58 Miss. 293 | Miss. | 1880
delivered the opinion of the court.
The award pleaded constituted a-bar to the further prosecution of the action. The matter involved in the action was a matter of accounts between the parties. The foundation of the action was several open accounts against the defendant which had been assigned to the plaintiff. 1 The special plea avers that there were other matters of account between the parties, and that the plaintiff was largely indebted to the defendant, and that they agreed “to leave the settlement of the'difference each one claimed in regard .to final settlement of accounts betwéen them ”to arbitrators, “ who wei-e to take their books and accounts and decide what amount is properly due either oné of the said parties.” The submission as set forth in ^the plea embraced all accounts involving mutual indebtedness between the parties, and the ascertainment of the difference, so as to determine which was debtor to the other, and the amount of such indebtedness, and the award, was an extinguishment of the cause of action. .
■ The submission was not -revoked by the institution of the action, if it be true that the plaintiff could revoke it, upon which we deem it unnecessary to express an opinion. 11 Vroom, 288; 10 Vt. 91.
We have confined our view to the plea, and have declined to look to the submission and award, which are improperly appended to the plea as exhibits.
■The judgment is reversed, the demurrer to the special plea is overruled, and leave given to the plaintiff to reply to the plea, and the cause will be remanded for further proceedings in -the Circuit Court.