delivered the opinion of the Court, as follows.
We are wmll satisfied that by the rules of pleading the replication is bad, it neither traversing nor avoiding the bar; but if the bar be also bad, the complainant must notwithstanding have judgment.
Without considering other objections urged against the plea in bar, it is contended that in the award therein set forth, the arbitrators have exceeded their authority in permitting the respondent to raise his dam to a height not exceeding three feet. That they have assigned to him this privilege, although deducible by inference rather than given in direct terms, we have no doubt is the fair and natural import of the language, used. The injury *303complained of arose from the flowing occasioned by the dam, as it then existed, and the damage which the complainant had then sustained, or which he might afterwards sustain by that dam, the arbitrators were alone, by the terms of the agreement of the parties, authorized to determine.
But it is insisted that as the arbitrators were substituted for the jury, and as one of the points to be settled by them as provided by statute is, what head of water it may -be necessary for the respondent to raise, the arbitrators might rightfully authorize the raising of the dam. To this it may be replied, first, that it was competent for the parties to settle their controversy upon such terms as might be satisfactory to them, whether they conformed to the usual course of proceedings as regulated by statute or not, and that therefore for these terms we can look only to their argument: and, secondly, that if the arbitrators might and ought to have done what the law prescribes to the jury, they have not done it; not having determined what head of water was necessary, and what was the annual damage occasioned by the flowing. And we are all of opinion that in permitting the respondent to raise his darn, the arbitrators exceeded their authority. This part of their award is therefore clearly bad.
It is true that an award good in part and bad in part, may generally be sustained for the unobjectionable part; and that which is bad may be rejected. But there is an exception to this rule, where the bad part of an award is manifestly intended as the consideration in whole or in part of that which is good ; in which case the whole must be set aside as void. Pope v. Brett, 2 Saund. 293. and note 1. In the present case, the other parts of the award are plainly connected with, and dependant at least in part upon, the unauthorized provision and privilege.
Although the sum awarded to the plaintiff is apparently small, yet as there were other mutual demands between the parties, and this sum being a balance in full of all claims submitted, as well as for damage sustained or to be sustained by reason of the flowing, it does not appear that a much larger sum might not have been allowed on this account, which may have been partially offset by opposing claims. What influence the privilege of raising the dam to a height not exceeding three feet *304awarded to the respondent, might have had in the estimate of damages, we have no means of ascertaining. But as a privilege valuable and important to the one, and calculated to occasion further injury to the other, it must be presumed to have had an influence; and being unauthorized and necessarily interwoven with the damages awarded, the whole proceedings are thereby vitiated.
It results therefore that the plea in bar being bad, inasmuch as the award therein set forth and relied upon is to be rejected and void, there must be
Judgment for the complainant.
Vid. Lyle v. Rodgers, 5 Wheat. 394. 406.