delivered the opinion of the Court.
It seems to the Court here, that upon the bond of submission taken by itself and without reference to the record of the suit referred to in the condition, it does not c^ear^y aPPeai' that both the subjects referred to the arbitrators were not involved in and embraced by the controversy pending between said parties in Court, and that the plaintiff in error was not asserting in said action a title to the whole of the said tract of land of 291 acres, partly in virtue of the Ward survey, and in part under the warrant referred to. If such were the fact the award covered the whole matter referred to the arbitrators; and whether such was the fact, or if not, and the latter branch of the submission was of an independent controversy not involved in the suit, whether the parties may not have waived a decision thereon, and requested the arbitrators to make their award on the subject in controversy in said suit alone, are matters which can only be shewn by proper pleadings in the cause ; and which the plaintiff in error should have an opportunity of shewing by his replication to a plea of no award; and that it was not incumbent to set out such matters in his declaration ; the award itself on its face purporting to be of the whole matter submitted. It is therefore considered that the judgment of the Circuit court is erroneous, and the same is reversed with costs. And this Court proceeding, &c., it seems to the Court that the declaration and matters and things therein contained are sufficient for the plaintiff to have judgment. It is therefore considered that the demurrer to the declaration be overruled ; and the cause is remanded to said Circuit court, with leave for the defendants to plead, and for further proceedings: Which is ordered to be certified.
Daniel, J. dissented.