This case was a bill in equity filed by the administrator of Mrs. Evans against Louisa C. Sheldon and others, to compel the renewal of leases of lots 51 and 52 in Walton Ward, Savannah, and to settle the account overdue on preceding leases of said lots, and fix that which should be paid annually on their renewal.
■ On the trial of the cause, pending argument before the jury, it appeared that complainant had proved no demand on defendants to renew the leases,. Thereupon the court .ruled that the verdict must be for defendants. Whereupon the complainant moved to dismiss his bill, .which-.was not allowed, because the defendants had set up *109in their answer in the nature of a cross-bill certain equities of their own, and the trial was ordered to proceed. On the trial the court submitted to the jury certain questions. First: Is complainant, as administrator of Isabella Evans, entitled to a renewal of the leases upon lots 51 and 52 Walton Ward, under the terms and conditions ’of the leases executed by Hiram Roberts to B. R. Armstrong, on 19th of December, 1850? Secondly: What amount has been paid as ground rent upon such portions of lots 51 and 52 as are occupied by complainant, Evans, since the expiration of the lease in 1871 ? Thirdly : What amount of money is now due for unpaid ground rent upon said two lots from the 19th December, 1871, up to this date? Fourthly: From what date is still due the ground rent now unpaid on said .two lots ? And fifthly: What amount-should be paid by complainant to defendants, that is from the lessee to the owner, for ground rent now due upon these two lots?
Upon the answers to these questions, the court decreed that the leases were not renewable, and that the defendants recover from complainant $468.30 for rent due up to date of decree.
To the rulings of the court on the refusal to permit complainant to dismiss his bill, to the trial of the whole case, and to the propounding to the jury any question except as to arrearages of rent due, the complainant excepted, as also to the degree entered on the verdict, and assigns error here thereon.
1. There can be no doubt of the right of the complainant to dismiss his bill at any stage of the case, provided he did not thereby prejudice any equitable right of defendants. The general right to dismiss in all cases is conferred by the Act of 1843. Code §3447. All cases in any court, provided by this section, would of course embrace equity causes. But they are more particularly and specifically provided for in section 4190. That section provides that “ a complainant may dismiss his bill at any *110time, either in term or vacation, so that he does not thereby prejudice any right of the defendant. If equitable claims by way of set off or otherwise have been set up by, the answer, the dismissal of the bill shall not interfere with defendants rights to a hearing and trial on such claims in that proceeding.”
We think it quite clear that this section means, construing it altogether, the rights of defendant which the complainant cannot prejudice by his dismissal of the bill are mainly those rights which are specified in the last clause of the section, to-wit: equitable claims by way of set off or otherwise, which the defendant has set up in his answer, and so the section has been construed.
In 58 Ga. 355 it was held that even where the complainant prayed for discovery and got it, and it did not suit him, he could dismiss his bill and bring another just like it, if the answer did not set up some ground of relief and pray for it, but was confined to defensive matters only. In that case I dissented, because it was inequitable in my opinion to permit the complainant thus to avoid the force of the discovery he had invoked; but this court went even to that extent. So in 59 Ga. 427, it was held that the dismissal of a bill in equity carries the whole case out of court, including the answer of defendant thereto, if said answer contains no set-off or other prayer for equitable relief in the nature of a cross-bill. The court there say, inasmuch as defendant “set up no set-off or other aggressive equity,” when the bill was dismissed, everything— answer and all — went out with it. So also in 61 Ga. 329, the very point was ruled that the complainant could at any time dismiss his bill, but not so as to carry the cross bill with it.
In accordance' with what seems to us to be the true in. tent and meaning of section 4190 of the Code, and with the ruling of the court thereon, we hold that the complainant had the right to dismiss this bill, provided he did not thereby prejudice the defendant by carrying with *111the bill so much of the answer of defendant as was in the nature of a cross-bill and prayed for affirmative relief against the complainant. On inspecting the answer, we find but one thing in it in the nature of a cross-bill, and that is the claim set up for arrears of rent, and the prayer that complainant be decreed to pay the amount due thereon. So that the bill was out of . court, the equities therein stated and prayed for, the answer to those statements merely defensive, and all issues, except the single question of the amount of arrears of rent due. So much of the answer as bore on that issue, and so much of the evidence in the cause as shed light thereon remained for adjudication, but nothing else.
2. It follows from this that the questions propounded to the jury, other than those which bore on the issue of arrears of rent, were improperly submitted. Especially does this ruling apply to the first question in respect to the right of renewal of the leases to lots 51 and 52, in controversy. The court had determined that the failure of complainant to prove any demand for renewal necessitated a verdict for defendants. This forced complainant to dismiss his bill in order to procure proof of demand, or make it so as to prove it on a new bill; and yet the court submitted to the jury the very issue it had decided, that is, whether the complainant, under the lease and facts proved, was entitled to the.renewal. We think this was error, because the complainant had the right to dis* miss his bill, and thereby the trial of that issue, and because the trial of it was a foregone conclusion, already ruled as a question of law by the court.
3. It follows also, that the decree qf the court on the verdict of the jury, as well as that verdict, are illegal, and must be set aside, because -the case tried, was coram non judice, except upon a single issue, which should have been tried alone. The verdict and decree must, therefore, be set aside, and the case be.remanded for a new .trial. . ..
4. The reversal of the judgment, and the consequent *112re-hearing of the whole case, renders it necessary to consider the questions made in the exceptions pendente lite filed by the defendants in error.
The cause had been referred by the parties to arbitrators, and the award of the arbitrators was returned. Exceptions to the award were filed by the complainant, these were demurred to as insufficient by defendants, the demurrer was overruled, and the award was set aside as illegal, and a motion to make it the judgment of the court was of course denied. .The pendente lite exceptions of defendant are to these rulings of the court.
We do not see error in the rulings complained of. The award seems conditional and uncertain. It appears from it that a portion of the lots has not been in complainant’s possession, and until possession is had there is to be a deduction of the rental. The arbitrators were to settle two points. First, at what rate of ground-rent the leases of 51 and 52, Walton Ward, Savannah, made the 19th December, 1850, by Hiram Roberts to Benjamin Armstrong should have been renewed at their expiration on the 19th of December, 1871. Second, what amount, if any, George P. Evans, administrator of Isabella Evans ought to pay up to the day of the award for ground-rent of said lots upon the rate to be fixed’by the said arbitrators.
The award was that the lease of the whole of lots 51 and 52, Walton Ward, should have been renewed at their expiration, December 13th, 1871, to Mrs. Isabella Evans, the legal assignee of the previous leases at the rate of two hundred dollars per annum ; that George P. Evans, administrator of Isabella Evans, will owe on the 19th of March, 1882, for ground rent of that portion of lots 51 and 52, in his possession and enjoyed by said estate the sum of $1,160.00, as will more fully appear by reference to a statement hereto appended and marked “ Athat until the said George P. Evans, administrator, etc., shall be put into complete and full possession and *113enjoyment of the whole of said lots 51 and 52, an abatement of forty dollars per annum shall be allowed upon the yearly rental herein found, and continue so long as the case continues.
We think that the questions submitted are not definitely settled by the award. The estate of Mrs. Evans, or at least the administrator thereon, it seems, has not been in possession of all of. these lots, and when he will be put in is undetermined. How much the annual rental is to be, is, therefore, undetermined for any year. The complainant may be put in possession in a month or not at all during the renewed leases. Nor is the rental of each lot fixed. The leases are separate. The values are different, as appears elsewhere in the record, and the award could not be decreed upon and enforced without difficulty. The counsel for defendants proposed in open court to adjust this uncertainty, and to accept such rental on each lot as might be agreeable; and they except to this proposition not being enforced over complainant’s objection. The proposition serves to show the uncertainty of an award which had to be amended by agreement. What uncertainty is good reason in law to set the award aside. Code §2888. We see no error in the refusal of the court to force the other side to agree. Nor do we see any in the denial of the motion of the defendant to recommit the submission to the arbitrators. An arbitration begins in agreement of parties ; and certainly if for any cause incapable of execution,, it could not be continued without agreement. To recommit, is to continue it.
Besides, it has been ruled that it cannot be recommitted, but must be finally disposed of under our statute (Code, §1243) by the court. 63 Ga., 752. It is true that this section has reference to arbitration under the Act of 185 5-6,and the case in the 63 Ga., 752 appears to have arisen on an arbitration under that act; but arbitration under order of court between parties litigant is by consent too and rest thereon ; and the reason and spirit of the section and decision *114in the 63d would seem to cover all arbitrations. Certainly the court was not compelled bylaw to recommit the matters in dispute to the arbitrators; and except by a renewal of the original consent, should not have done so. No evidence need be set forth with the exceptions where questions of pure law on the face of the award are considered and the award set aside on them. 47 Ga., 10.
In view of the whole case, we think that the ends of justice demand a trial de novo. If the defendant desires to try the case made in his answer on the arrears of rent, he has the right to do so, notwithstanding the dismissal of the bill and thereby the discontinuánce of the main issues., If not, he may abide the bringing of the new case by complainant, and let one trial settle all.
Judgment reversed.