By the Court. —
Nyon, J.,delivering the opinion.
We agree with the Court below, that the award of the arbitrators should not have been made the judgment of the Court. The parties had agreed to submit the matter in litigation between them “to arbitrators, under an Act of the Negislature, approved March 5th, 1856, entitled “An Act to authorize persons to submit controversies to arbitration,” and that the persons selected and named in the agreement of submission, should, “as arbitrators, settle, adjudicate, and pass upon the aforesaid several matters in controversy under the provisions and regulations of the aforesaid Act.” Under this submission, the arbitrators were to be governed in their deliberations, and to return their awards according to the stipulations and provisions of that Act. All of its provisions and requisitions were made a part of the agreement of submission, as much as if each one had been distinctly written out and signed by the parties, and a material departure therefrom, by the arbitrators, would render the award void. One of the essential requisites to the validity of the award, under that Act, according to the construction of this Court, in Smith vs. Walden, 26 Ga. 249, is, that the award must be agreed to by the whole of the three arbitrators. Unanimity was, therefore, as essential to the efficiency of the *592award as if it had been so stated in the agreement — that was the agreement — and as' the award was not agreed to by all the arbitrators, it was properly rejected.
But it is claimed that the parties, by referring again to the Act of 1856, in the modified agreement of 12th October, i860, after that Act had been amended by the Act of 12th December, 1859, making the concurrence of two of the arbitrators sufficient to make the award good, intended that the Act of 1856, as amended, should govern and control the deliberations and award of the arbitrators, and that the award was good under that Act as amended. We do not think so. The reference marks more distinctly the intention of the parties, that the award should be made in accordance with all the requirements of the Act of 1856, save only in such matters as they expressly waive by the latter agreement. That the Act of 1856 was amended, does not affect the agreement: it remains as it was made, and a change of the law does not alter it.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.