Jones vs. Payne et al. favor of Jones for a balance against the estate. They averred that they expressly revoked the consent for Thomas Jones to audit the accounts, and that, if he did so, it was after that revocation, ex parte, and without authority. And by lengthy review of Jones' returns as executor, and his management of said estate, they undertook to demonstrate that he was largely indebted to said estate, specifying how and wherefore. They averred that at the time when said award was entered upon the minutes, they filed their objections thereto, (after said other proceedings,) and that these and the rule against Jones last stated were still pending. Because this litigation could result in nothing but the vacating of said judgment, and because it was right to settle all the matters finally, in one case, they prayed that Jones be enjoined from enforcing said judgment, that it be annulled, that the proceedings be quashed, and that Jones account to all of them for his mismanagement of said estate, etc. Judge Clark, who succeeded Judge Vason, granted the injunction as prayed for. Jones' counsel moved (at Chambers, by consent,) to dissolve the injunction and dismiss the bill, because, Jones living in Terrell, these matters were not within the jurisdiction of Lee Superior Court, because if the bill for account and settlement, aforesaid, was still pending in Terrell county, that could and would settle the matters; because all the matters in this bill were concluded by said submission and proceedings thereunder, and were res adjudicata; because an award could not be set aside by a Court of Equity, but at law, and there only all these objections to the award could be legally disposed of; because the parties had contracted to use only a writ of error to the Supreme Court to correct any error of Judge Vason, and because John A. Payne did not offer to put Jones in statu quo ante bellum. The Chancellor refused to dismiss the bill or dissolve the injunction, and that is assigned as error, on said grounds. VASON & DAVIS. WOOTEN & HAWKINS, by LOCHRANE & CLARK, for plaintiff in error. LYON, DEGRAFFENREID & IRVIN, for defendants. Jones vs. Payne et al. [NOTE. For the motion to dismiss this writ of error, see the next case post.] MCCAY, J. 1. An infant cannot bind himself, by a submission of his rights to arbitration: Billing on Awards, 34. Nor can he appoint an agent or attorney to do it: 1 American Leading Cases, 250. The submission is the foundation of an arbitration, a defect in that, a want of capacity in the signer of it to bind himself, cannot be cured by the arbitrators appointing a guardian ad litem. As to the infant, the arbitrators have never been legally chosen, and if they have no power to act, they have none to appoint a prochien ami. Nor do we think this difficulty is cured by the appointment of a guardian by the Chancellor. Had there been a suit pending to which the infants were parties, and were this submission made under the order of the Court, perhaps the Chancellor might have cured a defect in this way. But there is nothing in this record to show any jurisdiction of the Chancellor over these minors. There was no suit pending in Lee county to give him jurisdiction. It does not even appear from the record that they resided in the Southwestern Circuit, and even if they did, we doubt if a guardian ad litem, appointed after the submission, could cure the radical defect, that the submission was not agreed to by one duly authorized to submit the dispute. 2. The agreement made at Albany disposed of the submission, except as to the single question left to Judge Vason. And though we do not say that the subsequent parol agreement, to take the decision of Mr. Jones, as to the amount the books of the Ordinary showed to be due, would not, if his decision was not a mistake or fraud, bind the adult parties, yet we are clear this was not a statutory award. The law, Section 4167 of the Code, requires a statutory submission to be in writing. Nor can it, with any propriety, be tacked on, as an addendum to the order of Judge Vason, accepting the resignation of the trustee and appointing another. Jones vs. Payne et al. 3. But these objections to this so-called award, can be made under the motion pending in Lee Superior Court. Even if the paper were a regular statutory award, the party has the whole term at which it was returned to file his objections, or at least until it is too late to take issue on them: Code, Sections 4183 and 4184. We see, therefore, no necessity for the interference of equity. The remedy at law is complete. 4. It has been argued, however, that, inasmuch as at law nothing can be attained but a setting aside of the award, a Court of Equity will take hold of the matter, not only to do this but to make a full decree, settling the rights of the parties. Such a doctrine would set aside the whole policy and effect of the arbitration law. This ground for equitable interference exists in every arbitration under the statute. The Code authorizes an award to be objected to for mistake, fraud or illegality, and it provides a specific mode for determining the issues which may arise, and the verdict, in no event, can be other than one maintaining or setting aside the award, leaving the original dispute unsettled. Any one dissatisfied with an award, might, on the principle contended for, always get clear of the statutory provisions, since in all cases the remedy at law leaves the dispute unsettled. This would fritter away the whole system, and make every arbitration the mere commencement of a suit in equity. Were there any special circumstances requiring equity to interfere to set aside the award, that Court, having acquired jurisdiction, would doubtless go on to settle the whole dispute. But no such circumstances exist in this case, and we see no reason for the interference of a Court of Equity to do that which can be done just as well by the mode pointed out by the statute. 5. Nor is there such a jurisdiction given to Lee county by the submission, as gives jurisdiction in that county to a bill to set aside the award of Mr. Jones. His decision is not under the submission, and though equity may have, under a proper case made, jurisdiction to set it aside and reinvestigate the matter, yet the mere claim of the executor that it is a statutory award, does not transfer the jurisdiction of the Jones vs. Payne. original dispute from Terrell the residence of Jones, to Lee. It is not necessary, to defend the proceeding in Lee, to go over and decide the original matter in dispute. The question in Lee is simply award or no award. Judgment reversed. JOHN JONES, plaintiff in error, vs. JOHN A. Payne, defendant in error. 1. A failure of the Clerk below to certify the record within ten days from the filing of the bill of exceptions in his office, is no ground for dismissing the cause in the Superior Court; Provided, counsel for plaintiff in error exercised ordinary diligence to have the Clerk below certify it in time. (R.) 2. What amounts to ordinary diligence depends upon the circumstances of the case. Counsel should apply for mandamus against the Clerk, unless the circumstances render it impracticable or unnecessary to do so. (R.) 3 Under the Constitution a cause must be disposed of at or before the second term. Providential cause is not good for postponement except at the first term. (R.) Practice. Motion to dismiss Bill of Exceptions. Term. Lee county. On the 29th of September, 1869, the Judge certified the bill of exceptions in said cause, and ordered the Clerk of said county to send up the record, etc., "to the next term of the Supreme Court." It was filed in said Clerk's office on the 6th of October, 1869. On the 19th of October, the record was certified. It did not reach the office of the Clerk of the Supreme Court till the 2d of December, 1869. December term, 1869, began on the 6th of December, and the return day for that term was twenty days before the last mentioned date. At said term of the Supreme Court, counsel for plaintiff in error moved to have it entered upon the docket as of that term, and to dismiss it because the Clerk of Lee Superior Court had not certified the record within ten days from the Jones vs. Payne. filing of the same in his office, and upon other grounds. As they were not in writing, they are omitted here. Counsel for plaintiff in error produced the record and made affidavit that, owing to its great length and the smallness of the county site of Lee, they could not procure sufficient help to have it done within ten days, though they urged the necessity of it upon the Clerk, and assisted him in trying to get it done in that time. The motion was overruled, and the cause was ordered to be entered upon the docket of the next term. For other facts see the opinion. VASON & DAVIS, WOOTTEN & HAWKINS, for plaintiff in error. LYON, DEGRAFFENRIED & IRVIN, for defendant. By the Court-BROWN, C. J., delivering the opinion. A motion to docket and dismiss this case, was made by Judge Lyon, at the last term of this Court, on the ground among others, that the Clerk of the Superior Court of Lee county had failed to make out and certify the transcript of the record within ten days after the bill of exceptions was filed in his office, as required by the statute. The motion was overruled, and the case which reached the office of the Clerk of this Court, too late for last term, was ordered to be placed on the docket for this term. It was reached in its order and argued. But before we had pronounced any judgment, the case of Seay vs. Treadwell, in which Judge Lyon was of counsel for plaintiff in error, was also reached in its order, and dismissed, on motion, on two grounds: 1st, that all the evidence in said case on the trial in the Court below, was not embraced in the bill of exceptions, as required by the rules of this Court; and 2d, on the ground that the Clerk of the Superior Court did not make out and certify the transcript of the record, for more than two months after the expiration of the ten days; and no sufficient excuse was shown for the delay, and no diligence was shown, on the part |