sets forth an award and assigns a breach, if it appears upon the record that the award is bad in tolo, or in that part in which the breach is alleged, the plaintiff cannot have judgment. This is the general doctrine of the law, and not peculiar to awards, for, in every case, if upon the whole record the plaintiff appears not to be entitled to the action, it matters not how much the other party may misplead, judgment never can be given for him. The whole doctrine of departure is therefore inapplicable to the case, for the defendant, before judgment, never is estopped from shewing that the cause of complaint does not afford a legal ground of action.

II. As to the second question. The counsel for the plaintiff having declined arguing the exceptions taken to all the items of the award, but confining themselves almost exclusively to the fifth, and the breach assigned in the non-payment of the £5 10s. as sufficient to sustain their action, I shall only remark, that as it appears to mo at present, these *388items are all manifestly defective. Ho intendment can be made to support them; they are neither final nor certain. They are not mutual, for throughout the whole award there is no one thing ordered to be done for the benefit, or in favor of the defendants, excepting that they are allowed a free passage up and and down a navigable river; a privilege to which I think every inhabitant of New Jersey is legally entitled, independent of any award, unless there is some particular law vesting the right exclusively in Richards,' of which we have never heard; which certainly has not been intimated on the present argument, and is not to be presumed. Even this privilege is allowed only upon the performance of a condition which is onerous and burthensome, the supporting of banks, which was a condition that cannot and ought not to be annexed to the exercise of a right existing by law, independent of any determination of these arbitrators. An award of this kind'could not bear an argument.

After these general observations, I proceed to consider the question arising on the fifth item of the award, and the breach that has been assigned in the non-payment of the money therein mentioned. If that breach will not support the action, the plaintiff cannot, at all events, have judgment; but a non-suit ought to be entered against him.

This fifth article is as follows: “Fifthly and lastly — we do award, that the Atsion Company do pay unto William Richards the sum of five pounds, ten shillings, being the expense of a former arbitration, and further costs having accrued respecting the premises, exclusive of the book accounts of the said parties.”

With respect to this article.of the award it is objected, that an award ought to comprehend every thing submitted, and must not be of parcel only ; and Kyd 114, (171) is cited as establishing this rule of law. It is contended, that by this determination of the arbitrators, they have expressly excluded the book accounts between the parties, and that by the condition of the parties, “ all manner of accounts ” are *389clearly submitted. More particularly is it urged, ought this rule to be tenaciously adhered to when the submission by the parties is conditional and under an ita quod, as in the present case.

That the award must be according to the submission, and must comprehend all matters therein contained, is a rule laid down as law, by all the authoritative writers upon the subject, Plot only Kyd is thus express, but the same doctrine is expressly recognized and fully treated of by Viner, title Arbitrament M. and the reason of the rule is distinctly stated by these authors. The object of the parties in making a submission, is to have a final settlement of every matter comprehended within its terms, and this purpose is defeated when the arbitrators exclude from their consideration and decision any portion of the questions between the parties. This doctrine is stated by Lord Mansfield, and Denison, J. in Hankins v. Colclough, 1 Bur. 274.

The case of Berry v. Penring, Cro. Jac. 399, which was cited on the argument as establishing a contrary doctrine, will not admit of this construction. The arbitrators there awarded all suits and actions should cease, and all matters be determined except concerning such a bond, which was awarded to stand in force. It was impossible to put any construction upon this language, other than that which was given it by the court, who held that an award, that this bond should stand in force and be satisfied, ivas a sufficient declaration of their intention relative to the instrument, and so far from amounting to a disclaimer to meddle with it, was an express adjudication. This case then, though cited in ■opposition to the doctrine which I have laid down, is an actual recognition of it.

If then this rule be correct, and I know of no modern decision which goes to question or weaken it, it is clear, that as in the present case, the book accounts of the parties are excluded from the consideration and decision of the arbitrators, by the express language of their award; that it comes *390within this rule of law. It may be that these were the principal matters in dispute between the parties. It may be that upon an investigation of them, it would have appeared that the plaintiff was indebted to the defendants in a sum amounting to the full penalty of the bond, and that this penalty is now demanded of the latter for not paying the comparatively inconsiderable sum of £5 10s.

It is, we think, fair and legal to make every intendment of this kind. If on the present case we should say the award is good, and the plaintiff has a right to recover, it should be in effect to determine, that when parties submit their differences from a spirit of liberality and conciliation, to the decision of a tribunal of this kind, and make it a condition that the arbitrators shall investigate and determine upon all the matters in controversy, they may settle one which is of small importance, and leave those chiefly in the view of the parties undetermined. If they may omit deciding upon one part of a case, why not pass over all parts of it in which they happen to find difficulty ?

We think the old rule the salutary and correct one. It appears as consonant to good sense, as to the decisions of courts of justice and the opinions of legal writers; and we are therefore of opinion that the award is void, because the submission being conditional, the award of parcel only, when the arbitrators had notice of other matters embraced within it, is illegal.*

As the breach, therefore, is alleged in the non-performance of an award which is invalid, the action cannot be supported,, but judgment of non-suit must be entered.

Eon-suit entered.