
    Baird vs. Crutchfield.
    Fraud or want of good faith in the parties to an award or the entrapping a party by non observance of an agreement in reference to the award is good cause for setting aside such award on motion.
    This action of debt which was pending in the Circuit Court of Wilson, was referred by the parties to arbitration, and the award was to be made the judgment of the court.
    The arbitrators met and awarded the sum of #430 to the plaintiff. This award was presented to the court and motion made to have it entered as the judgment of the court in the premises. The defendant resisted the motion and moved the court to set such award aside and in support of such motion tendered his own affidavit and the affidavit óf a third pei’Son which stated that when the arbitrators were about to consider the matter in controversy between the parties, the defendant stated that he had lost a receipt against the debt claimed, and that thereupon it was agreed that the arbitrators should proceed to make the award, and if it should not be satisfactory, neither party should be bound by the award; that they went into the arbitration and affiant attempted to prove the existence of the lost receipt. The .affidavit exhibited the receipt, which, it was stated, had subsequently to the arbitration been found.
    The presiding Judge, S. Anderson, overruled the motion of the defendant, and judgment was entered on the award, on motion of plaintiff.
    The defendant appealed.
    
      Caruthers, for the plaintiff in error.
    Previous to the making of the award the parties may make any alteration in the terms of the submission and where the terms of the submission are under seal, they may be changed by subsequent agreement not under seal. See 1 Stephens, 36; 5 East. 189; 5 Barn, et Aid. 488.
    2. Where evidence has arisen that could not be obtained at the time of the making of the award, and be such as if known must have changed the award and which by reasonable diligence could not have been obtained before the award, the award should be set aside. 2 B. and Aid. 704; Watson, 176; 2 Chitty Rep. 42.
    
      Stokes, for defendant in error.
    1st. The court below did not err in refusing to set aside the award in this case on the affidavit of the plaintiff in error that he had found since making of the award, a receipt in full against the claims in dispute. This question has been frequently decided, both in England and America. In Barlow vs. Todd the court says, “it is now well established that at law nothing dehors the award invalidating it can be given in evidence to the jury. The arbitrators are judges chosen by the parties themselves, and their awards are not examinable in a court of law, unless the submission is made a rule of court, and then only for corruption or gross partiality.— 3 John. Rep. 367. In Cranston vs. Kenney’s Exrs. 9 John. Rep. 212, the same court reiterate the same doctrine and add, “under the statute and where the submission is agreed to be made a rule of court, power is given to the courts of common law jurisdiction to set aside any arbitration or um-pirage procured by corruption or undue means, and this is the limit of the authority of those courts.” The same principle is decided in Elmendorf vs. Harris, 5 Wend. Rep. 516. In this case, Oh. Justice Savage, having reviewed several decisions, comes to the conclusion, that “if the person dissatisfied with the award, wishes to avoid it for the improper conduct of the arbitrators, or any matter dehors the award, he has no remedy in a court of law by motion, but must apply to a court of equity.” It appears most conclusively from the above authorities that the action of the court below in this case, in refusing to set aside the award on the affidavit of newly discovered evidence, is well sustained. We refer the court to the following cases on the same point: Jocelyn vs. Donnel, Peck’s Rep. 274; M’Kinney vs. Newcomb, 5 Cow. Rep. 425; 2 Burr. Rep. 701; 17 Wend Rep. 410; 10 Wend. Rep. 589; Boston Water Power Co. vs. Gray, 6 Metcalf (Mass.) Rep. 131.
   Reese, J.

delivered the opinion of the court.

Defendant in error sued plaintiff in error, in an action of debt. At the return terra of the writ, and before declaration was filed, the cause by rule of court, was referred to the arbitrament of two persons. These persons with a third not named, in the rule of reference, returned to court an award, in favor of the plaintiff below for several hundred dollars. A motion was made by the defendant below to set aside the award, and.refused by the court, and judgment was given thereon. Several grounds for the reversal of this judgment have been urged in argument here; on one of which only, do we place our action in reversing the same.— At the time of the award, as appears by the affidavit of the defendant below, and one Lenoir, it was known to the plaintiff that the defendant had mislaid and could not find a receipt in full, signed by the intestate of the plaintiff below, of the very claim of the plaintiff which he sought to recover; and the case being in this situation, it was expressly agreed between the plaintiff and defendant, before the arbitrators proceeding in the case, that if the award, when given, should not be satisfactory to both parties, it should be binding on neither, but they should return ■ the same to court, and proceed in the trial of the cause as if it had not been made. The award was not satisfactory to the defendant: he has since found his receipt, and wishes to try the cause. This is in our opinion, “procuring an award by undue means.” After making such an agreement, it is fraudulent, and in bad faith, to insist on the award. But for this agreement, the submission might have been withdrawn, or some other step taken. However awards may be favored, or however difficult adjudications upon the subject may have made it for the parties to set them aside, we apprehend that fraud or want of good faith in the parties, or the making agreements with the purpose to entrap, and obtain undue advantage, will avail to set aside the judgments of these domestic tribunals, as they certainly will to set aside the most solemn proceedings in courts of record.

Upon this ground, therefore, well sustained by the affidavits, we are of opinion, that the judgment be reversed; that the award be set aside, and that the cause be remanded to be proceeded in.  