delivered the opinion of the Court as follows.
In an action upon an award, or on the bond given for the performance of it, the general principle of law is that the merits of the award cannot be examined, nor can it be impeached, except for the corruption, partiality or misconduct of one or more of the arbitrators, or on account of some fraudulent concealment of facts *62by one of the parties. These positions are supported by the following-cases. 1 Saund. 327. note d. 2 Burr. 701. Kleine v. Catara 2 Gall. 61. 2 Vesey Jr. 15. Newbury Port Mar. Ins. C. v. Oliver & al. 8 Mass. 402. Homes v. Aery 12 Mass. 134. The receipt which was offered in evidence and rejected, if genuine and actually given at the time it bears date, viz — a short time before the decease of the testator, must in all human probability have been in the recollection of the plaintiff, at the time of the hearing before the arbitrators, and yet might have been wholly unknown to the defendant, as was alleged to be the fact. —The defendant, being an executor, and no party to the receipt, cannot be presumed to have known of its existence, till he found it among the papers of the deceased; and might have had no just ground to believe that the claim, which the plaintiff exhibited, had been paid and satisfied,until he examined the terms of the receipt. —The plaintiff and defendant stood on very different grounds before the arbitrators; — the one in his own right; — the other in his representative capacity; the defendants, stranger to the concerns of the estate, except so far as he was informed by others, on examination of books and papers; — the plaintiff., perfectly unacquainted with all the facts relating to his own claim against the estate, and the claim made against him. — Now, under these circumstances, if the receipt was really given by the plaintiff to the deceased at the time mentioned, in consequence of the payment of the claim which he presented to the arbitrators, and which was allowed by them, there is very strong ground to believe that he fraudulently concealed this fact from the arbitrators, for purposes wholly unjustifiable. If such was the fact, the award ought not to be sanctioned. — Upon consideration of the peculiar circumstances of this case, we are of opinion that the verdict ought to be set_ aside and a new trial granted, that the facts in relation to the receipt, — its genuineness, and the alleged payment, upon which it purports to have been given; and also the question of concealment, may all be investigated by the Jury.
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