majority"> *173 Ruffin, J.,

after stating the above. In the opinion of thi3 court, the evidence tendered by the defendant was improperly excluded.

Allowing the decision of arbitrators, when acting within the scope of their authority, to have the force and effect of a judgment between the parties, in so far as it estops them from again litigating any matter embraced in the submission, and conceding as is insisted by the plaintiff, that in every such case, the estoppel is co-extensive with the submission, and affects not only those claims that were actually introduced before the arbitrators, but all that might have been, according to the terms of the latter, still we think, that it w’as open to the defendant under the circumstances of this case, to show, as he proposed to do, that the demand, upon which he now insists, was not intended to be embraced within the submission, and that for that reason, it was not produced, or considered by the arbitrators, at the time of their trial.

Looking to the article itself as signed by the parties, a doubt is at once suggested, as to whether it was intended to embrace the individual claims of the parties, as distinguished from their partnership dealings.

The fact that a controversy had arisen between them, “ about and concerning the dealings and, mutual accounts kept by and between themselves for the last several years,” is recited as that which had given occasion to the arbitration, and the matters referred seem to be only such “things and considerations” as bore some relation to those dealings and mutual accounts.

The note, now produced by the defendant, ante-dates those mutual dealings, and if any presumption is to be indulged, it must be in favor of his present right to it, since it does not belong to that specific class of claims, about which the controversy had arisen, and the adjustment of which constituted the chief inducement for making the reference.

*174 The plaintiff himself seems to have felt the force of this presumption, and therefore undertook to show, affirmatively, that the arbitrators, with the knowledge, and consent of all parties, enlarged their functions, so far as to enquire into and adjudicate the individual matters, as well as the partnership dealings.

If the terms of the written agreement to refer had been clear and explicit in themselves, his liberty thus to show that matters foreign to them, had been embraced in the award, might be the subject of some doubt.

But conceding his right to do so, it surely must have been equally admissible for the defendant to show, if he could, that his present demand came neither within the scope of the original intention of the parties, nor the action of the arbitrators ; and the evidence offered by him, with that view, should have been received by the court.

The plaintiff’s counsel also called our attention to the complaint, wherein the note, pleaded as counter-claim, is said to be one for $300,' and insisted that this allegation could not be supported by proof of a note for $200, and that therefore the evidence with regard to the latter, was properly excluded. No such exception is set out in the case, as having been taken in the court below; and if taken, it might have been avoided by an amendment, such as the court had the power to allow, and doubtless would have been allowed, if deemed necessary to meet the ends of justice and right between the parties. We do not feel at liberty, therefore, to notice it here now, but will leave it to be acted on hereafter by the parties as they may be advised, subject to the discretion of the court.

The judgment of the court below is reversed, and a venire de novo awarded.

Error. Venire de novo.

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