
    *J. L. Richmond & Company, plaintiffs in error, vs. Phillips & Flanders et al, defendants in error.
    (Atlanta,
    January Term, 1873.)
    Award — Exceptions—Evidence.—When exceptions were filed to an award, which were on demurrer held by the Court below to be insufficient, and it appeared by the record that the exceptions were on the ground of a mistake alleged to have been made by the arbitrators in charging the excepting parties with certain items, especially one of $3,500 which, it was alleged was clearly not a proper charge against him as would appear by the evidence, which evidence was partly set forth in the exceptions and partly, referred to as contained in the books of the parties who were merchants, which books, the exceptions stated, were in the presence of the Court, but being voluminous, were not attached by abstract:
    Held, That the contents of the books were a necessary part of the exceptions, and the plaintiff in error having failed to complete his record in the Court below by having such abstract in fact attached and sent here as part of the record, under the certificate of the Clerk, this Court will not reverse the judgment of the Court below, it being impossible for us to say, in the absence of said abstract, whether he was right in his judgment or not.
    Award. Exceptions. Evidence. Before. Judge Hopkins. Fulton Superior Court. April Adjourned Term, 1872.
    Two suits were pending in Fulton Superior Court against J. L. Richmond & Company, one in favor of Phillips & Flanders, and the other in favor of William R. Phillips. They were referred to arbitration and awards made in both cases against the defendants. Exceptions were filed to the awards, containing all the evidence submitted to the arbitrators, except the books of account which were used by consent at the hearing without being incorporated therein. Reference is made to the evidence in the various exceptions as sustaining them. The exceptions were overruled, and the awards made judgments of the Court. Neither the books of account, nor any abstract therefrom were embraced in the exceptions passed upon by the Court below, nor in the bill of exceptions by which the case was brought to this Court.
    Richmond & Company excepted to the decision making the awards the judgments of the Court.
    *Gartrell & Stephens; Peeples & Howell, for plaintiffs in error.
    P. L. Mynatt, for defendants.
   McCay, Judge.

When an award is returned to the Superior Court and spread upon its minutes, it is subject to exceptions, on the ground that it is the result of accident, mistake or fraud of some one or all of the arbitrators or parties, or is otherwise illegal. These exceptions must be in writing and be under oath: Revised Code, section 4184. If the • exceptions set forth such facts as show that if these facts be true, any of the causes for setting aside an award exist, and the statement is not diputed, it is a mere question of law whether the award falls or not. There is no issue, no question of fact for trial, and the jury has nothing to. do with it. If the exception be that there was a mistake made of a material character, in its effect upon the result, such a detail of the facts must be made as will satisfy the Court that if they be correctly stated, there has been such a mistake as requires the award to be vacated.

In the case now before us, the excepting party alleges a mistake in this, that the evidence before the arbitrators is so distinct, clear and uncontradicted, that Phillips never paid the $3,500 00, or arranged it for their benefit and to their credit with Phillips & Flanders, that it only can be by some strange mistake that the arbitrators have decided in his favor ón this point.

We are not clear that the evidence as set forth and actually contained in the exceptions does not affirmatively show sufficient to rebut this presumption, since both Phillips and his son swear that Richmond & Company did get credit on the books of Phillips & Flanders for this sum, and it may be that the arbitrators did in fact deduct it from Phillips & Flanders’ account. It is plain that they deducted something, since they reduced-the account to less than $5,000 00. But the exceptions *show that the books of Phillips & Flanders and of Richmond & Company were before the arbitrators, and that the Judge in his decision of the demurrer was, by consent, to consider the books — then in Court — as before him, and as forming an exhibit to the exceptions.

It appears that this exhibit has never been perfected. The record, as now before us, under the certificate of the clerk of the Superior Court, contains no such abstract of the contents of the books.

It is true that the record does contain a long account of Richmond & Company attached as an exhibit to their plea in the original suit, and also an account of Phillips & Flanders’ attached in the same way to their original declaration. But both of these only purport to be the debit side of their respective books, and we do not know that the books, if inspected, would support either of them. It is also true that the bill of exceptions contains an account of Phillips & Flanders, with an admission that this is their account as introduced in evidence to the arbitrators; but even this does not purport to bt an abstract of the books as they were before the Judge at the hearing. An abstract of these books is a necessary part of a complete record of the case. The contents of the books were a necessary part of the exceptions to the award, and though the parties might consent for the Judge to use the books instead of an abstract of them, the record is not perfect for a hearing before this Court until that abstract is attached to the exceptions. We can only know what the record is by the certificate of the Clerk, or by the agreement of the parties, not even the Judge has a right to certify what the record is.

We cannot, therefore, undertake to do anything but affirm this judgment. The parties have seen fit to come before us with a record that does not show the Judge to be in error.

Judgment affirmed.  