The opinion of* the court was delivered by-.
Buchanan, J.Samuel Owings by his will, dated the.*7th of May 1803, among other things, devised certain lands to William Owings, his executor, to sell, and the pro-, ceeds to be distributed among eight of his children named in the will, of' whom. Beale- Owings was one. The testator also bequeathed the proceeds of certain personal property to be distributed in like manner. One of the eight legatees is since dead, having issue two children.
The bill is by six of the legatees named in the will, and the two children and representatives of the deceased legatee, calling on the executor and trustee to account and pay to them their respective proportions; and Beale, Ow« mgs¿ the other legatee named, is not made a party to the-
*12r proceedings either as complainant or defendant. The chancell or, by agreement in writing of the respective solicitors, passed an order referring the. Watters in controversy between the, parties fo referre'e's named in thg. agreement, whey returned an award ascertaining the sum due to each of the, complainants, and directing the same to be paid to them respectively by the defendant, and also directing the defendant, by a good an.d sufficient conveyance, t.o' transfer. pertain lands, bonds, &c.’ to a trustee to be appointed by. the chancellor. Objections were, filed by the defendant tó a decree being passed on the award, founded on objections raised to the award itself, and also on the circumstance, that Beale Owings was not made a party to the proceedings; whereupon the chancellor passed an order, in widely he expressed the opinion, that Beale Owings ought, to have, been made a party to the. proceedings; that the arbitrators had exceeded their powers in awarding a change of, trustees; and that Pet ex Hoffman had exercised an. improper influence over the arbitrators — and, afterwards dismissed, the bill for want of proper - parties. First, then, as to the, award: — It is clear that an award upon a reference to arbitrators,. cannot be impeached for. erroneous judgment upon facts; but the arbitrators, being judges chosen by the, parties themselves, their decision on matters of fact caniiot be reyiewed, hut is final and conclusive, where there is, no imputation on their conduct, Morgan vs. Mather, and Dick vs. Milligan, 2 Vesey, Junr. 14, 24. The subject of. the award ip tips case, being matters of account, they were facts, on which it was the province of the arbitrators to, decide, and their judgment cannot be inquired into, but the parties are concluded and bound by it, Unless á foundation is laid for setting aside fheir áward, by an imputation on the ‘conduct of the arbitrators. And no such 1 * '• T • ” ' ¡ 1 > . ... t foundation is laid, the objections to the award being all. confined to the decision of the arbitrators on questions of fact, except so far, as in the opiniop of the chancellor, diereis a. colourable, charge of improper influence practiced by Peter Hoffman upon the arbitrators, and except piso the objection to so much of the award as is alleged.'to be without the submission. Exceptions to an award cannot be founded upon any thing dehors, but must always 'be confined to matter appearing upon the face of it, 'compared with the proceedings in the cause, and are never beard *13Upon affidavits. But if it is proposed to set aside ati| award for any matter dehors, as corruption or misbehaviour on the part of the arbitrators, or other charges to be sustained by evidence, it can only be done on motion supported by affidavits. Dick and Milligan. 2 Vesey Jr. 24 With respect therefore to the supposed influence exercised by Peter Hoffman oyer the arbitrators, being altogether dehors the award, it cannot be r.ecejved or acted upon to the prejudice of the award, in the form of exception, but ought to have been proceeded on by way of motion to set aside the award. But if it could be taken advantage of by way of exception, or if in the place of an, exception to the award, it had been made the foundation of a motion to set it aside, apd could now be so considered, there is nothing whatsoever in the record to sustain.it. The letter of the 15th of October 1819, from the arbitrators to the defendant, on which the opinion of the chancellor was founded, and which is now relied upon to show the undue influence of Peter Hoffman over the arbitrators, does not seem to this court to furnish the slightest ground for such an imputation. The sole, office of that letter was to inform the defendant that the account he had exhibited to, them, had been submitted to Peter Hoffman, acting in behalf of the complainants, and thpt he had insisted on. proof being made of all, the charges it contained-^-with a request, that be would furnish such proof, and also let them know whether he had any further account to produce. If the arbitrators had acted on, that account, without requiring proof of the charges it contained, or letting the complainants, or their agent, know that such a paper had been, exhibited, there would perhaps have been cause for complaint on the other side — or, if they had rejected the account, without affording the defendant an opportunity of proving it, or had refused to receive evidence in support, «f it, then indeed a charge of misconduct on the part of the arbitrators would have had some ground to stand upon; but it is difficult to perceive how any imputation an the conduct of the arbitrators can arise from that letter. The other objection, that apart of. the award is not within the submission, being to what arises on the face of the award, it comes properly in the form of an exception; and it is very clear, that so much of the award, as respects the removal of the defendant as trustee, and the appointment *14of another trustee by the chancellor in-his place, is. without the submission, and void. But it is well settled,, that: if an award be both of matter, that is submitted,, and of that which is not within the submission, it may be good as to all that is within, the- submission, and void as to the residue. 1 Bac. Ab. tit. Arbitrament and Award, and the-authorities there referred to.. Therefore, though a part of this award is of that which is not submitted, and consequently void, yet being entirely distinct matter, it does, not vitiate or affect so much of the award as is within the. submission, but as to. that the. award is good, being of.' what does not depend upon the matter awarded, without the terms of the submission.. As to the objection, thatBeale Owings ought to have been made-a party, the, ground on which the. bill was dismissed by the chancellor, it is a general, rule, that all persona should be made par-, ties who are either legally or beneficially interested in the. subject matter and result of the suit; and admitting, that in a different state of-things it would have,been proper- and necessary to have made-him a party, being a legatee, named in the will of Samuel Owings; yet under the circumstances of this case, thaf-necessity does not exist. Be-, fore the institution of this suit-, Beale Owings had himself-filed a separate bill in chancery against the defendant William Owings; and on the 22<1 ot January. 1819, this bill; was filed- on the same day the answer was put in, and received by agreement without oath; on the same day also, the-parties, complainants and defendant, filed-a written agree-, ment, signed by their respective solicitors, to refer the mat-, ters in controversy between them to David Williamson^ David Winchester and Henry Brice, in pursuance of a re-, quest on the part of the defendant contained in a paper-filed in the cau se, dated, the 22d June 1818, and signed by him and Peter Hoffman,' one of-the complainants, in which, also the answer before put in. by him to die bill of Beale Owings, is- directed by the defendant, William Owings,, to be copied and filed in this suit, then about to be brought, the object of which is stated to be an amicable adjustment of the estate of his father; and on the next day, the 23d of January 1819, the chancellor passed the order, referring the matters in dispute to the persons before named and agreed upon. Thus it is manifest, that this was originally an amicable proceeding, and that it was perfectly undeiv stood and agreed upon, before the bill was filed, that Beale *15Swings should not be made a party, but that the defendant, and these complainants alone, would proceed to a settlement of their affairs* leaving him’to pursue his own course. How else can the agreement of the 22d of June 1818 be understood? The suit had not then been brought, but is there treated of as an amicable bill about to be filed, with authority giveri by T'Hllimh Owings to a solicitor to appear to it for him; and his instructions that a copy should be taken and filed of the' ánswer he had made to the bill of Beale Owings, show that that case wás then present to their minds, and that the bill about to be filed, was mutually agreed upon, for the purpose of adjusting the separate claims of these complainants by arbitration, under the sanction of the court of chancery. It was in conformity to, and in furtherance of these views of the respective parties* that the bill and answer, and the agreement by their solicitors to refer the suit, were filed on the same day, without process to bring in the defendant, or requiring the answer to be on oath; and-the deed from William Owings of the SOth of March 1819 to Thomas Moale, Peter Hoffman and George Winchester, soon after the bringing of this suit, to secure the payment of the supposed amount of the respective claims of these very complainants, furnishes additional evidence of the understanding of the parties before and at the time the bill was filed. Surely, without calling in aid a court of justice, the defendant rind these complainants, or either of them, might have submitted the matter in dispute between them to arbitration, arid the award, when made, would have been binding and conclusive' upon them; arid if so, there is nothing to prevent their resorting, by consent, to a court of chancery, to effect that, under the sanction of a rule of court, which might have been done by submission out of court without suit; and it does 'not lie in the mouth of (he defendant to object, that Beale Owings ought to have been made a party, after putting the complainants to the trouble and expence of a suit in chancery, on the faith of his agreement. But the order of refeTence being made with the assent of his solicitor, at his express request, the award, so far as it is within the submission, is obligatory upon him; and Beale Owings, not being a party to the submission, and altogether unaffected by it, there would have been no propriety in making him a party to the suit afterwards, for the purpose of a decree upes *16ilie award, in which he was in no way concerned, any moré than it would be necessary to.unite him in a bill to enforce the execution,of án award made on a submission by William Omngé and .these complainants, to which he was not apárty, or in a bill ip chancery to foreclose a mortgage, given by William Owings to these, complainants; o,r any of them) to -secure the payment of their respective claims; in neither of which cases can it be pretended, that Beale Oipings would be a necessary pá'iMy* The agreement by Wiliam Owings, tliat a bill should be filed by these complainants alone, was a contract by which he was bound and estopped to object; in Violation óf his agreement, to a decree upon the award, on the ground .that Beale Owings was not a party to the suit. We, therefore think, that the chancellor erred in dismissing the bill fot that reáSori;
¿ECB.EE REVERSED; &C,