
    Bright v. Ford.
    Arbitration. Mistake of fact and law in agreeing to. Ohaneery jurisdiction. Administrator agreed to reference to arbitration under the mistaken belief that his intestate had been served with process. Chancery has jurisdiction in su.ch ease to set aside the award for the mistake of fact shown, and also for the mistaken assumption of law that an administrator could agree so. to onerate his intestate’s estate.
    PROM GREENE.
    Appeal from Chancery Court at Greeneville, May Term, 1870. H. C. Smith, Ch.
    McKee, for complainant, said:
    In this case the bill was filed to enjoin proceedings under an award, made by arbitrators under an agreement by the parties.
    Ford brought suit against Lydia Stonecipher and others for damages for alleged trespasses. Lydia died before process was served on her, and the complainant administered on her estate; and, believing that she had been served with process, and that the cause had been revived, he was liable to a revivor of the cause against himself as administrator, etc., he entered into a written agreement with the respondent in this cause to submit the matters involved -in the suit to arbitration, The arbitrators awarded $- to the respondent. The award, it appears, was to be made the judgment of the court, and this bill was filed to enjoin Ford from having the award so affirmed. The bill alleges that fraud was practiced on complainant in the conduct of the arbitration, in this, that he was without an attorney in attendance, Ford having one, and he was unwilling to proceed with the arbitration for this reason, when Ford agreed that he would not avail himself of the assistance of his (Ford’s) attorney, and the parties would conduct the arbitration themselves; and that, in disregard of this agreement, Ford’s attorney did serve him before the arbitrators, complainant having none.
    But the ground relied on by complainant was, and is, that he agreed to said submission because of his belief that the decedent Stonecipher was in court by service of process, and the cause in condition to be proceeded with. Considerable testimony was taken, which it is conceived does not bear upon any issue under this bill. The respondent having answered, denying and calling for proof of the allegations of the bill, the Chancellor, on the hearing, dismissed the bill, but affirmed the award, and pronounced decree for the amount of it in favor of the respondent. This last, it is insisted, was manifestly erroneous, there being no oross bill, and the only relief which respondent could have been entitled to on his answer was a dissolution of the injunction and his costs.
    But it is also insisted for the complainant that the submission to 'arbitration was made by the complainant under such a mistake in regard to the . service of process on his decedent in the action of trespass, and revivor against himself, as entitles him to relief on that ground, without regard to the question of fraud in the arbitration itself. The answer calls for proof of this, and so far as it is possible from the nature of the allegation — it being of a negative character, that is, that he was not advised or informed — to establish its truth, this is done by the transcript of the record of the cause for trespass, which shows that complainant’s intestate had not been summoned nor her death suggested.
    In support of the proposition just offered as to mistake being sufficient to impeach an award, see Daniel’s Chancery Plead, and Prac., vol. 1,. p. 695, and as to ground of chancery jurisdiction generally in cases of mistake, see 1 Story’s Eq. Jur., sec. 140.
    BartoN, for defendant.
   NICHOLSON, C. J.,

delivered the opinion of the court.

William Ford brought an action of trespass, in the Circuit Court of Greene county, against Absalom Stonecipher and his wife Lydia, and others, claiming $10,000 as damages for taking and carrying away property, and other wrongs. Before any summons was served on Lydia Stonecipher, she died.

Michael C. Bright administered on her estate, and entered into an agreement with Ford to submit the cause to arbitration, and that the award be made the judgment of the court. The arbitrators awarded $750 against Bright as administrator of Lydia Stonecipher. Before the award was returned to court, Bright filed his bill to enjoin the arbitrators from returning the award, alleging that it was procured by the fraudulent conduct of Ford, and that he had entered into the agreement for arbitration under the mistaken belief that the summons had been served on his intestate and that he was a party to the suit by revivor. An injunction was granted, and bond executed by Bright. Ford answered, denying the alleged fraud in procuring the award, but neither admitting nor denying the alleged mistake as to complainant’s believing himself to have been made a party. The allegation of fraud was not sustained by proof, but the fact was that the summons had not been served on Lydia Stonecipher and that the suit had not been revived against Bright as her administrator.

The Chancellor dismissed the bill, dissolved the injunction, and gave judgment against Bright and his security on the injunction bond for the amount of the award. From this decree Bright has appealed.

It is fully shown by the evidence that at the time of Lydia Stonecipher’s death the summons had not been served on her, and that there had not been a revivor of the suit against her administrator when the agreement to arbitrate was made. Upon looking to this agreement, we think it sufficiently appears that the administrator entered into it under the assumption that he was a party to the suit in his representative character. He thereby undertook to bind the estate of his intestate under a clear mistake, both as to the fact of his being a party and of the law as to his right to enter into such obligation on behalf of the estate of his intestate. It appears, also, by reference to the award, that the arbitrators acted under the same mistake, both as to the fact and law, and that they carried the mistake into their award by giving judgment against Bright as administrator of Lydia Slonecipher for $750.

It is well settled that a court of chancery has jurisdiction to set aside an award for mistake of fact and for mistake of law: Conger v. James, 2 Swan, 213; Nance v. Thompson, 1 Sneed, 321; State v. Ward & Briggs, (MS.) at Nashville.

We are therefore of opinion that the Chancellor erred in dismissing the bill. The decree is reversed and the injunction made perpetual, with costs.  