delivered the opinion of the court.
Defendant in error sued plaintiff in error, in an action of debt. At the return terra of the writ, and before declaration was filed, the cause by rule of court, was referred to the arbitrament of two persons. These persons with a third not named, in the rule of reference, returned to court an award, in favor of the plaintiff below for several hundred dollars. A motion was made by the defendant below to set aside the award, and.refused by the court, and judgment was given thereon. Several grounds for the reversal of this judgment have been urged in argument here; on one of which only, do we place our action in reversing the same.— At the time of the award, as appears by the affidavit of the defendant below, and one Lenoir, it was known to the plaintiff that the defendant had mislaid and could not find a receipt in full, signed by the intestate of the plaintiff below, of the very claim of the plaintiff which he sought to recover; and the case being in this situation, it was expressly agreed between the plaintiff and defendant, before the arbitrators proceeding in the case, that if the award, when given, should not be satisfactory to both parties, it should be binding on neither, but they should return ■ the same to court, and proceed in the trial of the cause as if it had not been made. The award was not satisfactory to the defendant: he has since found his receipt, and wishes to try the cause. This is in our opinion, “procuring an award by undue means.” After making such an agreement, it is fraudulent, and in bad faith, to insist on the award. But for this agreement, the submission might have been withdrawn, or some other step taken. However awards may be favored, or however difficult adjudications upon the subject may have made it for the parties to set them aside, we apprehend that fraud or want of good faith in the parties, or the making agreements with the purpose to entrap, and obtain undue advantage, will avail to set aside the judgments of these domestic tribunals, as they certainly will to set aside the most solemn proceedings in courts of record.
Upon this ground, therefore, well sustained by the affida*174vits, we are of opinion, that the judgment be reversed; that the award be set aside, and that the cause be remanded to be proceeded in.