Action of assumpsit, brought to April term 1764:; and at the present term, stated to be held on the 10th of September 1765, at the request and witli the consent of the parties, th • cause was referred to Colonel William Fitzihngh and Bryan Philpot, and if they disagreed, they to choose a third person, and return their award; “and judgment to be rendered according to such award, “and be final between the said parties, according to the “form of the statute,” &c. An award was returned, dated the 26tii of September 1765, signed by the above mentioned arbitrators, together with Charles Bigges. The award stated, that the said W. F. and B. P. being appointed, &c. to settle and determine the matter in dispute between the said parties, and being desirous to have the assistance of a third person, did accordingly call upon C. D. and having duly considered, &c. “do award, that the defendant pay unto the plaintiff the sum of 315?. 17s. 6d. current money, to he released on payment of 215?. 17s. 6iZ. Pennsylvania currency, with costs of suit,” &c.
Upon which award, the court rendered judgment that the plaintiff recover against the defendant, “as well the sum of 215?. 17s. 6d. current money his damages, by the-arbitrators aforesaid in form aforesaid assessed, as also the sum of.” 6cc. for Ms costs, &c.
The defendant brought a writ of error to the court of appeals. And at October term 1767, the case was argued in that court.
[491]*4911. That the judgment was against law and contravened the right of the subject.
That there were submissions by rules of court before the statute of 9 and 10 William III. under which the submission in the present case was made; and that attachments were always the process to enforce a performance as in other cases of a breach of a rule. To prove which, law cases need not be cited, as the preamble to the statute of 9 and 10 William III. has set it forth.
To prove how cautious courts were in granting attachments, cited 12 Mod. 257, 234. 1 Sra. 695. 1 Salk-, 71.
That there was no instance of a judgment being entered on an award, except where there was the security of a verdict — Salk. 84. That an award cannot be the foundation of a judgment. — 1 Inst. 39. Co. Lit. 39. 1 Stra. 395.
The method is by rule of court; and not one instance of a judgment entered merely on the foundation of an award, is the strongest proof that it w-as deemed impracticable. The statute of William takes the method before used at law; it recites person, liable to imprisonment. It would have recited estate liable, had judgments ever been entered.
As usage, is a good interpreter oflaws, so non usage, where there is no example, is a great intendment that the law will not bear it. — Co. Lit. s. 108, 110, b. 115, b„ That rule is applicable to this case; for the rule of court was introduced to avoid vexatious and dilatory proceedings on bonds and awards. Bo certainly would the practice have obtained to enter judgments, if consistent with the office and duty of judges. The reason why such judgments have never been entered may be sufficiently inferred from non user.
The appointment and commission of a judge is exclusively personal. His duty or office cannot be performed by a substitute. — Bac. db. 739. 1 Roll. M. 281. Bro. db. tit. Jud pi. 11. And which would be the case if a judgment is necessarily consequential on an award. Admit the rule in the nature of a judgment- — if the consequences are not carried too far, they are so far the same nature, that they are both obligatory as authoritative judicial acts, and as there is a power to compel their observance; but they essentially vary in the qualities and extent of their operation.
Judgment once given, cannot in another term for error in law, be altered by the judges who gave it. — Co. Litt. 280, a. 3 Lev. 430. There is- a material difference between judgments and rules; the process relative to each differs with ihe qualities of each
[492]*492It appears by the record, that the reference, or submission, was in pursuance of the slatut»-; and it is questionable. whether the, rule is supported by any construction of the statute. By the statute, the party refusing, &c. shall be subject to all the penalties of a contemning a rule of the court wherein he is a suitor; and the court, on motion, shall issue process accordingly. The party lias to the last day of the next term after arbitration, &c. to complain of corruption or undue practice. Nothing is plainer than that by the. statute an award is to be enforced by process of contempt only, and that too on motion. Not requisite for an execution on a judgment. Fre. Ch. 223. 2 Vern. 444.
2dly. That if the judgment could consistently with the statute he entered on the foundation of the award, yet certainly not till the last day of the term after the aw.rd. The party has time by the statute, until the last day of the term after the award, to object to it. The result is, after the term in w hich judgment lias been en-t> red, it cannot be set aside by the judges who gave it, whatever might be the corruption or undue practice of the arbitrators. By the record the judgment was entered at the cause term to which the award was returned; and Btigar has been deprived of the adiantag: expressly given him by the statute. Tim judgment is not agreeably to the statute, nor supported by it A def ndant. entitled to a:i imparlance, is der.-ed it by the court, this is ere >r — 5 Balk, 1G6. Lord Bay. 285. Comb. 13.
3dly. Supposing that a judgment might be given upon the award, and that too without waiting to the last day of the next term, yet a judgment ought not to be given before the award. It appears by the record that judgment was rendered on the 10th of September, that being September term 1765. The award is dated on the 26th of September 1765. The record is to be taken pro verilate; nothing contrary to it can be alleged. The award or the 26th of September, can be no foundation lor a judgment of the 10th. Then the judgment must be taken to have been given on the declaration and plea, but these afford no foundation for its support. Suppose you reject the date of the award for the intendment that the award was subsequent to the submission, and prior to the judgment; then the case will be, submission or. the 10th, award on the 10th, and judgment on the 10th. Can sucha snapping judgment be agreeably to the statute, which gives time for objection?
Sthly, That the award is variant from the submission.
[493]*493The arbitrators have not stated that they differed in opinion, but nay they were desirous to have the assistance oí a third person. Cited 1 Salk. TO. 12 Mad. 20. Vin. tit. Arbitration,, 97. 12 Mod. 512. 1 Btilst. 184.1 Cha. Ca. 186, 786. Finch 141. 1 Cha. Rep. 195. Freem. 154.
tile defendant in error,, contended, that the judgment is supported by the consent and agreement of the parties; and that the statute does not take in this action, it oniy takes in actions on bonds, &c. 1 Stra.
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Action of assumpsit, brought to April term 1764:; and at the present term, stated to be held on the 10th of September 1765, at the request and witli the consent of the parties, th • cause was referred to Colonel William Fitzihngh and Bryan Philpot, and if they disagreed, they to choose a third person, and return their award; “and judgment to be rendered according to such award, “and be final between the said parties, according to the “form of the statute,” &c. An award was returned, dated the 26tii of September 1765, signed by the above mentioned arbitrators, together with Charles Bigges. The award stated, that the said W. F. and B. P. being appointed, &c. to settle and determine the matter in dispute between the said parties, and being desirous to have the assistance of a third person, did accordingly call upon C. D. and having duly considered, &c. “do award, that the defendant pay unto the plaintiff the sum of 315?. 17s. 6d. current money, to he released on payment of 215?. 17s. 6iZ. Pennsylvania currency, with costs of suit,” &c.
Upon which award, the court rendered judgment that the plaintiff recover against the defendant, “as well the sum of 215?. 17s. 6d. current money his damages, by the-arbitrators aforesaid in form aforesaid assessed, as also the sum of.” 6cc. for Ms costs, &c.
The defendant brought a writ of error to the court of appeals. And at October term 1767, the case was argued in that court.
[491]*4911. That the judgment was against law and contravened the right of the subject.
That there were submissions by rules of court before the statute of 9 and 10 William III. under which the submission in the present case was made; and that attachments were always the process to enforce a performance as in other cases of a breach of a rule. To prove which, law cases need not be cited, as the preamble to the statute of 9 and 10 William III. has set it forth.
To prove how cautious courts were in granting attachments, cited 12 Mod. 257, 234. 1 Sra. 695. 1 Salk-, 71.
That there was no instance of a judgment being entered on an award, except where there was the security of a verdict — Salk. 84. That an award cannot be the foundation of a judgment. — 1 Inst. 39. Co. Lit. 39. 1 Stra. 395.
The method is by rule of court; and not one instance of a judgment entered merely on the foundation of an award, is the strongest proof that it w-as deemed impracticable. The statute of William takes the method before used at law; it recites person, liable to imprisonment. It would have recited estate liable, had judgments ever been entered.
As usage, is a good interpreter oflaws, so non usage, where there is no example, is a great intendment that the law will not bear it. — Co. Lit. s. 108, 110, b. 115, b„ That rule is applicable to this case; for the rule of court was introduced to avoid vexatious and dilatory proceedings on bonds and awards. Bo certainly would the practice have obtained to enter judgments, if consistent with the office and duty of judges. The reason why such judgments have never been entered may be sufficiently inferred from non user.
The appointment and commission of a judge is exclusively personal. His duty or office cannot be performed by a substitute. — Bac. db. 739. 1 Roll. M. 281. Bro. db. tit. Jud pi. 11. And which would be the case if a judgment is necessarily consequential on an award. Admit the rule in the nature of a judgment- — if the consequences are not carried too far, they are so far the same nature, that they are both obligatory as authoritative judicial acts, and as there is a power to compel their observance; but they essentially vary in the qualities and extent of their operation.
Judgment once given, cannot in another term for error in law, be altered by the judges who gave it. — Co. Litt. 280, a. 3 Lev. 430. There is- a material difference between judgments and rules; the process relative to each differs with ihe qualities of each
[492]*492It appears by the record, that the reference, or submission, was in pursuance of the slatut»-; and it is questionable. whether the, rule is supported by any construction of the statute. By the statute, the party refusing, &c. shall be subject to all the penalties of a contemning a rule of the court wherein he is a suitor; and the court, on motion, shall issue process accordingly. The party lias to the last day of the next term after arbitration, &c. to complain of corruption or undue practice. Nothing is plainer than that by the. statute an award is to be enforced by process of contempt only, and that too on motion. Not requisite for an execution on a judgment. Fre. Ch. 223. 2 Vern. 444.
2dly. That if the judgment could consistently with the statute he entered on the foundation of the award, yet certainly not till the last day of the term after the aw.rd. The party has time by the statute, until the last day of the term after the award, to object to it. The result is, after the term in w hich judgment lias been en-t> red, it cannot be set aside by the judges who gave it, whatever might be the corruption or undue practice of the arbitrators. By the record the judgment was entered at the cause term to which the award was returned; and Btigar has been deprived of the adiantag: expressly given him by the statute. Tim judgment is not agreeably to the statute, nor supported by it A def ndant. entitled to a:i imparlance, is der.-ed it by the court, this is ere >r — 5 Balk, 1G6. Lord Bay. 285. Comb. 13.
3dly. Supposing that a judgment might be given upon the award, and that too without waiting to the last day of the next term, yet a judgment ought not to be given before the award. It appears by the record that judgment was rendered on the 10th of September, that being September term 1765. The award is dated on the 26th of September 1765. The record is to be taken pro verilate; nothing contrary to it can be alleged. The award or the 26th of September, can be no foundation lor a judgment of the 10th. Then the judgment must be taken to have been given on the declaration and plea, but these afford no foundation for its support. Suppose you reject the date of the award for the intendment that the award was subsequent to the submission, and prior to the judgment; then the case will be, submission or. the 10th, award on the 10th, and judgment on the 10th. Can sucha snapping judgment be agreeably to the statute, which gives time for objection?
Sthly, That the award is variant from the submission.
[493]*493The arbitrators have not stated that they differed in opinion, but nay they were desirous to have the assistance oí a third person. Cited 1 Salk. TO. 12 Mad. 20. Vin. tit. Arbitration,, 97. 12 Mod. 512. 1 Btilst. 184.1 Cha. Ca. 186, 786. Finch 141. 1 Cha. Rep. 195. Freem. 154.
tile defendant in error,, contended, that the judgment is supported by the consent and agreement of the parties; and that the statute does not take in this action, it oniy takes in actions on bonds, &c. 1 Stra. 301 — That no right is contravened by an agreement, that the court should give judgment on an award when returned. That it has been the constant and uniform practice — -1 Salk. 269. 1 Cro. 502. Carth. 283, 4. 3 Cro. 52,7. 2 Co. Lane's case. Salk. 83. 1 Salk. 73. Barnes' notes, 54, 5.
To tiie 2d point that the judgment could not be entered till after the last day of the nest term, cited in answer, 1 Stra. 301. That it does not appear when Septembci term ended; and that it was the constant practice to enter up judgments on awards as of the court of reference. Cited 1 F. Wms. 399, 223. 2 P. Wans. 2, 259. Hob. 83. Felv. 126. 1 Moll. Mep. 223. Garth. 284. 1 Show. 124. Faresly 93.
Opinion of Daniel Didany, Esquire, given in this case, see 1 Harr. ft M»Hen. Mep. 248, and ending in pag’e 253 at the bottom.
The Court or Arreáis reversed the judgment of the Provincial Court.
It is stated in 1 Harr. ft M‘Hen. Mep. 247, that at October term 1767, a motion was made in the provincial court, (after the reversal of the judgment in the court of appeals,)' on the part of West, for an attachment of couicmpt against the defendant for not performing the award; but the records of the provincial court do not shew that such motion was made. That it was in contemplation, if it was not made, appears by the notes oí* counsel, and also by an opinion given upon the subject by Daniel Dulany, Esquire, as stated in 1 Harr. ft M'llen. commencing at the bottom of page 253. The folio wing questions, in addition to those stated in 1 Harr, ft M>Hen. 347, appear to have been submitted to counsel.
[494]*4941st. Whether the provincial court can now issue an attachment of contempt against Stigar for non-performanee of the award, as the last day of the term after the award, is long since expired, as till then Stigar had time by the statute to make his objection to the award, as the cause is there discontinued in fact, and as a time has also run beyond the limitation in the act of assembly of 1721, ch. 14?
2d. Whether supposing it now regular to issue an attachment can it issue till an affidavit of a tender of a release to Stigar agreeably to 12 Mod. 234?
3d. Whether Stigar can be said to have committed a contempt of the court, as there is no rule of court, “that the parties shall submit to, and be finally concluded by the arbitration made pursuant to such submission,” agreeably to the statute of 9 and 10 William III. but only that the judgment be final between them?
4th. Whether an attachment can issue for the nonperformance of the award, as it does riot pursue the submission? The submission was to W. F. and B. P. and if they disagreed to a third person; the award itself proves no disagreement, it recites, that «being desirous to have the assistance of a third person,” &c.
5th. Whether the award be not bad for this reason— there must have been disagreement or not; if a disagreement, the power of the arbitrators ceased, and the umpire only could act; if no disagreement, then C. D. the umpire had no power to act, and the award should have been by the arbitrators only.
6th. If West had an election to proceed upon the judgment, or by way of attachment on the award, whether his accepting of the judgment, and electing that method, does not bar him of his attachment on the awai'd?
7th. If the provincial court should grant the motion, and order an attachment of contempt, has Stigar no remedy, or can he remove such order to the court of appeals by way of appeal, writ of error, certiorari, &c?
It appears that a new suit, upon the same cause of action, was brought to May term 1768. the writ in which case issued .on the 21st of October 1767, the day after the meeting of the provincial court and court of appeals», at their October term 1767, and that a jury was sworn therein at April term 1770, but afterwards a juror was; withdrawn, and the case compromised.