This case came before the court belo-w on exceptions filed to an award of arbitrators under the provision of the 4243d section of the Code. On the hearing of the exceptions and a demurrer thereto, the court rendered the following judgment: “An award having been made in this case and exceptions filed thereto, and counsel for defendant haviug filed his demurrer to said exceptions, it is ordered that the demurrer be sustained to all the exceptions except the fourth, to-wit: newly discovered evidence as supported by the affidavit of E. G. Roane, and that the case be sent back to said referees for a new trial, the same to be had anew, and that both parties have at least ten days’ notice of the time and place of hearing, with leave to- hear any competent evidence on the whole case.” To-which judgment both parties excepted.
1. 2. There was no error in sustaining the demurrer to all the exceptions to the award except the fourth, as to the newly discovered evidence. One of the main questions-contained in the submission for the decision of the arbitrators was whether Black had sold to Harper a tract of land containing 240 acres, or whether he had sold him a tract of land containing 200 acres. Upon that question 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, nor does it appear that the award was the result of the fraud of any one, or of all the arbitrators, or parties (except as to the sworn testimony of Harper before the arbitrators, which is alleged to have been false and fraudulent), or that it is *755otherwise illegal. See Code §4243, and the cases cited in the note to that section, especially the case of Anderson vs. Taylor, 41 Ga., 10.
3. In onr judgment the court erred in sustaining the fourth exception on the ground of newly discovered evidence, and in ordering the case sent back for a new trial before the arbitrators. There is nothing in the section of the Code before cited which authorizes any such proceeding. If the court overrules the exceptions to the award, then it should make the award the judgment of the court, but if it sustains any of tire exceptions to the award, involving matters of fact, then the court should cause an issue to be made up thereon, which issue shall be tried by a special jury, etc. The action of the court is to be confined to the award as made, either to confirm it, or to' vacate and set it aside, but not to having a new award made by ordering a new trial in the case. We therefore reverse that part of the judgment of the court sustaining the fourth exception on the ground of newly discovered evidence and ordering a new trial, and direct that the award be made the judgment of the court.
Let the judgment of the court below be reversed, with directions as hereinbefore indicated.