delivered the opinion of the court. This court is of opinion, that the court below erred in rejecting the evidence offered by the plaintiff in error, under the plea of set-off, upon the sole ground, that no proof could be admitted of claims originating prior to the date of the award.
If Newnan had a claim,, which constituted a legal ground, of set-off, under his plea, and which was not “a matter in dispute” at the time of the award, and therefore not “included or regarded in the award” in the language of the plea, it ought to have been admitted in evidence. (Ravee vs. Farmer, 4 Term Rep. 146; Golightly vs. Jelico, 4 Term in note; Wheeler vs. Van Hauten, 12 Johnson’s Rep. 3.11; Kydon Awards 179.)
The matters in dispute, as set out in the submission, consisted entirely of claims on the part of Wood vs. Newnan. These, “and all other matters in dispute between the parties,” were submitted. But were the claims of Newnan vs. Wood, matters in dispute? and were they submitted? There is certainly nothing in this record, which shows it. The contrary is not improbable, from the silence' of the submission respecting them, in the first place; next from the language of the award, which directs monies to be pai'd to Wood, and Wood alone to receipt of release; whereas, Newnan too, would probably have been directed to receipt, or release, if his claim had been considered; and lastly, from the circumstance, pretty apparent from the record^ -that the umpire heard no evidence on the part of Newnan.
Reverse the judgment, and remand.the cause for a new - trial.