The record should have shown affirmatively that the person chosen to preside on the trial of the cause in the court below, was “an attorney of the court.” — Code, § 610. But, without determining whether the record so shows, we are satisfied that there is no error shown by the bill of exceptions, of which appellant can legally complain.
2. It seems that the umpire, selected as shown by the record, made the award. He did not agree with either of the other arbitrators, though they signed the award with him; and it may be difficult to say, whether they did so because they agreed to the award, or as a verification of the facts set out in the award. But we are of opinion, that the latter is the proper construction. The Code requires, (§ 2713,) that a majority of the arbitrators chosen by the parties may make an award. The award of an umpire is not a statutory award. This cannot be sustained as a statutory award, and therefore it is unnecessary to notice any other matter assigned as error. — Tuskaloosa Bridge Company v. Jemison, 33 Ala. 476. We intimate no opinion upon the other questions argued by counsel, as the one noticed is fatal to the award as a statutory one.
Judgment affirmed.