The opinion of the court was delivered at the circuit session in May, 1857, by

We are asked to set aside the award in this case upon two grounds, the misconduct of the arbitrators and the fraud of the defendant.

I. In regard to the misconduct of the arbitrators, we are not satisfied that it was intentional, or so gross as to justify a court of equity in setting aside the award. The transactions at the trial were sufficiently discreditable to any attempt at judicial administration, even an arbitration. Rut these things are so little under the control of an ordinary neighborhood arbitration that we should be very liable to do great injustice in supposing that any of the arbitrators really intended to countenance the misconduct which, on the most favorable construction, certainly did occur there. We need therefore say no more upon this point.

II. In regard to the fraud of the party, we would have been glad to come to the same favorable result, but it is admitted that fifty dollars was allowed twice by the arbitrators, and we do not see how any one could question it. This fifty dollars was paid for the rent upon the store on the 8th of December by a credit on Carter & Bliss’ books, for the rent from the 10th of February to the 10th of August, 1857. And the same fifty dollars was endorsed upon the lease. These entries are described by Russ, that on the lease being made by him, and that on the book either made by him or in his presence. There is no ground whatever to question the fact of there being but one payment made, and there is no reasonable doubt in our minds that a comparison of the entries would have shown at the arbitration (if Cutting had been allowed, as he should have been, free inspection of the books and papers) that the two entries were for the same thing. But the *76lease and the books were studiously kept away from Cutting, and they are as studiously kept out of the case now. This satisfies us that if produced they would make the identity of these charges obvious, and that there is no reasonable ground of explaining this wonderful circumspection in regard to the free production of those books and papers, but the consciousness in Carter that such is the necessary inference from a critical inspection of the books and papers. And we can only conclude that the defendant believed, at the time he presented and was allowed the fifty dollars at both dates, that it was but one payment, and that if Cutting had the free inspection of the papers he would discover their identity, or else that the entries were made by Russ, and thus get the clue to showing their identity by Russ, but that he expected by keeping the books and papers away from Cutting and only submitting them to the arbitrators this would not be discovered. This was presenting a claim which the defendant believed to be fictitious, and upon a factitious state of the evidence within the rule laid down by this court in Emerson v. Udall, 13 Vt. 477. Indeed all the cases seem to justify setting aside an award upon this ground, and many of them for reasons less specifically fraudulent.

We have critically reviewed the case since the argument. The defendant obtained this double allowance before the arbitrators upon the shallow device that he paid the rent when due, August 10, 1851, and then so completely forgot it in four months that he paid it again December 8, 1851, when the facts were that he made no payment of that rent till December 8; and it was entered on the lease by Russ, and the entry signed by the orator as a payment of rent due August 10, and it appeared that it was paid when due from the date.

We think, too, that it is impossible to explain the conduct of the defendant in regard to the charge for four barrels of flour in March in connection with the evidence, without adopting the view that the entries in the flour book of the defendant were altered as to their dates, so as to meet the testimony of Tracy; and that the plaintiff was in that manner deprived of the allowance of four barrels of flour, which he was justly entitled to be allowed, and would have been allowed but for this fabrication of testimony on the part of the defendant.

*77This is not absolutely certain, except from the inferences which every inquiring mind must necessarily make against a party who studiously keeps his book out of sight when there is an allegation of the alteration of dates, and proof tending to such a result. If the books would refute such a charge, one would be quite beyond the common grade of simplicity to keep them so close, and counsel who should advise such a course, or who suffered it to be done by the party, must be supposed to do it understandingly, and to be aware of the penalty under which it is done, i. e., that the presumption will be against them. We think, therefore, that the decree of the chancellor must be reversed and the case remanded to the court of chancery with directions to pass a decree for the orator, according to the prayer of the bill.

Smith, one of the arbitrators, testifies in this case that he is now satisfied that the four barrels of flour should have been allowed by the arbitrators, but were not; and he thought and said at the arbitration that Cutting should have the inspection of the books, that a party might discover what the arbitrators would not, which is certainly very sensible.

The defendant’s own witness, Gould, testifies to seeing the flour book in the defendant’s possession between the time of giving his two depositions, and still to his refusal to produce it on the examination' of witnesses.

Paige testifies ,that the defendant declined to produce the lease at the taking of testimony, and it was not produced on the hearing, or the books.

The arbitrators testify that the fifty dollars was allowed as of both dates, and 'there is no pretense of a double payment; and Russ testifies expressly, that both entries were made for one payment, and if the orator could have seen the entries, there is no manner of doubt he would have explained it at the time. So that in every respect a re-examination of the case confirms the opinion written "at the hearing as the unanimous impression of the court from the testimony and argument.