The opinion of the Court was pronounced by
Hutchinson, J.There is no dispute, in the present case, but that the parole submission between the parties was broad enough to have admitted these matters now in controversy, had they been presented. And the defendant offered to prove to the jury, that these matters were not laid before the arbitrators, nor by them adjudicated. This testimony was excluded, which rendered the plea in offset unavailing. The question, now to be decided, is, whether a demand thus situated is barred by the award.
*420Both parties produce authorities in point, and suited to the two sides of this controversy. The decisions reported in Massachusetts support the defendant’s claim : those reported in JVew-York are opposed to this claim. In both of those states, demands that might have been, but were not, included in judgments, are not considered as barred. In the 5th of Mass. Rep. 234, Webster vs. Lee, where was a Written submission by rule of court of all demands, Judge Parsons took a full view of the subject, and decided, that the party was not so bound to bring forward all his demands, as to lose them if he did not bring them before referees.
In Ravee vs. Farmer, 4th Term. Rep. 146, and in Golighily vs. Jetticoe, there cited in note, the decisions go the whole length of supporting the defendant’s claim, unless we suppose the terms of submission narrower in those cases, than in the present. The terms there used were, “ all matters in difference.” This must mean either all matters, that they in fact differed about before the arbitrators, or all matters that existed, about which they might differ, were they disposed so to do. This last is as broad as all demands. When Mr. Justice Butter cited Lord Mansfield’s expressions, “ that the question was whether matters in difference meant matters not in difference,” he did not consider that he was repeating a foolish expression of his lordship, but a laconic, sensible expression, so disposing of the case, as made it an authority for the decision then made in the case of Ranee vs. Farmer. — • There is but one ground, on which either of those decisions can be supported : that is, that matters in difference mean what the parties actually treat as matters in dffierence, and lay before the arbitrators as such. In the case cited from 6th Term Reports, the question was not whether the goods in question might have been recovered in the former action. There could be no such question; the two declarations, with regard to the goods, were exactly simijarl But the question submitted to the jury was, whether this claim for goods had been submitted and adjudicated upon in the farther action. The court said, this was a proper issue, and tried the real merits of the dispute.
The case cited from 15th of Fast, 213, was a motion for an attachment against the defendant for not performing an award, made upon a submission of all matters. The submission and award settled the accounts of the ship’s voyage. The defendant now claimed a deduction of £72, which his affidavit showed had . . / been paid, and had not been laid before the arbitrators. The court decided against him forthwith ; saying, that, in such a submission, he ought, that is, was bound, to bring forward all his claims. This, said Lord Elknboro, is not going against Raves vs. *421Farmer, and Golightly vs. Jellicoe. Had he occupied a little ' ° J \ time in reflecting on the subject, he must have perceived that he was going directly abreast of those authorities. Those two cases, and the one before him, agreed precisely in this important point» that, if the several demands had been laid before the arbitrators, they would have adjudicated upon them ; and there neither would, nor could, have been any objection that the submission was too narrow to admit those demands.
The JVew-Yorh cases assume the same ground, that, upon a general submission to arbitrators, all demands must be exhibited, or lost.
The necessity for this doctrine is not readily perceived ; nor is it carried through the cases in which there is some analogy in principle. When general receipts in full of all demands are given, parole testimony is admitted to show certain demands not included by the intention of the parties. So, suits have been maintained for the consideration to be paid for land, though the deed of the same land expressly says that the plaintiff, the grantor, had received the same consideration to his full satisfaction. So money, paid by mistake, is recoverd back; and money paid understanding^, upon a consideration which afterwards fails.
We may safely presume, that a man, who makes a general submission to arbitrators, and omits to lay all his demands before them, fails through forgetfulness or mistake. It cannot be through design. That state of feeling, which would induce him to keep back any ofhis demands, knowingly, would induce him to revoke the submission altogether. He could expect to gain nothing by keeping back a demand. If he would afterwards assert it, he must not only prove it, as fully as if before the arbitrators, but must prove that it was not laid before them for adjudication.
Besides, there is some danger from this doctrine as applied to parole submissions. Parole testimony of a submission and award may bar a claim that is just, and ought not to be barred, and this through a misapprehension or forgetfulness of the exact expressions used in the parole submission. They might say all demands, when they intended all then exhibited, and no others.— Awards, upon parole submissions of all demands, are in some degree parallel with general receipts in full of all demands. Both are very frequently effected without the aid of counsel, and without sufficient knowledge of consequences to excite a prudent •caution, before all is closed.
We are not at present inclined to open the door to go back of •written submissions and references, that are general, and the awards general$ but we admit the inquiry, whether adjudicated *422or not, in cases of submissions not in writing. As the defendant has not had this privilege in supporting his plea in offset, the judgment of the county court is reversed, and
Hunt & Beardsley, for the plaintiff. Smith, and Jlldis & Davis, for Defendant.A new trial is granted.