after alluding to the principal facts in the exceptions, pronounced the opinion of the Court. — The principal question in this case is, whether the action was so ended by the submission to arbitrators, and their proceedings, that Blanchard had no right to enter his complaint for affirmance. The submission described does not carry the case by the court, to which the appeal was taken. There is no time set for the award to be made, nor any security to Blanchard for the recovery and collection of his demand, if there was no award before court, nor any judgement in court. The parties and arbitrators were together forthwith after the submission was agreed upon ; and all the arbitrators did was done the same day ; and they all separated, with no apparent intention of ever convening again upon the subject. Thus it rested till court, which was over two months and a half. That part of the complaint is not proved, which states Hayes’ promise not to enter the appeal. For aught that appears in the case, his right to enter the appeal was unembarrassed, unless there should be an award upon the whole merits before the lime of the court’s sitting. It is not even contended, that the award, so far as made and published, covered the whole ground and put an end to the suit: and nothing appears that either party was in fault, more than the other, on the subject of the failure to settle the suit by award. Under allthese circumstances, the Court are ofopin-ion, that, in order to take away the right of either party to enter the action in the county court, there must have been both a sub*214mission and award, wholly settling the controversy j or else there must have been a submission on such terms as gave the arbitrators a time in which to make their award, extending by the county court to which the appeal was taken. Neither of these’ can be inferred from any testimony in the case. Indeed, considering how soon after the appeal the arbitration was agreed upon and holden, and how long and quietly it rested from that event till court, the most natural inference is, that both parties considered the arbitration at an end.
Another question arises upon the exclusion, by the county court, of the evidence offered to prove a settlement by the parties, affirming the award so far as made, and closing the rest by their mutual agreement. This appears to the Court to be an entire new ground for setting aside the judgement and execution, which is not named in the complaint: and, if it be a tenable ground, it ought to have been stated in the complaint, so that the defendant might come prepared to answer it. This ground is as variant from that set up in the complaint, as any one contract is variant from another. But it is said this special matter comes in to rebut the matter of the special notice of the defendant. We think',^however, that the special notice has had no effect to render this testimony admissible. The matter of this special notice was nothing but what the complainant needed to prove on his part, except, that-the agreement of submission was, that the award should be made within two days from the time of the submission ; and the defendant introduced no testimony tending to prove this. It appears, that the trial proceeded just as if this notice had not been filed.
We discover no error in the judgement of the county court, and the same is affirmed.