An arbitrator is a person selected by the mutual consent of the parties, to determine matters in controversy between them, whether they be matters of law or fact. He is invested with judicial functions, limited by the terms of the submission, and he must be incorrupt and impartial, and not exceed or fall short of his duty, and if he acts otherwise, his award may be set aside.
The award on its face ought to show that the arbitrator has acted upon all the matters submitted, and his judgment must be expressed with clearness and certainty.
When two persons are appointed as arbitrators, and it is provided in the submission, or rule of Court, that they may select an umpire, if they cannot agree, it must appear on the face of the award, that the appointment of the umpire was the act of the will and concurring judgment of both the .arbitrators. Russell on Arbitration, 220.
In the case before us, it does not appear in the proceed*128ings of the arbitrators how and under what circumstances the umpire was chosen.
As the arbitrator Howell, in his protest against the award speaks of Hardin as one “ who styles himself umpire,” we conclude that the appointment was made without his consent.
The judgment of his Honor was erroneous, and the award must be set aside.
Let this be certified.
Per Curiam. Venire de novo.