Camp v. Root — 18 Johns. 22

Majority

p. 22

Camp and another, Administrators of Clark, against Root.

Headnote

where the ScüoT of re-court^ofc p! entered into a written agreement to refer the cause to B. to be oniegafprinch EpoSrfth™?¿ that the*cause if tobe heard and determined by him, and that^hejeport and B, made a wfich’the ¡^mediately menti"j^e)d that this not being a case referable un-derthestatute, but a volunta-to the arbitra-meat of B. it wasadisconti- . _ , . , nuance of the suit, and the Qourt having no jurisdiction, the judgment on the award or report was erroneous»

IN ERROR to the Court of Common Pleas of Oneida. County.; Root brought an action of Replevin against Camp and Clar/r,. administrators, &c. in which the defendants. avowed a taking for rent, &c. The plaintiffs pleaded in . ‘ 1 r bar to the avo\fries 5 to which pleas there was a demurrer . . . . , . . , _ . joinder. The parties, by. their attorneys, entered into a written agreement, or rule,by, consent, referring this and two other actions to Ezekiel Bacon, to be determined on legal principles 5 .and a rule was accordingly entered in the court below, as follows : “It is ordered that this cause be referred to Ezekiel Bdcon, Esq. by.him to be heard, examined, and 7 A ' determined, and that he report to this court.5’ The rete-ree afterwards, on the 14th October, 1818, made areportin writing, as follows, to wit: “ Upon hearing the parties to the submission, by themselves and their counsel, and after fall consideration of their respective pleas and allegations, r —“ J do, therefore, award and determine that * p 7 tjle plaintiff recover for the illegal taking, &c. six cents * . ° ° damages.” Root, by his attorney, moved that the report be confirmed, and for judgment thereon, for the damages

p. 23

reported and the costs of suit; and the Court below thereupon gave judgment accordingly, for the damages, and 48 dollars and 30 cents, costs.

Sill for the plaintiffs in error.

N. Williams, contra.

This is plainly a case of submission to arbitration ; it is, in no respect, a reference under the statute. The parties chose to enter their submission upon the minutes of the Court, and to direct the arbitrator to make report to the Court; but all this does not vary the rights of the parties, nor authorize the Court to give judgment immediately on the award.

The submission to arbitration was a discontinuance of the suit.

In the case of Yates v. Russell, in the Court of Errors,^[1] it was expressly stipulated by the attorney for the defendant, that if the referees reported against him, judgment should be entered against him for the sum so reported. And that was considered equivalent to a plea of confession for that amount. But in this case there is no such stipulation. We are, therefore, of opinion, that Mr. Bacon’s report is to be regarded as an award merely; and that the judgment thus summarily entered upon it was erroneous.

judgment of reversal.

(a) (a) Vide 17 Johns. Rep. 461 .