
    The New Albany and Salem Railroad Company v. McPheters.
    An award, to bo of any validity, must, under the statute, be signed by an attesting, witness, before the expiration of the official existence of the arbitrators.
    
      Wednesday, June 15.
    APPEAL from the Monroe Court of Common Pleas.
   Perkins, J.

Joseph G. McPheters and the New Albany and Salem Railroad Company referred their pending differences to arbitration, making the submission a rule of the Court of Common Pleas of Monroe county. The terms of submission required that “the award should be reduced to writing, and a copy thereof, be delivered to each of said parties, by the 13th day of January, 1857.”

On the 10th day of January, the arbitrators pretended to make their award. They returned over 1,000 dollars in favor of McPheters; but on presenting the copy of the award to the Court for entry of record, he showed to the Court that, by a clerical error, it was for too large an amount, and that the true amount awarded was 624 dollars, 96 cents, and for that sum he asked that a rule to show cause, &c., upon the other party be entered and served.

The award was not signed by an attesting witness when it was presented to the Court for entry of record, and the Court permitted it to be then signed; but the copy of the award delivered to the railroad company, never had the name, or a copy thereof, of an attesting witness attached to it. There was judgment, over the defendant’s objection, on the award.

We do not see how this judgment can be sustained.

The award of the arbitrators, by the terms of submission, was to be made by the 13th of Jcmuary, 1857. It was to be made in a statutory arbitration, as it was to be made a rule of Court. It was necessary that the award should be complete at that time, as the arbitrators, without the consent of both parties, would have no power, to act afterwards; and no consent for an extension of time was given by the parties.

It is held, in The Jeffersonville, &c., Co. v. Mounts, 7 Ind. R. 669, that an award, under the statute, to be of any validity, must be attested by a subscribing witness. Ind. Dig. 133.—2 R. S. p. 229, § 9.

The award, then, in this case, before it could have any validity, before, in fact, it could be an award, must necessarily have been signed by an attesting witness.

It was not so signed before the 13th day of January, 1857, the day by or before which the power of the arbitrators to act in the premises, ceased. It did not, then, become an award within the official existence of the arbitrators, and could not afterwards. At all events, no copy of a valid award was delivered to the railroad company, as it was not attested when such delivery was made.

J. Baker, for the appellants.

It seems that no award has ever been made pursuant to the submission. 2 Phil. Ev. (ed. 1859), p. 404. The Court should not have permitted it to be filed as the foundation for a rule to show cause.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &e.  