
    Joseph Penny v. Henry Carl.
    An award made by arbitrators appointed under an agreement of reference, without fixing a day for the hearing of the parties, and without talcing any other.oatli than such as appears at the foot of their report — “ sworn and subscribed,” &c. — is a nullity.
    O. P. 450.
    PPEAL from the District Court of East Baton Rouge, Robertson, J.
    
      Dunn, for plaintiff.
    
      Bradley, for defendant and appellant.
   Yooriiies, J.

On the 22d July,' 1850, Joseph Benny and Henry Gcvrl entered into an agreement to submit to arbitrators the differences arising between them in relation to the settlement of the accounts of their partnership in a plantation and wood business. One of the clauses of this agreement is as follows:

“ They further stipulated that said arbitrators shall, after examining their respective claims and hearing evidence that either party may produce, make an award, to be returned to the Sixth District Court for the Parish of East Baton Rouge, and to have, on rule taken by either party against the other, the force and effect of a judgment; and the parties further bind themselves under the penalty of $500, to stand to and abide by the award made by said arbitrators, and not contravene the same.” It was further covenanted, that the award, agreement, and all other papers submitted to the arbitrators, should be filed with the clerk of the court. This was done on the 6th of September, 1850. The account stated bjr the arbitrators, which accompanies their award, shows that Garl is indebted to Penny in the sum of $737 68.

On the 9 th of the same month, Garl filed a petition, setting forth the agreement and the award of the arbitrators, and that the award was null and void on the following, among other, grounds: That the arbitrators were not sworn ; that no day was fixed for the hearing; that the witnesses were not put upon oath, &c.; and also alleged that Penny was indebted to him in the sum of $1,417 28. He therefore prayed that Penny be cited to answer his petition, and condemned, on declaring said award null and void, to pay him said sum of $1,417 28, with legal interest from judicial demand.

On the 18th September, 1850, Penny ruled Garl to show cause why the award should not be homologated. To this rule Garl answered, adopting the allegations of his petition, and praying that the same he cumulated and tried with the action thus instituted by him, the award rejected, and judgment rendered in his favor for the amount claimed in his petition.

In dissolving this rule on the 9th Juty, 1851, the judgment of the District Court declares: “ The pretended award not being homologated, neither is it definitely rejected — -its merits to bo inquired of on future audience, a day to be assigned to hear the witnesses to prove the alleged objection to the pretended award.”

The only evidence of the oath taken by the arbitrators is the following certificate at the foot of their report: “ Sworn to and subscribed before me, this 29th August, 1850. — John R. Dufrorg, J. P. This is clearly insufficient under the ruling in Lode et al against Dakin & Dalein, 15 L. R. 425. The second objection, that no day was fixed for the hearing by the arbitrators, is equally fatal. O. P. 450. The award must therefore bo considered as a mere nullity.

These cases having been cumulated, the District Court rendered judgment in favor of Penny, against Carl, for the sum of $737 68, adopting as the basis thereof the award of the arbitrators, and the latter appealed.

We think the judge a quo erred. The award of the arbitrators should not have been made the basis of the judgment.

The evidence taken after the filing of the report of the arbitrators, shows that Carl admitted all the items, with the exception of three, of the account of Penny against him, which formed the basis of the award of the arbitrators. The item of $205, paid on Carl's note in favor of Mrs. Lilly, is satisfactorily proved by the testimony of the latter. The item of $15, for expenses lo New Orleans, is the only item we find unsupported by evidence. The credit side of Penny's account exhibits $957 35, received for wood, as per statement; $136 received from Carl, $17 50 from Mays, and $45, half the salvage on a lot of cotton, making an aggregate of $1,156 33. This amount, it will be observed, is partly composed of credits of the partnership and of Carl. The debit side, amounting to $1,879 03, is also composed of items chargeable both to Carl and to the partnership: hence the error in the award of the arbitrators, and of the judgment of the District Court. But the evidence in this respect is entirely insufficient to enable us to adjust the rights of the parties.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and the case remanded for further proceedings according to law, the costs of the appeal to be paid by the appellee.  