By the Court.

delivering the opinion.

Was the Court right in making the award, the judgment of • the Court ?

If there is any law which authorizes this award to be made the judgment of a Court, it is the Judiciary Act of 1799, Cobb, 1140, or the arbitration Act of 1856, ¿lets of 1856,222. Therefore, we must hold, that the Court below erred in making this award, the judgment of the Court, unless this case falls within one of those two Acts. Does it fall within either ?

It does not fall within the Judiciary Act, for the only award that it includes, are awards made in cases pending in the Courts. This was not an award made in a pending case.

Neither does the case fall within the Act of 1856. The arbitration was not under that Act. The second section of that Act says, that “every arbitration shall be composed of three arbitrators, one of whom shall be chosen by each of the parties, and one by the arbitrators chosen by the parties.”

In the present case, there were only two arbitrators; true, *424two, with power to select an umpire — a power which they did not exercise; but if they had exercised the power, two arbitrators and an umpire are not three arbitrators; an umpire intervenes only when the arbitrators disagree.

Besides, the Act, in other parts, clearly contemplates, that the third man, the appointee of the two appointees of the parties, shall be a full arbitrator; that he shall fully share with the other two in all their powers, and in all their duties. See the 4th and 10th sections.

The case not falling within either of these Acts, there was no power in the Court, as far as we know, to authorize it, to make the award the judgment of the Court. And for this reason, we think that the judgment of the Court making the award its judgment, was erroneous.

Judgment reversed.