By the Court.

delivering the opinion.

The arbitrators, through mistake or ignorance, of law or fact, failed to state in the award, that King “ was to use the mill-dam and water, as it was at the time” of the making of the award. The matter thus omitted, was of the fupt importance, to King.

Ought the award to stand in the face of such an omission, thus made by mistake or ignorance of law or fact ? I think not.

I think, that if there is a mistake of law or fact in an award, the award is subject to be set aside, either at law or in equity. This opinion has the support, as it appears to me, of the cases that had been decided in England, at the time when the *267a w of England was adopted by Georgia. Comeforth vs. Geer, 2 Vern. 705; Anon. 3 Atk. 644; Ridout vs. Pain, 3 Atk. 486; Richardson vs. Nourse, 3 B. and Ald. 237; 3 Burr, 1258-’9. 1 Ves. Jr. 369; Anderson vs. Darcy, 18. Ves. 447.

There are decisions of a modern date in England, to the effect, that if an award is good on its face, it is not to be impeached on the ground of mere mistake. See the cases stated in Russell on Arbitrators 300. One of the very last cases, however, is directly to the contrary of these. It was made in In re, Hall & Hinds,2 Mann. and Gr. 846.

I prefer to follow the earlier cases.

For this omission then, the award ought, in my opinion to be set aside ; unless Armstrong will agree that the matter omitted, shall make a part of the award.

There are mistakes against King in the account, to the amount of about $100;' but there is also a mistake against Armstrong, to the amount of $100. These opposite mistakes correct each other. So there is nothing in these mistakes to affect the award.

Judgment reversed, conditionally.

concurring.

I concur in the judgment of the Court in this case.

It is clear from the bill and answer that the question, as to the backing of the water, caused by the mill pond, was included in the submission made to the arbitrators. It was one, of the “ matters in difference” between the parties; and of course embraced in the reference.

From the answer of King which is not contradicted, it appears that he assisted Armstrong, in extinguishing the title to this lot; the arbitrators swear that this matter was embraced in the award, and so intended to be by them, and that unless the privilege of keeping up the pond, at the height *268which it then was, be awarded to King that the improvments made by Armstrong, on the premises and property, will be comparatively valueless. The arbitrators have allowed him full value for these improvements. In affirming the judgment of the Court then, making the award of the arbitrators the judgment of the Court, it is indispensable as an act of justice to King, and for the purpose of quieting further litigation, to accompany our judgment with the declaration, that it is understood upon the payment of the award, the right is guaranteed to King, of keeping up the pond at the height at which it stood when the award was made, without molestation of Armstrong, or those who hereafter acquire title under him.

It is conceded that should Armstrong attempt to interfere hereafter, that a Court of Equity would interpose by injunction and restrain him upon the case made in the record: why this doubt, delay and expense? Equity! Equity! Equity! Drive a citizen to resort to equity to do that, which a Court of law can just as effectually do now! Such absurdity cannot long withstand the battle axe of reform and the reign of reason and common sense, ushered in with the present century, but which until within the last twenty-five years, made but little advance in overturning the superstitious devotion to precedent and antiquity, which have so long retarded the pro-" gress of legal science.