No. 62.

#### James S. Bradwell, Ordinary of the County of Liberty, plaintiff in error, vs. Mary Spencer, administratrix of William Spencer, deceased, defendant.

[1.] A judgment which is rendered by a.Court having jurisdiction of the cause and the parties, binds the parties until set aside, notwithstanding the existence of irregularities in the proceedings previous to the judgment, provided those irregularities are such as may be waived by parties.

[2.] A judgment against the principal is *prima*facie, but not .conclusive evidence against the surety.

Debt, in Liberty Superior Court. Tried before Judge Fleming, April Term, 1854.

*579This was an action,on a guardian’s, bond, brought against the administratrix of William Spencer,, the' security on the bond, for a *devastavit*of Samuel Spencer, the guardian.

On the trial the plaintiff offered in evidence a decree of the Superior Court of Liberty county, rendered on the 5th day of December,,1848, upon a bill filed by Monroe Mclver, by his guardian, Henry M. Stevens, complainant, against Samuel Spencer, defendant, who was the guardian of said Monroe Mclver, charging the said Samuel Spencer with waste and *devastavit*of the estate and effects of the said Monroe Mclver, his said ward. Upon which bill a rule of Court was taken, referring the said case to arbitration, and directing that the said award of the said arbitration should be entered up as the judgment and'decree of the Court; which evidence was offered to prove the *devastavit*and indebtedness of the said Samuel Spencer, guardian to his said ward, Monroe Mclver; to the admission of which testimony the defendant objected and insisted that the. same ought not to be admitted. A certified copy of the bond of said Samuel Spencer, as guardian, and of the said decree, the original bill, rule of referen celo arbitration and award rendered, are herewith annexed. 'The plaintiff insisted that-said evidénce ought to be admitted on the trial of said issue, one the following grounds: • ■ .

1st. Because a judgment or decree rendered against a guardian, establishing a *devastavit*or amount of indebtedness against' the guardian, in favor- of the ward, -is admissible *prima facie*evidence in an action on, the guardian’s bond, against his security on the bond.

2d. Because the defendant could not go behind the decree-for the purpose of inquiring into.tke regularity of the decree, or the award on which said decree was founded and rendered. And the Court did over-rule said- motion and excluded the-testimony, on" the ground that, the rule of Court referring the-said case in Equity to arbitration, required the award to be taken and returned into Court at least thirty. days before the next term of Court; .and it appearing from the date of the award that it had not been returned into Court thirty days-*580;before tbe then next term, tbe decree was irregularly taken and entered up, and could not be admitted in evidence.

, The plaintiff then offered to prove by parol that tbe said decree was rendered with tbe knowledge and assent of tbe said Samuel Spencer, which motion tbe said Court over-ruled; and refused tbe said testimony, and did exclude the same. .Wherefore, tbe said plaintiff closed bis case and the said defendant-moved for a non-suit, wbicb tbe said Court accordingly ordered..

On which decisions error is assigned.,

Law & Bartow, for plaintiff in error.

Ward & Owens for defendant:.

*By the Court.*

Benning, J.

delivering tbe opinion.

[1.] Any judgment wbicb is rendered by a Court that has jurisdiction of tbe cause and tbe parties, binds the parties until set aside, notwithstanding the existence of irregularities-: in tbe proceedings,- previous to tbe judgment, if those-irregularities-.are such as may be waived by parties. *(Rogers vs.*Evans, 8 *Ga. R.*145. *Tucker vs. Harris,*13 *do.*10.)

Tbe decree in question in this case, was rendered by a Court-, which had jurisdiction of the cause and tbe parties.

Tbe rule of Court, referring tbe cause to arbitration, did not: deprive tbe Court of jurisdiction of tbe cause — did not put the-cause out of Court. On tbe contrary, tbe rule in terms retained the cause in Court, for it-provided that something was-to be done in tbe cause in tbe Court after- tbe time of tbe -reference,, namely : that the award was to be returned to. -the Court, and by the Court be made the judgment of .the Court.

Nothing of this sort could be done in a cause not in Court— in a cause over which ¡the Court bad no jurisdiction. ,

Indeed, the cause would not have been put out. of Court, by tbe reference, even if in tbe order of reference itself,, there bad not been this express retention of tbe cause. A *general*reference under an order of Court, does not have tbe effect to-put tbe referred case out of Court. That effect is prevented, *581both by the Statute of 1799 and by the old law — the law which we adopted by the Act of 1784. The 80th section of the Act of 1799, is in these words, in part: “In all matters submitted to reference by parties in a suit under a rule of Court, or other agreement signed by the parties, judgment shall be entered up by the party in whose favor the award is given, and execution shall issue for the sums awarded to be paid, as they respectively become due, and to be levied on the property of the party against whom the judgment shall have been entered up; and such other proceedings shall be had thereon by the Court, as in cases of judgments entered up on verdicts of Juries”. According to these words, a Court no more loses jurisdiction of a cause by committing it to arbitrators, than it does by commit'ting it to a Jury.

This Statute applies to Courts of *Lato;*still, it governs Courts of Equity, for it is the business of Equity to follow the Law.

And the law of our adoption is not different, in this respect, from the Statute. By that law, the jurisdiction of causes, whether they be pending in Courts of Law or Courts of Equity, is not lost by a reference of the causes to arbitration. *(Russel on*Arbitrators, 683, 4, 5, 6.)

The Court, then, rendering this decree, had *jurisdiction*of the cause and. of the parties.

The decree, however, was preceded by an irregularity.

The award on which it was founded had been ordered to be. returned to Court thirty 'days before a particular term; whereas, in fact, it had not, been returned thirty days before that term. - Was the decree good until set aside, notwithstanding this, irregularity ? It was. The time for mating an award inay be enlarged by *consent*of parties — by consent,, either express or implied. *(Russell on Arb.*141.)

This irregularity, therefore, was one which the parties might waive.

It follows, from the general principle first laid down,, that the decree was good until set aside.

[2.] But a decree or judgment which binds the principal, is *582*prima facie*evidence against the'surety. *(Bryant, guardian, &c. and others vs. Pye, 1 Kelly,*355.)

This decree bound Samuel Spencer, who was a party to it, and he was the guardian and the principal in' the guardian’s bond; and-William Spencer, the intestate of Mary Spencer, the administratrix, was the surety of Samuel on that bond.

The decree, therefore, *yfaa prinia fade*evidence against her.

And so it seems that the Court below was wrong in not admitting the decree in evidence.-' ■

There ought, therefore, to be a new trial — and as oh that the decree will be admitted as evidence, it becomes unnecessary to decide the question whether the parol evidence offered to render the decree admissible, was itself admissible. 1