
    No. 53. —
    Wiley Tyler, plaintiff in error, vs. Solomon Stephens and another, adm’rs, &c. defendants.
    
       The testimony of a subscribing witness to a submission and award, is the best evidence of their execution.
    
       In a bill filed to set aside an award, the defendant may rely upon the award in defence without pleading it.
    
       Ignorance of one’s legal rights in ratifying an award; Held not to be sufficient to set it aside.
    In Equity, in Upson Superior Court. Tried before Judge Floyd, April Term, 1849.
    In 1840, Wiley Tyler purchased of Charles Cox a tract of land, and being unable to pay for it, it was agreed that the deed should be made to John Stephens, who should pay the purchase money, and retain the deed until Tyler re-paid him the amount advanced; for which amount Tyler gave Stephens his note, after deducting about $100, due from Stephens to Tyler. In March, 1843, Stephens died, having in his possession both the deed and the note — Tyler being in possession of the land. Difficulties having arisen about this matter between Tyler and the administrators of Stephens, in February, 1844, the same were submitted to arbitrators, selected by the parties. In the written submission there was the following clause: “ It is understood and agreed, that each party has the right to reject said arbitration or award, and that nothing said or done is to operate against them, in future, in Law or Equity.”
    The arbitrators returned an award, requiring the administrators of John Stephens to deliver up to Tyler his note, and that Tyler deliver up the possession of the land. Upon the award was indorsed and signed by both parties, their ratification, and in pursuance of the award, the land and note were mutually delivered up. Both the submission and ratification of the award were attested by O. C. Gibson.
    Subsequently, Tyler filed a bill, charging the foregoing facts, and alleging that he had paid off the note to John Stephens during his life; that the award was obtained fraudulently, and if he had ever ratified it, it was in ignorance of his rights, he believing that under the terms of the submission he would not be estopped by the award at any time ; that he had discovered evidence since the award, material to him. The bill prayed the conveyance of the land, notwithstanding the award.
    The answer denied every equitable allegation in the bill.
    Upon the trial at April Term, 1849, O. C. Gibson, the attesting witness, was offered to prove the submission and the ratification. Counsel for complainant objected, because the best evidence was the arbitrators themselves. The Court overruled the objection, and exceptions were filed.
    The submission, award and arbitration were offered by defendants, and objected to by complainant, because there was no plea of the award or cross bill setting it up in bar, and because the subtnission was signed by the administrators as individuals, and not in their trust capacity. The Court overruled the objection, and exceptions were filed.
    Counsel for complainant requested the Court to charge the Jury, “ That if Tyler accepted the note and gave up the possession of the land, in ignorance of his rights, and believing this was no ratification, it was not binding on him under the circumstances.”
    The Court refused so to charge, but said to the Jury, that if the complainant ratified the award, he was concluded by it, unless the award was collusive and fraudulent.
    To which charge, and refusal to charge, complainant excepted.
    Evans and Hammond, for plaintiff in error.
    Ezzard, representing Gibson, for defendants.
   By the Court.

Nisbet, J.

delivering the opinion.

If is claimed, here, that the Court erred in admitting the evidence of Mr. Gibson to prove the execution of the submission, the award, and the written ratification of the award. I cannot see upon what ground the exception goes. He is the subscribing witness to all these papers, and the very witness to be produced. His is the best and highest evidence, and if he can be produced, and can be examined, he must be produced. 1 Phillips’ Evid. 464, 465.

Again, it is claimed that the Court erred in admitting the submission and award, because they were notpleaded. The plaintiff in error insists that the defendant cannot avail himself of these in defence, but by plea or by his cross bill. How can this be so, when the complainant sets out the submission and award, and charges that they are void ? The answer sets up the award in defence, it being responsive to the bill. Both the bill and answer put it in issue. There is surely nothing in this exception.

The plaintiff in error asked the Court to instruct the Jury, that “ If Tyler, (the plaintiff,) accepted the note, and gave up the possession of the land, in ignorance of his rights, and believing that this was no ratification, it was not binding on him under the circumstances.” The Court declined so to instruct the Jury, and that is excepted to. The note referred to and the land were the matters submitted to arbitration. The- award was, that the defendant deliver the note to the plaintiff, and that plaintiff deliver the possession of the land to the defendant: _ which was done, and thus the award was ratified by execution. Not only so, but the parties executed a written ratification of the award, on the day it was made. In the submission, it is stipulated that each party had the right to reject the award, and that “ nothing said or done is to operate against them in future, in Law or in Equity.” These are the circumstances of the case. Under these circumstances, the request is, that the Court charge the Jury, that if they believe that plaintiff accepted the note, and gave up the land, in ignorance of his rights, and believing that this was no ratification, it was not binding on him. Ignorance of the law will excuse no man — mistake sometimes will. (See ante, Culbreath vs. Culbreath, decided at Americas, in July, 1849.) Butapaxly cannot be relieved from the consequences of a mistake of the law even, unless it is clearly proven ; and it would be a presumption, in the teeth of all the facts, to suppose that there was ignorance even, in this case, on the part of the plaintiff of any legal rights. A submission is solemnly made — an award rendered-; — a written ratification of the award — an acceptance of the note awarded to him, and a surrender of the possession of the land awarded to his adversary — and still the plaintiff claims to open the award, because of his ignorance of the legal consequences of his acts. If ignorance could relieve him, (and it cannot,) ignorance cannot be imagined from these facts, all disclosed by the record. Stress was laid in the argument upon that stipulation in the submission, to the effect that nothing said or done by either party, should operate against them in future, in Law or in Equity. If that is construed to mean that neither party should be estopped by the award, if they thought proper to reject it, yet still it became binding when they ratified it. If it is claimed to mean that each party might ratify and execute the award, and still open the whole to litigation whenever they please to do so, I can only say, that such a thing is too absurd to be believed or entertained for a moment. I apprehend that all the parties meant by it was, that if the award was finally rejected, their sayings and doings, in-their efforts at an arbitration, should not be evidence against them in future litigation. An award is conclusive at Law,upon the parties, as to all matters submitted and acted upon by the arbitrators. Equity will set it aside for fraud and some other causes, but not for a party’s ignorance of his legal rights. Certainly not under circumstances like those developed in this case. The presiding Judge instructed the Jury right, when he told them, that if the parties ratified the award, it was conclusive on them, unless it was collusive and fraudulent.

Let the judgment-be affirmed.  