
    *WILLIAM M. ANDERSON, administrator, plaintiff in error, v. THOMAS L. TAYLOR, trustee, defendant in error.
    (Atlanta,
    June Term, 1870.)
    1. ARBITRATION AND AWARD—FAILURE TO FURNISH COPY OF AWARD—When the arbitrators failed to furnish the party who objects to the award with a copy, as required by Section 4183 of the Revised Code, but the party appeared at the first term of the Court and filed his objections to the award, and did not show that he was taken by surprise, or lost any right by not having notice of the award, he is not injured by the failure of the arbitrators to furnish the copy, and the award will not, on that ground, be set aside.
    2. SAME—SETTING ASIDE—UNCERTAINTY.—An award will not be set aside for uncertainty, when it is capable of being made certain
    3. SAME—SAME—FRAUD—ERROR OF JUDGMENT OF ARBITRATORS—The award in this case is not so outrageous as-of itself to constitute conclusive evidence of fraud or corruption. Error in judgment in the arbitrators is not a sufficient ground for setting aside an award. Nor will it be set aside on the ground that it is contrary to evidence, if there is any evidence to sustain it.
    
      4. SAME—SAME—STRICT COMPLIANCE WITH STATUTE. —Arbitrations are favored by the Courts, and he who- attempts to set aside an award must comply strictly with the requirements of the statutes, or he will not be heard.
    5. PRACTICE—'ORDER OF CAUSES—TRANSFER.—The Court will not, by consent, transfer a cause to the end of another Circuit, but will transfer it to the end of the entire docket, by consent. (R). See note at the end of the Report.
    Arbitration and Award. Certainty. Before Judge Alexander. Pulaski Superior Court. October Term, 1869.
    This case is bottomed upon the submission to arbitration of two actions of ejectment pending in said county. ’ One was in favor of Thomas L. Taylor, as. trustee for his wife, formerly Mary J. Pickett, against William M. Anderson, as administrator of William W. Mayo, for the north half of land lot number one hundred and eighty-four, the south half of number one hundred and eighty-five, all of numbers one hundred and ninety four, one hundred and ninety-five, a part of number one hundred and ninety-six, being a strip on the southeast side of the Hawkinsville road, containing in the aggregate four hundred and five acres, in the 12th district of said county. The other was by the same plaintiff against one Polhill, who held under said Mayo, for a portion of the same land. Those suits were brought in March, 1863, in thé lifetime of Mayo, and to each the general issue and statute of limitations were pleaded.
    *In January, 1866, said plaintiff and said Anderson, as administrator, submitted these suits and the matter of mesne profits to arbitrators who were to decide the same, acting according to law, unless a legal right was waived by either, pending the cause. The submission stated that these lands in the first suit named were “the same as sold by John Pickett, as administrator of James Pickett,” and that those in the second suit named, were “for a portion o'f the same lands bought by John H. Pickett from the estate of James Pickett, and which W. W. Mayo sold to Mrs. Jane Pickett, the grantee of said Polhill, and liable over for same on his warranty of it all.”
    The two arbitrators selected by the parties, selected their umpire. What proceedings were had before them does not appear by the record, except as hereinafter is stated. In August, 1866, they made an award as follows: “that the plaintiff do recover the portion of land named, possessed by William Wv Mayo at his. death, except the ten acres of land deeded to Henry Anderson, the said amount land so awarded amounting to three hundred and ninety-four acres. We also decide that the amount received from the estate of John H. Pickett ($1,500 00) sufficient as a rebuttal of rent of said land.” This award was entered upon the minutes of the Court at October Term, 1866.
    Anderson filed exceptions to it upon the following grounds: 1st. ‘Because neither he nor his counsel were ever served with a copy, of the award before the term, nor within the first three days thereof, and never saw the original till the term. 2d. Because “the evidence before the arbitrators showed that the defendant’s intestate, and those under whom he claimed, had' been in the quiet, peaceable and uninterrupted and adverse possession of said lands, under color of title, from the time John H. Pickett and William M. Mayo purchased them, on the first day of February, 1842, till the commencement of the suit for them as aforesaid, in 1863, a period over twenty years, during all which time said Mary Jane Taylor had either a guardian or trustee who had the right to sue for said lands.” The recovery of said lands, or any part of them, *was therefore barred by the statute of limitations, and the award was contrary to law and illegal. 3d. The award is void for uncertainty, in that it does “not designate what land, or locate it anywhere, in any State, county or district.” 4th. “The land in controversy, the right and titles to which was submitted to arbitration as aforesaid, was proven before the arbitrators to have been sold by John H. Pickett, administrator of James Pickett, on the 1st of February, 1842, under an order of the Court of Ordinary of Pulaski county, and that William W. Mayo became the purchaser at and for the sum of $1,500 00, and that on the same day he received a deed for said land from said John H. Pickett, and on the same day the said William W. Mayo reconveyed the same land to the said John PI. Pickett at the same price. And from that time the said Pickett and Mayo, and those under whom they claimed, and those claiming under them, held the quiet, peaceable and uninterrupted possession of said land under a claim of title, till the said action of ejectment was commenced for their recovery, in January, 1863, for a period of over twenty years; that the plaintiff sought by their action of ejectment, and before said arbitrators, to set aside the sale of said lands (the said Mary Jane being one of two heirs to the estate of the said James Pickett, deceased,) on the first of February, 1842, on the ground that the said John H. Pickett, as administrator of James Pickett, had fraudulently purchased said lands at his own sale. But the evidence before the arbitrators showed that there was no fraud or unfairness in said sale by the said John H. Pickett, at his own sale as such administrator, or by the said Mayo; and that the said sale was a fair one at the price of $1,500 00, and which the administrator, in his return to the Court of Ordinary, charged himself with the amount of said sale, and that the guardian of the said Mary Jane Taylor, some time before the year 1845, received from the administrator of the said James Pickett, her full share of the I purchase-money for said land, and which he did with a full knowledge of the sale, .the manner of the sale, the seller and the -purchase of it, and the price it brought at said sale the 1st of February, *1842, he being present at the sale; and that soon after the marriage of the said Mary Jane to the said Thomas L,. Taylor, which marriage took place on or about the 26th .day of January, 1855, the guardian of the said Mary Jane Taylor, who had long before then thus received her portion of her said father’s estate—the said James Pickett—including her half' of the said $1,500 00, and settled with and turned her whole estate in his hands over to her, or her husband, or trustee, including her half of the purchase-money for said land, and that the said Mary Jane had a guardian from at least 1842 till she married in 1855, and that from then till now, she never, by herself, guardian or trustee, except by said action of ejectment, attempted to repudiate said sale of said land on the 1st of February, 1842, but acquiesced in it, and by her guardian elected to take her part of the purchase-money for said land, and did, by her guardian, take it; and then, in a settlement with her guardian, after her marriage, by herself, husband or trustee, took and received it from her guardian;” and not only that, but on the first day of May, 1855, soon after her marriage, she and her said husband, the said Thomas L. Taylor, and Jane Taylor, the only other heir to the estate of the said James Pickett, “released and surrendered all right and claim in and to said body of lands, (including the said lands so sold on the 1st of February, 1842, as aforesaid,) to him, the said Mayo;” also «all right of suit or action to set aside the original sale “of said land on the said 1st of February, 1842, or in anywise to disturb or molest said Mayo in the enjoyment or title to said property,” all of which in substance was proved before said arbitrators, thereby further showing her election to take the purchase-money instead of said land, and yet they gave an award in favor of said plaintiff, and which award was, and is, on this account, too grossly unjust and illegal; for the said Mary Jane, by her guardian and trustee, not only made no attempt to repudiate said sale of land, except by said’ action of ejectment, and acquiesced in it for over twenty years, by which she was bound, but they elected to take and did take and receive her part of the purchase-money. *And they giving her the $1,500 00, or substituting it, making it pay the $1,500 00 as rent for said land, does not cure, or remedy, or make legal the said award in this respect, or in any way relieve it of its illegality and iñjustice, and the gross mistake of the arbitrators of the law in this respect.”
    “5th. And this deponent further says that on the trial by and before said arbitrators, plaintiff offered to give in evidence a deed made by J. C. Polhill to M. C. Polhill, dated 1st February, 1866, after t-he commencement of said action of ejectment, and after its submission to arbitration, conveying to Thomas L. Taylor, trustee for said Mary Jane Taylor, etc., the said parcel of land which the said Mayo so purchased from said John Pickett, and is now held by William M. Anderson, administrator of William W. Mayo, deceased; that is to say, one-half interest in the same, by said Mrs. Taylor giving up her half interest in the part so sold to Mrs. Jane Pickett, referring to the said land so sold 1st of February, 1842, to the introduction of said deed as evidence before said arbitrators, the counsel for this defendant objected on the ground that it was a title, if a title at all, acquired by the plaintiff, not only after the commencement of said action of ejectment, but after the submission of it to arbitrators; which objection was overruled by his arbitrators and the said deed read as evidence, and which ruling of said arbitrators this deponent is advised and believes was and is illegal.”
    
      These objections were demurred to ore tenus, and the demurrer was sustained, and the award was made the judgment of the Court. Plaintiff in error says said objections were sufficient in law as stated.
    [‘Note.—A motion was made by counsel on both sides to put this cause to the heel of the Chattahoochee Circuit. The Court refused to do that, but allowed it by consent, to go to the heel of the entire docket of the term.]
    Eli Warren, Eanier & Anderson, for plaintiff in error.
    *A. T. Burke; S. Hall, (by Lochrane & Clarke,) for defendant.
    
      
       ARB ITR ATI O N AND AWARD—EXCEPTIONS TO AWARD. —See Barnesville Mfg. Co. v. Caldwell, 48 Ga. 421, citing the principal case. See also, foot-note to Sharp v. Loyless, 39 Ga. 7.
    
    
      
      SAME—SETTING ASIDE—NECESSARY ALLEGATIONS.— In order to warrant the setting aside of an award, the exceptions must contain distinct allegations of fraud, accident or mistake in a legal sense made or proven as set out in the bill of exceptions, and the error assigned thereon. Hardin v. Almand, 64 Ga. 594, citing Cobbs v. Morris, 40 Ga. 674; Anderson v. Taylor, 41 Ga. 10; Tomlinson v. 
        Hardwick, 41 Ga. 548; Shaifer v. Baker, 38 Ga. 137; Brand v. Sorrelle, 61 Ga. 162; Virginia Home Ins. Co. v. Gray, 61 Ga. 515.
    
    
      
      SAME—EVIDENCE—CONFLICTING—SUFFICIENT TO SUSTAIN AWARD.—To the proposition that where the evidence before the arbitrators was conflicting and there is nothing on the face of the award going to show that it was the result of accident or mistake, and it does not appear that the award was the result of the fraud of any one or of all the arbitrators or parties, or that it is otherwise illegal, the award will be sustained, the principal case is cited in Forbes v. Turner, 54 Ga. 252; Black v. Harper, 63 Ga. 754; Lester v. Callaway, 73 Ga. 732; Arnold v. Georgia Railroad, etc., Co., 50 Ga. 304, citing Lester v. Georgia Railroad, etc., Co., 42 Ga. 244.
    
    
      
      SAME—SAME—ERROR OF JUDGMENT.—“That neither error of judgment on the part of the arbitrators will justify a court of equity in setting aside an award, nor a mistake of law or fact, unless gross or palpable, is settled in the case of Anderson v. Taylor, 41 Ga. 10.” Overby v. Thrasher, 47 Ga. 10. See also, citing the principle case to the same effect, Lester v. Callaway, 73 Ga. 732; Forbes v. Turner, 54 Ga. 252; Bates v. British American Assur. Co., 106 Ga. 253, 28 S. E. Rep. 155.
      SAME—SAME—ERRONEOUS DECISION ON A POINT OF LAW.—To the proposition that where questions of law are expressly referred to arbitrators, a mere erroneous decision by them of such questions ordinarily constitutes no cause for setting aside their award. See Benton v. Singleton, 114 Ga. 556, 40 S. E. Rep. 811, citing Crabtree v. Green, 8 Ga. 8; Sasseen v. Weakley, 34 Ga. 560; Anderson v. Taylor, 41 Ga. 10; Overby v. Thrasher, 47 Ga. 10; Thrasher v. Overby, 51 Ga. 91; Forbes v. Turner, 54 Ga. 252; Hardin v. Almand, 64 Ga. 582; Lester v. Callaway, 73 Ga. 730; Bates v. British American Assur. Co., 100 Ga. 249, 28 S. E. Rep. 155; Osborn v. Blanton, 109 Ga. 196, 34 S. E. Rep. 306.
      SAME—SAME—ERROR OF JUDGMENT—WHERE ARBITRATORS ACTED HONORABLY AND FAIRLY.—:“If the arbitrators acted honorably and fairly and there was any evidence to sustain the award, it should be upheld.” Osborn v. Blanton, 109 Ga. 197, 34 S. E. Rep. 306, citing the principal case and Tomlinson v. Hardwick, 41 Ga. 547; Akridge v. Patillo, 44 Ga. 585, 587; Overby v. Thrasher, 47 Ga. 10; Forbes v. Turner, 54 Ga. 252; Black v. Harper, 63 Ga. 752; Hardin v. Almand, 64 Ga. 582; Lester v. Callaway, 73 Ga. 731.
    
   By the Court—

BROWN, C. J.,

delivering the opinion.

.1. We are satisfied the failure of the arbitrators to furnish the party who objects to the award with a copy, as directed by Section 4183 of the Revised Code, is not sufficient cause for setting it aside. This provision of the statute is directory and should be complied with. But if the party has notice of the award, and appears at the first term of the Court, and files his objections, and does not show that he is taken by surprise, or that he has lost any right on account of the failure, we see no reason why that' should vitiate the award. If he had failed to file his objections at the first term, because he did not in fact have notice of the existence of the ward, or if he had obtained the notice during the term, and at so late a period, that he could not make out his objections, we do not say that the Court should have refused to allow him further time to make his objections.

2. An award, that the plaintiff: in ejectment do recover the portion of land named, possessed by Mayo at his death, except the ten acres of land deeded to Henry Anderson, the land so awarded amounting to three hundred and ninety-five acres, when the amount claimed in the action of ejectment is four hundred and five acres, is not void for uncertainty. We think the maxim, id certum est quod certum reddi potest, applies. Suit was brought against Mayo for four hundred and five acres of land, described in the declaration; and it seems he died in possession, pending the action. The case was referred to arbitration, and the award was for plaintiff for the land named, possessed by Mayo at the ■time of his death, except the ten acres deeded to Anderson, adding the amount of land so awarded.

It would seem that the sheriff could have no difficulty in locating the land by this description. It is said, however, it *does not appear where the ten acres deeded to Anderson is located. It is presumed the deed to him from Mayo is of record, and that the sheriff could inform himself by reference to it. Many actions of ejectment are brought in that section of the State where head-rights grants exist, upon a more imperfect description of the premises, and there is no difficulty in executing the process of the Court. But the authorities go farther. In 1 Washington’s Chancery Court Reports, 448, it is said: If certainty can be obtained, by reference to something dehors the award, the party may, by an averment, cure an objection otherwise fatal.

3. But the main question in this case is still to be noticed. Were the objections filed to this award on the ground that the jury found contrary to law, and contrary to evidence, good? We think not. It is contended that the evidence as set forth in the qbjections was admitted, by the demurrer, ore tenus, to be correct, and that it showed, conclusively, that the award was wrong. If the demurrer had been reduced to writing, it admitted only such facts as were well pleaded. And we hold that the objection to the award on this ground was not well pleaded. The language used must be taken most. strongly against the pleader. He does not pretend to say in this case that he has set forth all the evidence which was heard by the arbitrators. He only states that certain facts appear by the evidence. As he attacked the award, because the evidence did not sustain it, and as he undertook to set forth the evidence, he should have distinctly averred that he had incorporated it correctly as given in by both sides. From the statements made by the pleader, we are well satisfied that all the evidence heard by the arbitrators is not in this record.

It appears that the defendant had been in possession more than the statutory period; but it does not appear from the statement made by his counsel in his pleadings, which it is said in argument, should appear, that there was also evidence before the arbitrators, of minority, fraud and coverture, to rebut the proof under the plea of the statute of limitations.

But suppose the evidence had been fairly and fully set forth, as it was given in on the hearing before t!he arbitrators, *could the Court then have set aside this award? At most it would make a case where the arbitrators committed error in deciding upon the law, and found against the weight of evidence. And we are satisfied the current of authorities is against interference by the Court, with the award, even in a case where it is admitted that these errors were committed by the arbitrators. In Burchill v. Marsh et al., decided by the Supreme Court of the United States, 17 Howard’s Reports, page 344, it is said: “The charges of fraud and corruption made in the bill, are denied in the answer, and' the award is not so outrageous as of itself to constitute conclusive evidence of fraud or corruption. Error of judgment in the arbitrators is not a sufficient ground for setting aside an award.” Mr. Tustice Greer, delivering the opinion of the Court, says: “The general principles upon which Courts of Equity interfere, to set aside awards, are too well settled by numerous decisions, to admit of doubt. Arbitrators are judges chosen by the parties, to decide the matters submitted to them finally, and without appeal. As a mode of settling disputes it should receive every encouragement from Courts of Equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a Court of Equity will not set it aside for error, either in law or fact. A contrary course would be a substitution of the judgment of the Chancellor, in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation. In order, says Lord Thurlow, (Knox v. Symmons, 1 Vesey, Junior, 369,) to induce the Court to interfere, there must be something more than an error of judgment, such as corruption in the arbitrator, or gross mistake, either apparent on the face of the award, or to be made out by the evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened, he would have made a different award. Courts should be careful to avoid a wrong use of the word 'mistake,’ and by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over *awards. The same result would follow if the Court should treat the arbitrators as guilty of corrupt partiality, merely because their award is not such an one as the Chancellor would have given.” On page 351, Justice Grier adds: “The admission of witnesses to prove their estimate of damages, (even if it had been in the face of the objection of counsel, and not by consent) may have been error in judgment, but it is no cause for setting aside the award; nor can the admission of illegal evidence, or taking the opinion of third persons, be alleged as a misbehavior in the arbitrators, which will affect the award. If they have given their honest, incorrupt judgment on the subject-matters submitted to them, after a full and fair hearing of the parties, they are bound by it, and a Court of Chancery has no right to annul their award because it thinks it could have made a better. In Underhill v. Van Cortlandt et al., Johns’ Chancery Reports, 339, Chancellor Kent has reviewed the authorities, and discussed this question with great ability. The substance of his decision is contained in the following head note:

“If there is no corruption or partiality in arbitrators, nor anv misconduct during the hearing, nor any fraud practiced by either party, the award is binding and conclusive, and can not be set aside by the Court, however unreasonable or unjust the award may appear.”

In the discussion of the question, the Chancellor says: “Admitting that there was no corruption or partiality in the arbitrators, (and none is pretended,) and admitting that there was no misconduct in them during the course of the hearing, nor of fraud in the opposite party, (and none is established by proof,) then I say, the Court can not inquire into the charge of an over or under valuation, or of the reasonableness or unreasonableness of the award; but it is binding and conclusive. If every award must be made conformable to what would have been the judgment of this Court in the. case, it would render arbitrations useless and vexatious, and á source of great litigation; for it rarely happens that both parties are satisfied. The decision by arbitration, is the decision of a tribunal of the parties’ own choice and election. *It is a popular, cheap, convenient and domestic mode of trial which the Courts have always regarded with liberal indulgence; they have never exacted from these unlettered tribunals, this rusticum forum, the observance of technical rules and formality. They have only looked to see if the proceedings were honestly and fairly conducted, and if that appeared to be the case, they have uniformly and universally refused to interfere with the judgment of the arbitrators.”

Again, on page 365, the Chancellor adds: “In finishing this review of the most material Chancery decisions on awards, I think we may safely conclude, that the law is as well settled on this, as on any other subject whatever. The conclusiveness of the judgment of arbitrators has received the uniform sanction of the Court for a series of ages. The rule is not now to be shaken, nor disturbed; it is founded on so much reason and public convenience, as not to be confined merely to the Court of Chancery, but to have met with the general approbation of mankind.”

The Courts of law have always been averse to grant any relief in those cases, and the injured party was obliged to resort to equity. In an action at law on the award, even the corruption or misconduct of the arbitrator is no defence, (2 Wils., 148; 3 John’s Reports, 367; 8 East, 344,) and when submission to arbitration had been made a rule of the Court of -King’s Bench, and the arbitrators were charged with mismanagement, in refusing to hear one party, Lord ITolt made it a question whether the integrity of the arbitrators could be arrayed. (Morris v. Reynolds, 2 Lord Raymond, 857.) In this he was properly overruled, but it appears to be settled that a Court of law will not, even when the submission is made a rule of Court, enter into the merits of an award, but will look only to legal objections on the face of it, or such as go to the misbehavior of the arbitrators.

In Kleine v. Catara, 2 Gallison’s Reports, 60, Mr. Justice Story lays down the rule as to the conclusiveness of the award quite as strongly. The head note says: “If they (the arbitrators) make a general award, it can not be impeached *collaterally or by evidence aliunde for mistake of law or of fact, for the judgment of the referees is conclusive in both respects, unless there be fraud or misbehavior.” And on page 69, Judge Story remarks: “Under a general submission, therefore, the arbitrators have • rightfully a power to decide on the law and the fact; and an error in either respect ought not to be the subject of complaint by either party, for it is their own choice, to be concluded by the judgment of the arbitrators. Besides, under such a general submission, the reasonable rule seems to be that the referees are not bound to award upon the mere dry principles of law, applicable to the case before them. They may decide upon principles of equity, and good conscience, and may make their award ex aequo et bono.”

Upon these authorities and numerous others that might be cited, we hold that the arbitrators are the judges of the law and the facts in the case submitted to them; and that the award is final and conclusive between the parties, unless attacked in the manner pointed out by the statute, for fraud, -accident, mistake, or illegality, and that the Court in hearing the objections will not enter into the merits of the award.

By mistake, we do not understand that the statute means a mere error in the judgment of the arbitrators. Nor do we understand by illegality, that an award may be set aside because the arbitrators erred in deciding a question of law which arose in the case. If they have been guilty of partiality or corruption, or have referred any matter to chance or lot, or have made a palpable mistake of law, as for instance, if they hold that the -oldest son is the sole heir, to the exclusion of the younger children, or make other like gross and palpable mistake, it will vitiate the award. But the mistake must be gross and palpable, and of a character which controlled their decision, or the award will not, on that account, be set aside.

The chief.ground of complaint in this case seems to be, that the award was contrary -to the evidence. Admitting the sufficiency of this objection, as a legal ground for attacking an award, it would be impossible for us to decide that ^question, as we are satisfied the whole evidence given in before the arbitrators is not before the Court. But the case will have to be a very strong one, indeed, which will authorize a Court to set aside the award on 'the ground of illegality. As already stated, arbitrations are favored by the Courts, and all the authorities show that an award is more conclusive than a verdict of a jury; as the one is rendered by a tribunal chosen by the parties, the other by that which is provided by law. Now it has been ruled again and again, by this Court, that the verdict of a jury will not be set aside, on the ground that it is contrary to the evidence, unless it is strongly and decidedly against the weight of the evidence; and even then, the Court may exercise a sound discretion in granting or refusing a new trial. We hold that the Court cannot set aside an award for illegality, on this ground, where there is any evidence to sustain it. To authorize the interference of the Court, the award must be so palpably contrary to evidence as to justify the conclusive presumption that there was fraud, partiality, corruption, or gross mistake in its rendition.

As no legal ground of objection was filed against this award, we think the Court below committed no error in overruling the objections made, and permitting it to stand as the final judgment between those parties.

Judgment affirmed. 
      
      For meaning of “By the Court,” see note, 40th Georgia Reports, 670.
     