This is a suit to render executory an award of arbitrators. The defendant opposes the said award on the following grounds of informality :
1st. That the arbitrators were not sworn.
2d. That the defendant was not notified of the time or place of the examination of the matters submitted.
3d. That the arbitrators decided without having any evidence or»testimony.
4th. That the arbitrators have exceeded their powers under the submission. The first, third and fourth of these grounds of objection are sustained by the evidence; but for the purpose of this decision, it is only necessary to notice more particularly the first.
Neither the submission nor the award make any mention of the arbitrators having been sworn; and two of these arbitrators, being called by plaintiff as witnesses in the case, testify that they were not sworn.
The want of this formality is fatal to the award. The Civil Code, article 3078, requires that arbitrators, before examing the difference to them submitted, shall take an oath before a Judge or Justice of the Peace, to render their award with integrity and impartiality in the cause. This article is copied literally from the Code of 1808, p. 422, Art. 13. Harrod v. Lewis, 3 Mart. Rep., 318. The case of Talcott v. McKibben, 2 Martin, 298, does not conflict in the least with this provision of the law. That was a case left, by consent of parties, and an order of court entered upon such consent, to five merchants named in the order, whose report was to be made the judgment of the Court. And even in that case, although from the language of the decision it might be inferred that the oath of referrees, under the circumstances, was not material, yet we find from *90the argument of the counsel as reported, that the report itself stated that the rcferrees were “first duty sworn.”
The counsel of the plaintiff in argument has urged upon the attention of this Court the evidence of one of his witnesses, that defendant had acknowledged the correctness of the award. But we do not understand the merits of the controversy between those parties to be before us. This action is not an appeal from the award of the arbitrators. 0. C., 3096. And it seems to be settled in the case of Sharky v. Wood, 5 Robinson, 326, that parol evidence is incompetent to eke out an award, deficient in the essential formality of an oath of the arbitrators.
It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that this suit be dismissed at cost of plaintiff in both Courts, without prejudice to the rights of the parties in asserting their original demands against each other according to law.
Slidell, O. J.The action is brought upon an award of arbitrators'; the sum claimed under the award is $3340, with eight per cent, interest from 13th October, 1852. The defendant resisted the action upon the grounds, that the arbitrators were not sworn, that he was not notified of the time or place of examination, that the arbitrators heard no evidence, that their decision was unjust and exorbitant, that they have allowed him no credits, had no statement of the mode in which they arrived at their conclusions, and had exceeded their powers. There was judgment in favor of the plain tiff for the amount claimed, and the defendant appealed.
In argument here the validity of the award has been questioned on several grounds, a portion of which only I proceed to notice.
The agreement for arbitration is in these words: “¥e the undersigned do hereby agree to appoint two disinterested persons to say what A. P. Bethea shall receive per month for keeping the livery stables known as A. P. Bethea’s, and also for attending to other business which he had in his care. Should the two first persons not agree, then the said persons may call on the third person, and whatever they may determine, we the undersigngd agree to abide by, from the year 1850 to the present day, 13th October, 1852.
(Signed) Govey Hood,
A. P. Bethea.
The award bears date on the same day, and is as follows :
“ The undersigned arbitrators, to wit: John Bighter, appointed and selected by Govey Hood, in pursuance of the above submission, and Ha/milton JD. Wag-non, appointed by A. P. Bethea, after consultation, could not agree. We then selected Robert N. CJampbeTl, according to the above submission, and thereupon proceeded to award as follows: Govey Hood is to take the stable with all the property belonging thereto, and is to have all the book accounts, notes and assets, connected therewith, and the said Hood is to pay, and is hereby made responsible for all costs made by the stable for all purposes connected therewith, cither in the name of A. P. Bethea or otherwise. And the said Hood, is further awarded to pay to said Bethea, the sum of one hundred dollars per month from the first day of January, 1850, up to the thirteenth day of October, 1852. Said award is made as cash at this date. And should the said Hood fail to pay cash, *91then this is to bear 8 per cent, interest from this date. This done, and this pro-ces verbal made, this 13th day of October, A. D. 1862.
(Signed) John Rigetee,
H. D. Wagnon,
R. N. Campbell.
It is obvious, from a comparison of the agreement and award, that the referees exceeded their powers. They were to say what Bethea should receive per month for keeping the livery stable and for attending to other business which he had had in his care. The general expressions, “ whatever they may determine we the undersigned agree to abide by, from the year 1860 to the present day, 13th October, 1862,” cannot, in themselves at least, be considered as enlarging the purpose of the submission, so as to cover all matters in dispute between the parties. But the arbitrators have gone much further, have closed the entire accounts of the establishment, and while they restore its exclusive possession to Mood, make him answerable for all liabilities connected with it, either in the name of Bethea or otherwise.
The difficulty presented by this stretch of power on the part of the arbitrators is increased by'a consideration of testimony, which was received without objection at the trial, respecting their proceedings, by the nature of the transactions between these parties so far as they have been developed by the evidence, which is certainly very meagre, and by a fact apparent on the face of the award.
We gather from the evidence oral and documentary, that Hood, being the owner of the livery stable, had employed Bethea to carry it on, whether as a mere agent or as a partner does not appear. This state of things seems to have lasted nearly two years, and must have involved extended accounts of receipts and expenditures. The arbitrators disposed of the whole matter in a brief consultation on the day of the submission. They heard no testimony, are not shown to have examined any accounts, nor to have received any explanations, or heard any formal discussions from the parties or their counsel. Disagreeing, they named and sent for an umpire, Campbell, who says he knew nothing about the matter until five minutes before he acted; that the only question seemed to be, how much wages plaintiff should receive ; that the;f took no evidence in his presence; that at the time of the arbitration, Mood sat at the door of the stable, and Bethea was walking in the stable, but he could not say whether Mood knew what they wanted with him, Campbell. Another of the arbitrators says neither Mood nor Bethea knew what the arbitrators were doing, nor what was the difference between him and his co-referee. ’
There is a precipitancy and looseness in these proceedings, which leaves our minds dissatisfied with the conclusions of the referees; and the difficulty is much enhanced by a consideration of the very unusual circumstance of a person being employed for so long a time in such a capacity without any payment on account for his services.
It is true there is evidence of oral admissions by the defendant as to the correctness of the award; but this testimony is weakened by the consideration of the amount involved, and that the referees themselves could not have had a very accurate acquaintance with their duties or the subject matter, since they had to apply to a third person to write the award, not knowing how to do it.
On the whole, I am not able to come to a satisfactory conclusion as to the merits of this controversy, and therefore concur in the reversal.