¶1The defendant has stipulated to perform two things on his part, a failure in either of which is a forfeiture of the bond — one is, that he should appear by himself or attorney before the arbitrators; the other is, that he should pay such sum as sh.ould be'awarded against him.
¶2The appearance of the defendant before the arbitrators, is, as has been justly observed, in its’ nature and its order, antecedent to the-making of an award. — It was a thing lawful and possible, which the parties had a right'to make a condition.
¶3There are cases in which the defendant may plead performance or in avoidance generally : in such case the plaintiff must in his replication set forth a breach. To a plea of no award the plaintiff may reply an award and set forth a breach in the non-performance; but the plea of no award is not a plea of performance, but in avoidance — there being nothing laid upon him to perform. Now where a defendant would excuse himself or avoid the charge contained in the declaration, his plea must answer all the allegations contained in the declaration, as fully as in a plea of performance.
¶4It is true that the arbitrators might be authorized to proceed and make an award ex parte, or they might be restrained by the submission. This does not affect the present question. Had the plaintiff replied to the defendant’s plea, and instead of sitting forth an award and a breach in a non-performance on the part of the defendant, had plead the non-appearance of Johnson, it would not have been an answer to the plea; it certainly would not, if as insisted by the defendant’s counsel, the arbitrators might have proceeded ex parte. The defendant therefore should have averred a performance of that part of the condition the performance of which is not excused or avoided.
¶5Judgment for the plaintiff.