The opinion of the court was delivered, by
Strong, J.The award upon which the suit was brought was made under a submission which the parties had bound themselves to make by their articles of copartnership. The agreement of submission contains no stipulation that an award made under it should not be subject to exception for any cause, but the articles of copartnership which proAdded for the submission, declared that the aAvard of the referees, or a majority of them, should be final, conclusive, and binding on both partners, and “ that there should be no appeal.” As the award was at common law, and not under *26any rule of court, it is not easy to perceive that the express exclusion of any right of appeal, and the provision that it should be “final, conclusive, and binding upon both partners,”give to it any different effect from that which belongs to common law awards generally. If they follow the submission they are binding, without any express agreement that they shall be so. Nor are they to be set aside merely because the arbitrators have mistaken the law, or made a mistake of fact. Certainly they are not, when no mistake appears on the face of the award. By the submission the arbitrators are made judges of the law and of the facts, and the parties agree to be bound by their decision. They take the hazard of mistake in the tribunal which they have selected. In awards made pursuant to submissions, made a rule of court under the first and third sections of our general arbitration law (Act of 16fch June 1836, P. L. 717), exceptions may be taken for plain mistakes of the arbitrators in matter of fact or matter of law, as well as for misbehaviour of the arbitrators or corruption. This is allowed by the fifth section of the act, and it was the practice before the act was passed. So mistakes in fact or law may be averred against other awards made under voluntary submissions in pending actions, by the express provisions of the seventh section. This seems very fit, for in both cases the awards are returned to the court, and are to be enforced by attachment, execution, or judgment. Undoubtedly the parties may, by their agreement, debar themselves from the right of taking exception, and the court will enforce their agreement, by refusing to sustain any exceptions filed in violation of it. This was ruled in McCahan v. Reamy, 9 Casey 536, where reference is made to many of our decisions. And if the award upon which this suit was brought had been made pursuant to a submission under rule of court, or in a pending action, the stipulation against appeal in the articles of copartnership might have been replied successfully to any attempt to set it aside for mistakes of law or fact. But none of the cases have gone so far as to hold that corruption or misbehaviour of the arbitrators is remediless, when the parties to a submission have agreed that there shall be no exceptions, or appeal. And there is no more reason why a common law award should be unassailable for these causes than there is for protecting a statutory award against them. In neither case can it be presumed that the parties intended or agreed to be bound by anything short of an honest exercise of the judgment of the arbitrators upon the questions submitted. Mistakes they may have considered possible, and assumed the risk of them, but misconduct of the selected tribunal is a thing not anticipated, and therefore not waived by any agreement to submit to the award.
Unless, then, the evidence offered and received in the court below tended to prove something more than mere mistake of fact *27or of law; unless it went to establish misbehaviour on the part of the arbitrators or the plaintiff, it was inadmissible to affect the award upon which this suit is brought. That a plain mistake was made is clear, but that is not enough. Was there misbehaviour ? It is manifest that there was. By the agreement of submission the matters in dispute between the parties tvere to be specifically written out by each of them, and submitted to the referees. But there was no agreement that ex parte testimony might be taken to sustain the statement of either party, much less that a party’s own ex parte affidavit might be taken to sustain his statement without the knowledge of the other party, or that unsworn declarations of an interested witness might be privately received. Yet all these things were done, and all of them are against common right. Without notice to the defendant, and in his absence, the' party who sets up the award, handed to the arbitrators his affidavit that the sum of $640 had not been paid, when in fact it had, and the arbitrators solicited and obtained an unattested statement from the partner of the plaintiff, of both which the defendant had no knowledge. These -statements were considered by them while deliberating upon their award, and doubtless contributed to the mistake into which they fell. While for the mistake itself the award cannot be impeached, for the misconduct of the party, and of the arbitrators it can, and these modes of procuring evidence in the absence of the defendant, and without notice to him, were manifest misbehaviour. In Cameron v. Castlebury, 29 Georgia 495, it was held that if arbitrators consider, in making up an award, a paper which they obtained without the knowledge of the losing party, the award must be set aside. See also Emery v. Owens, 7 Gill 488.
It follows that there was no error in receiving the evidence objected to, nor in the judgment on the reserved questions.
The judgment is affirmed.