majority">Platt, J. delivered the opinion of the Court.

The plaintiffs move to set aside the verdict, and for judgment in *230favour of the plaintiffs, non obstante veredicto ; on the ground that the issue was immaterial.

The rule of law as laid down by Lord Mansfield, (Rex v. Philips, 1 Burrow, 301.) in regard to an immaterial issue, and a verdict upon it, “ is, that when the finding upon it does not determine the right, the Court ought to award a repleader j unless it appear from the whole record, that no manner of pleading the matter could have availed.”

A judgment, therefore, non obstante veredicto, is always upon the merits ; and a repleader upon the form and manner of pleading. (2 Tidd's Prac. 831.)

I think there is no ground for the motion on the part of the plaintiffs. The plea is informal; but, in my judgment, it tenders an issue involving the real merits. It is, in substance, a plea of no award made. By circumlocution, the plea avers, that the award exceeds the submission; inasmuch as the arbitrators have awarded a price, and a conveyance for land, never submitted for their valuation. The object of the submission was to determine at what price the defendant should purchase the land which he occupied or claimed; and the verdict finds that the award has no relation to any lands of that description ; or, in other words, that the land appraised by the arbitrators never was occu? pied or claimed by the defendant, and if so, there is no award according to the submission.

Suppose it had been referred to arbitrators to set a valu* ation on a farm, or a ship in possession of the defendant, and lie had pleaded no award made ; and upon the trial of the issue on that fact, it was proved, that the farm or ship actually appraised by the arbitrators, was entirely different and. distinct from that possessed by the defendant; could there be a doubt that the award must be deemed void; because it was not upon the subject matter of the submission ?

It is important in this case, to remark, that the object of the submission was not to ascertain how much, and what lands the defendant occupied or claimed; that was never a question in dispute. The only subject of arbitration was to fix the price at which the defendant was to purchase the land which he occupied or claimed, and for which the ejectment ■suit had been commenced against him. It was for that land *231only, that he acknowledged the plaintiff’s title, and which he agreed to purchase ; he never intended to refer it to the arbitrators, to decide wjhat lands he should buy of the plaintiffs. “ The land occupied or claimed by him” are words of description as to the subject matter of the submission.

It is observable, also, that the award does not find, or assert, affirmatively, that the land which it describes, was u occupied or claimed” by the defendant. It seems to have been taken for granted; but the arbitrators have not adjudicated on that fact; and whether the land awarded upon was, in truth, in the occupation of, or claimed by the defendant, is a fact which does not appear from the award, find is to he proved by extraneous evidence.

I consider the verdict upon the issue joined in this cause, as establishing the fact, that the award was not pursuant to the submission ; and, therefore, the finding of the jury was not upon an immaterial issue; but upon the real merits of the controversy.

The motion ought, therefore, to be denied ; and the defendant is entitled to judgment on the verdict.

Judgment for the defendant.

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