1. When a submission and an award, and the evidence on which' the award was made, are before a court, it is simply a question of law whether the award is or is not legal. But if there be a dispute as to what was the proof, it is obviously a question of fact to determine which is right. We think, therefore, the judge, in this case, should have left it to the jury to determine what was the truth as to this dispute of fact, provided that, in the judgment of the judge, it was material. When the case was before the jury the duty of the jury was to inquire, was the evidence before the arbitrators or not? If so, ought the award to stand or not ? If not, what, according* to the evidence, is the true right of the parties ?

2. So far as we have been able to get- at the truth of this *93case, from the record, we are clear there has been some mistake in this award. Mr. Foster and Judge Reese both say the Winship memoranda were used as evidence. Judge Reese says, as the basis of a general account, and Mr. Foster says the amount received from Winship did not appear in the defendant’s returns. Now, if this be so, it is plain that this whole amount received from Winship was charged twice against the defendant, for it is very apparent that he did return to the ordinary the several sums he got from Winship. He returned each ward’s share, in his return for that ward, which was proper, whilst the Winship memoranda has it together. It is strange that men generally so accurate and observant as these intelligent lawyers, should have made so gross a mistake, but unless the record is grossly deficient or false, as we have it, it seems to us incontestible that this mistake must have taken place. If no allowance at all is made to the guardian for any of his investments, the amount found (if this double charge is left out) is too large. The most of the money was Confederate currency, and he has paid the wards considerable sums, since the war, in Federal currency. Whilst we would carefully watch to prevent guardians from wasting the estates of the wards, and hold them to a strict account, y.et we must always keep right and justice in our mind.

As this record presents this case we think, if this evidence was before the arbitrators and they acted upon it, they have made a mistake. They have charged Thrasher twice with the amount received from Winship.

Judgment reversed.