Long v. Long

9 Va. 431

Opinion

Lyons, President,

delivered the resolution of the court, that the judgment was erroneous, as the order of reference should have been set aside, and the issue tried.

The entry on the order book is as follows: “ The court is of opinion, that the said judgment is erroneous in this, that the motion of the appellant, made on the first day of May, 1800, to discharge the order of reference in this cause, the award returned by the arbitrators having been set aside, ought not to have been overruled, but that the said order of reference ought to have been set aside, and the issue in the cause tried by a jury: Therefore, it is considered that the said judgment be reversed and annulled, and that the appellant recover against the lessor of the appellee his costs by him expended in the prosecution of his appeal aforesaid here. And it is ordered that the said order of reference, and the award made in pursuance thereof, he set aside, and that the issue joined between the parties be tried by a jury.”

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Judge Tucker did not sit in this cause; but his note book contains the following memorandum upon it:

“ Note. — It appeared to be the opinion of all the judges, in conference, that an order of reference might be set aside at any time (if no award be made), on motion of either party, provided the trial is not thereby delayed, or the party surprized. Kyd on Awards, was cited by the counsel in their arguments, pp. 16,17.”