
    Jones, Trustee, vs. Bond et al.
    
    Exceptions to Auditor’s Report, from Elbert. Arbitration and Award. Burden' of Proof. Practice in Superior Court. Husband and Wife. (Before Judge Lumpkin.)
   Jackson, C. J.

There are two modes provided by the Code fox the submission of matters in dispute to arbitration; one under the act of 1856, codified in §4225 et seq., and the other codified from the common law, in §2883 et seq. Under the former there must be three arbitrators; under the latter any number of arbitrators will do, and there need be no order to make the award the judgment of the court, but it is binding without, unless attacked for fraud in the arbitrators or party, or a palpable mistake of law, or reference to chance or lot. In either case, a guardian may make the submission and the award will be binding on the wards. Code, §§4225 et seq., 2883 et seq., 4228, 4248, 4225, 2884; 31 Ga., 3 ( 5 h. n.); 61 Id., 162, 164.

2. It is not incumbent on the court to send the case back to the auditor when that officer has erred on points of law, especially where no error hurt the movant therefor.

3. No opinion is expressed on the facts except in so far as the verdict conflicts with this opinion. Thus far, under the facts as they appear, it is contrary to law.

' 4. Where the auditor reports the facts, the jury may differ with him thereon. The controliug rule of law on the' subject of what is necessary to overcome the prima facie correctness of the finding having been misapprehended, it is best that the case be tried over, although it was contended that- the charge was favorable to the movant; especially where a general verdict was found, on exceptions to an auditor’s report, though by consent.

W. M. & M. P. Reese; John P. Shannon, for plaintiff in error.

W. D. Tutt; Jos. N. Worley, for defendants.

(a) The relation.bet.ween husband and wife is close, and the acts •of the two should be scanned closely where one holds himself out as the agent of the wife- This case should be tried over as to all of the plaintiffs.

Judgment reversed.  