The opinion of the court was delivered by
Eedrield; Ch. J.This was an action of debt upon an award of arbitrators. At the trial, the defendant offered evidence that certain costs between the parties, which the award, in terms, provides shall be paid by the parties respectively, were, by mistake and purposely both, included in the award; and also, that'the amount awarded against defendant was, in part, made up of claims which were allowed without any evidence, and solely upon what the arbitrators heard out of doors, from the neighbours, in the absence, and without the, knowledge of the parties. The two propositions amount to mistake and irregularity of conduct in the arbitrators, both or either of which are sufficient grounds for correcting the award in equity. But neither go to the whole award, and have not ordinarily been regarded as any ground of defense at law. There may be some cases where defenses, somewhat similar, have been allowed at law. But the great current of authority certainly, both English and American, is against such defense at law, unless where the arbitration is under rulé of court.
A plea that the arbitrators, from mere mistake, error, and misapprehension of the law, right and justice of the case, allowed interest upon the plaintiff’s claim, and denied it upon the defendant’s, is no defense. So the defendant cannot plead partiality or improper conduct of the arbitrators. Williams v. Paschal, 4 Dallas 284; Braddish v. Thompson, 8 East 344. Such proof is not good on a plea of nil debet to an áction of debt on the award; Wills v. Maccarmick 2 Wills. R. 148. So a plea that the arbitrator denied the party the right to examine witnesses to a point, but heard those of the other party, in his absence, and without his knowledge, is bad Shannon v. Wood, 5 Halsted 7.
But it has been held that a plea that the arbitrators refused to hear a portion of the claims submitted is good in defense, at law, even. Harkee v. Hugh, 2 Halsted, 428. This decision is put upon the ground that, if the arbitrators do not award upon all the *84matters submitted, tbe award is no compliance with the conditions of the bond, and therefore imposes no duty upon the party to perform. it. But to such a defense, it is essential that the proof show that the matters not awarded upon were presented to the arbitrator with proper proof.
I think it has generally been considered in courts of law, that all defenses to awards, where the submission and award were in writing and under seal, for matters not apparent upon the papers, must be pursued in equity. And this rule has been considered to rest, as to mistake of the arbitrators and irregularity of conduct by them, upon the same' ground that courts have refused to set aside a written contract between parties in a trial at law, upon the alleged grounds that, by mistake, the contract did not read as it was intended to. And, in regard to the conduct of the arbitrators, it has been considered, in some of the cases certainly, that the arbitrators were necessary parties to any proceedings based upon such a charge. 'Mere mistakes, or irregularity, short of positive corruption, might not require any explanation at the hands of the arbitrators. And it is difficult to perceive how, in any case, they are proper parties to a litigation, in regard to the validity of the award. And I doubt whether, upon principle, any corruption in the arbitrator or judge, unless with the procurement, or privity of the prevailing party, is any defense to an award, in a court of law. And if the corruption of the arbitrator be with the privity of the party, it is fraud, and is equally a defense at law, and in equity, as well as to specialties as simple contracts. But I do not say this is yet determined as to awards. But it is settled, we think, that the testimony offered was no defense, at law, to the action upon the award, and was therefore properly rejected.
The awarding mutual releases is well enough, as, whether executed or not, the award is a bar to all claims, where the submission Is of all demands.
Judgment affirmed.