4 2 Story, Eq. Jur. § 1456.
5 2 Story, Eq. Jur. § 1456. A letter from the arbitrator to one of the parties, stating the grounds of his award, is not admissible to show an error in law. Holgate v. Killick, 7 H. & N. 418; Leggo v. Young, 16 C. B. 626. But a simultaneous paper, intended to form a part of the award, award will be held bad, as not embracing all the matters submitted.1 But where the parties omit or refuse to bring forward claims, the fact that they were not passed upon does not invalidate the award.2 An award in pursuance of a submission is, however, conclusive as to all matters to which the submission extends, whether every particular included in the submission were laid before the arbitrators or not; and it may be pleaded in bar of any suit upon claims embraced in the submission.3
§ 1375. Again, a court of equity will set aside an award where it appears that there has been fraud, corruption, partiality, or any other misconduct on the part of the arbitrators, or fraud and imposition by the party attempting to set up the award by which the arbitrators were misled.1 But in a suit at common law no extrinsic circumstances or matter of fact dehors the award can be pleaded or given in evidence to defeat it.2 But in some American States an action on an award may be defeated by showing corruption or misbehavior on the part of the arbitrators, excess of authority, or gross errors, or mistakes; especially in those courts which do not possess the full chancery powers of the English courts.3
§ 1376. Where a reference is made to arbitration, all matters relating to such reference, if insisted upon as a defence or claim, should be brought forward before the award is made; for the same matter cannot be made the subject of a new action.4 But it may be averred and proved by parol evidence that the cause of the second action was not in issue in the former, and was not decided.6
§ 1377. Where, through mistake of their authority, or oversight, or accident, referees neglect or refuse to take into consideration and pass upon demands within their authority, and brought before them by one or other of the parties, the maybe referred to for such purpose. Hodge v. Burgess, 3 H. & N. 293; Kent v. Elstob, 3 East, 18.
1 2 Story, Eq. Jur. § 1452; Harris v. Mitchell, 2 Vern. 485; Chicot v. Lequesne, 2 Ves. 315; Brown v. Brown, 1 Vern. 159; Lingood v. Eade, 2 Atk. 501; Boston Water Power Co. v. Gray, 6 Met. 168; Davis v. Cil-ley, 44 N. H. 448.
2 Ib.; Wills v. Maccarmick, 2 Wils. 148; Braddick v. Thompson, 8 East, 314; Bac. Abr. Arbit. K.; Kyd on Awards, ch. 7, p. 327; Fletcher v. Hubbard, 43 N. H. 58. But see Boston Water Power Co. v. Gray, 6 Met. 169.
3 Strong v. Strong, 9 Cush. 560.
4 Smith v. Johnson, 15 East, 213; Dunn v. Murray, 9 B. & C. 780; 8. c. 4 Man. & Ry. 571.
5 Snider v. Croy, 2 Johns. 227; Phillips v. Berick, 16 Johns. 136; Webster v. Lee, 5 Mass. 334; Smith v. Whiting, 11 Mass. 445; Hodges v. Hodges, 9 Mass. 320; King v. Savory, 8 Cush. 309; Bixby v. Whitney, 5 Greenl. 192; Cook v. Jaques, 15 Gray, 59; Edwards v. Stevens, 1 Allen, 315.
§ 1378. An agreement between two parties to refer any matter of dispute arising under a contract will not constitute a defence to an action, unless in pursuance of such agreement such a reference has been made and determined.4 Nor will the pendency of an arbitration be an answer to an action on a contract or debt.5 But a valid submission and award of court, in writing, duly published, is sufficient to bar an action upon the original claim submitted.6
1 Per Ch. Justice Shaw, in Warfield v. Holbrook, 20 Pick. 534; Rob-Bon v. Railston, 1 B. & Ad. 723; Samuel v. Cooper, 2 Ad. & El. 752.
2 Warfield v. Holbrook, 20 Pick. 534.
3 Dunn v. Murray, 9 B. & C. 780; Fidler v. Cooper, 19 Wend. 285; Emmet v. Hoyt, 17 Wend. 410; Smith v. Johnson, 15 East, 213; Green v. Danby, 12 Vt. 338; Warfield v. Holbrook, 20 Pick. 534.
4 Kill v. Hollister, 1 Wils. 129; Thompson v. Charnock, 8 T. R. 139; Tattersall v. Groote, 2 B. & P. 131; Harris v. Reynolds, 7 Q. B. 71; Peters v. Craig, 6 Dana, 307; Certain Logs of Mahogany, 2 Sum. 593; Scott v. Phoenix Ass. Co., Stuart, 152; 1 Bennett's Fire Ins. Cas. 118 and note.
5 Harris v. Reynolds, 7 Q. B. 71. See Lary v. Goodnow, 48 N. H. 170.
6 Duren v. Getchell, 55 Me. 241 (1867).