The opinion of the court was delivered by
Isham, J.The questions in this case arise upon a general demurrer to two special pleas in bar; in each of which the defendant has pleaded a submission to arbitration of all matters in dispute between them, and award of the arbitrators made in pursuance of that submission. The replication admits the submission and award as stated in the pleas; and the demurrer to the replication admits, that the notes mentioned in the declaration, were not presented to, or adjudicated by the arbitrators, in making their award. In the second plea, it is stated that a [controversy had arisen between these parties concerning their book accounts, and that other matters of dealing and dispute existed between them, and for the purpose of adjusting the matters in controversy, the parties, by their mutual agreement in writing, under their hands and seals, agreed to submit the same to arbitration. This plea contains the averment, that the notes described in the declaration were a part of the matters in dispute, and in controversy, and that on the 8th day of December, 1851, the arbitrators made and delivered their award, in pursuance of that submission. The question arises, whether that submission and award is a bar to a recovery on these *395notes, when they were not included in the award, and were not the subjects of investigation by the arbitrators.
It sufficiently appears from the averment, in this plea, that the notes were included in the submission, as being matters in dispute and controversy between the parties, and might have been settled in the award of the arbitrators, if they had been presented for that purpose. The averment of that fact, and the admission of its truth by the demurrer, becomes material, as otherwise, from the cases of Rover v. Farmer, 4 Term 146, and Wheeler v. Van Houten, 12 Johns. 311, it would seem that the notes were not submitted, and consequently, that the award would be no bar to a recovery on the notes. The notes in this case being included in the submission of the parties, as matters then in controversy between them, the authorities folly establish the principle, that where the submission is by deed, an award made in pursuance of it will be a bar to any action brought for the recovery of any matters that were included in the submission. In Russell’s Arbitrator 339, it is saidj “ that after an award had been made, no action can be maintained for any matter in difference within the scope of the submission, though it were'not in fact brought before the arbitrator. Parties, therefore, must be careful to bring forward at the time of the reference, every claim within the submission on which they intend to insist.” This rule is sustained by the case of Smith v. Johnson, 15 East. 213, and by the case of Dunn v. Murray, 9 Barn. & Cress. 780. The same rule has been adopted in New York in the cases of Wheeler v. Van Houten, 12 Johns. 311, and Fidler v. Cooper, 19 Wend. 285. In the last case the court remarked, “ that the rule may sometimes operate harshly, but it is nevertheless a salutary principle from which we cannot depart, without the danger of defeating the beneficial ends intended to be answered by allowing parties to submit their controversies to judges of their own selection.” The same principle is recognized in Connecticut in the case of Bunnell v. Pinto, 2 Conn. 431, and Massachusetts in the case of Warfield v. Holbrook, 20 Pick. 534.
It is to be observed, that there is no pretense in the case, that the omission to present these notes to the arbitrators, arose from any mistake, forgetfulness or accident, or that the arbitrators refused to render their award upon any matters submitted to them. If that had been the case, the matter might have been replied, *396and the question directly presented, whether under these circumstances, the award would be a good bar to a suit for the recovery of the claims so omitted in the award. 1 Barn. & Adol. 723. 2 Adol. & Ellis 752. But as the case now stands, no such questions are presented. It is the simple case of a submission of these notes, with other claims, as matters of dispute, under the hands and seals of these parties, to arbitration; an award made in pursuance of that submission, and an intentional withholding of these notes, from the examination and decision of the arbitrators. Under such circumstances the award is clearly a bar to this suit. Whether this principle would apply in cases of a paroj submission, we are not called upon to decide. It was so applied in Wheeler v. Van Houten, 12 Johns. 311; but a different rule was adopted in the case of Buck v. Buck, 2 Vt. 417; though the rule in that case was strictly confined to parol submissions ; the court observing, “ that they were not inclined to open the door to go back of written submissions, that are general, and the awards general.”
In cases of judgments at law, they are a bar only to matters actually adjudicated and determined, and wifi be no bar to a distinct cause of action not investigated. In those cases, the party is under no obligation to unite distinct causes of actions in his declaration, or present them for determination. But where an obligation of that kind exists, as it does where the parties have agreed under hand and seal to submit the matters, then the adjudication or award, becomes conclusive, and is a bar to any matter, which ■they have agreed to, and which is included within the submission.
The judgment of the County Court is affirmed.