The opinion of the court was delivered by

It is a well settled rule of the law of arbitration, that if two entire subject matters are submitted, and only one of them awarded upon, the award is not binding, on the ground that it is probable that the party might not have agreed to submit one alone. This applies with peculiar force, when the claims are upon different sides of the submission, and especially in a case like the present, where there are mutual law suits between the parties. It is scarcely supposable that the defendant, in this case would have submitted the plaintiff’s suit and not his own. And as no award was made upon the defendant’s suit, we think it must be regarded, that the award is not such, as the submission contemplated. It is wanting in finality. The case of Randall v. Randall, 7 East. 81, is very much in point, upon this question.

Judgment affirmed.