
    *Jenkins v. Liston & als.
    July Term, 1856,
    Tjewisburg.
    Arbitrators — Admission of Evidence In Absence of One Party — Effect upon Award. — Arbitrators baying received a paper as evidence without the knowledge or consent of one of the parties to the arbitration, though they say that their opinions were formed before it was received, their award is void.
    John Jenkins died prior to June 1835, after having made his will, which was duly admitted to probat in the County court of Preston countj'. By his will, after giving to his wife fqr her life a part of the tract of land on which he lived, and to his son Jonathan Jenkins, the land on which he lived, which was a part of the first tract, he says: “Thirdly. The lands I now live on, exclusive of that which I have bequeathed to my son Jonathan Jenkins, I give and bequeath to John Smith my son in law and Rebecca Smith, my daughter, after my wife’s decease, fullj' to be possessed and enjoyed by them during their natural lives; and after their decease to fall to their son, John Jenkins Smith. And in case of his death, the land is to fall to the rest of John Smith and Rebecca Smith’s children.” The land devised in this third clause of the will is stated in the bill to be between one hundred and fifty and one hundred and sixty acres.
    In March 1836 John Smith and wife and John Jenkins Smith and wife united in a deed, by which they conveyed to Jonathan and Graham Jenkins all their interest in the land devised to them by John Jenkins, and covenanted to warrant the land against their respective heirs.
    John Jenkins Smith died in 1841, in the lifetime of *John Smith and his wife, leaving a widow and two children. John Smith survived his wife and died in 1853, leaving several children, and real estate which, exclusive of his widow’s dower, was valued at his death at nine hundred dollars; and which pending this suit was valued at one thousand four hundred dollars.
    In February 1854 Abraham Biston, who had married a daughter of John Smith, and Jonathan and Graham Jenkins, entered into a mutual bond, in which, reciting that there was a controversy between them concerning the will of John Jenkins and the purchase of real estate, they submitted the said controversy to the arbitrament of three persons named, or any two of them; and convenanted to abide by their award, in the penalty of two thousand dollars.
    Two of the arbitrators on the 22d of February 1854 made an award in the case, by which they awarded that Jonathan and Graham Jenkins were to keep the farm, by paying to Abraham Biston seven hundred dollars, in specified payments: Or if they should be unwilling to keep it upon these terms, and should express said unwillingness by 6 A. M. on the next Friday, then thejr awarded the farm to Biston, upon condition of his paying the above sum of seven hundred dollars in the manner specified.
    Within the time specified, Jonathan and Graham Jenkins gave notice to Biston, that they had agreed to abide the decision of the arbitrators and pay ‘him seven hundred dollars. And on the 27th of February 1854 Biston wrote at the foot of the award that he bound himself to make a good and warrantee deed against the children of John and Rebecca Smith and none others, within twelve months from that time.
    It appears that whilst the arbitrators were engaged in considering the case, a paper written by a person *in Pennsylvania, was put into their hands as evidence in the absence of the Jenkinses. One of the arbitrators who made the award says he had made up his opinion before he saw this paper, and that he did not use the paper as evidence at all. The other says he had made up his opinion before the paper was shown to him, and that he did not consider it as evidence; but it strengthened him in the opinion that no fraud had been committed. The contents of the paper do not appear.
    The Jenkinses having refused to execute the award, Biston and wife and the other children of John and Rebecca Smith filed their bill in the Circuit court of Preston county against them to enforce it; alleging that Biston was authorized by most of the other heirs to prosecute their claim for the land; and that he submitted the whole matter in controversy to arbitration.
    The defendants insisted that under the will of John Jenkins, John Jenkins Smith had the remainder in fee in the land. That if the arbitration only extended to Biston’s interest, the award was unconscionable; and that if it was an award for all the complainants, they were not bound by it; and therefore the defendants were not hound. That in fact the arbitrators were only authorized to decide upon Biston’s interest, and had exceeded their powers. That improper testimony had been submitted to the arbitrators without the. knowledge of the defendants. And that the plaintiffs had inherited real estate from their father John Smith, and were therefore bound by his warranty of the land to the defendants.
    The cause came on to be heard in August 1855, when the court .below held that the award should be specifically executed; and made a decree accordingly. Whereupon the defendant's applied to this court for an appeal, which was allowed.
    *Price and Brown, for the appellants.
    Fry, for the appellees.
    
      
      Arbitrators — Admission of Evidence in Absence of One Party — Effect upon Award. — For tbe proposition that, where arbitrators admit evidence without the knowledge or consent of one of the parties their award is void, the principal case is cited and approved in the following cases: Dickinson v. Railroad Co., 7 W. Va. 430; Fluharty v. Beatty, 23 W. Va. 707. See generally, monographic note on “Arbitration and Award.”
    
   SAMUELS, J.

It is unnecessary to the proper decision of this case to determine whether Abraham Biston could make a submission to arbitration valid in law to bind his own wife and other femes covert in their rights to real property; or whether the submission before us can be held to embrace those rights; or whether an intelligible construction can be placed upon the submission; or whether the award made is within its terms. If all these questions should be decided in favor of the appellees, still the decree directing the specific performance of the award must be reversed because of misbehavior in the arbitrators. The record shows that in the absence of the appellants, and without their knowledge, the arbitrators received from the appellees, or some of them, or from some one on their behalf, a written paper to be used as evidence upon the questions involved in the submission. What the paper contained, or whether its contents were sworn to, the record does not show. One of the arbitrators proves that, having previously made tip his opinion as to what the award should be, the contents of the paper had the effect of confirming him in that opinion.

It has always been an object of great concern with the courts to keep the administration of justice free not only from partiality, but also from any suspicion thereof. It is due to all parties, whether asserting or defending their rights in courts of record, or before domestic tribunals of their own choice, that they should hear and know everj’thing alleged or proved in opposition to the rights claimed. If, however, evidence on behalf of one party may be secretly heard, his adversary is deprived of the right to explain or disprove what is alleged to his prejudice.

*Many cases may be found affirming the position laid down: there is no conflict of opinion in regard to the general principle itself, although there may have been some in applying it to the facts of particular cases.

The case of Graham’s adm’r v. Pence, 6 Rand. 529, is sustained as well by the cases cited by Judge Carr, who delivered the opinion, as by many others. It may therefore be safely declared that an award cannot be sustained if made in favor of a party who has secretly offered evidence which has been received by the arbitrators whilst acting in their capacity as such. Nor will the case be withdrawn from the operation of the general rule by proof that the award would have been the same without such proof. The law in its jealousy will not permit an enquiry into the effect of the evidence so received ; it tends to partiality and corruption, and nothing less than the complete vacation of the award will satisfy the law.

There is no particular reason to impute improper motives to the artiitrators who made the award in question; they probably received the evidence in ignorance of the proprieties of their position.

It is said in behalf of the appellees, that the paper alleged to have been executed by the appellants after the award was made, agreeing to keep the land and pay the sum of seven hundred dollars, is in itself such a contract as the court should cause to be enforced. I am of a different opinion, however. The arbitrators had decided that the appellants should either give up the land and receive seven hundred dollars'from the appellees, or retain the land and pay seven hundred dollars to the appellees, and that the appellants should make their election in a limited time. The paper referred to was merely to show that, of the two alternatives offered by the award, the appellant selected to keep the land and pay the money; but it was in *nowise intended as a new and original contract of sale.

I am of opinion the decree should be reversed and the bill dismissed.

The other judges concurred in the opinion of Samuels, J.

Decree reversed and bill dismissed.  