The opinion of the Court was drawn up by
Tenney J.The liability of the defendant could not depend upon the performance of the agreement on the part of the plaintiff to leave the farm, because the latter was to take place subsequently to the payment by the terms of the contract. The referees agreed upon by the parties to determine the sum, due from the defendant to the plaintiff met and heard them and made their award the tenth of August, 1841, and the same was presented to the defendant and payment demanded and refused on the tenth of September, 1841; all which was long before the bringing of this action. We see nothing, which can lead us to the conclusion, that the action was prematurely commenced.
It is insisted that the plaintiff has mistaken the form of action ; that it should have been covenant and not debt.
The agreement is not in its nature a contract to arbitrate and to abide by the award ; but is one where the defendant was to pay at a stipulated time and in a certain manner a sum to be fixed by the referees. The sum was fixed on the tenth of August, 1841, and report made. The sum claimed in this action was one, which was liquidated, and by the omission on *335the part of the defendant to make payment, it became fixed and determinate, payable in money, depending on no subsequent valuation. 3 Bl. Com. 154; Ch. Pl. 102.
The defendant must be defaulted, and judgment to be made up by the clerk according to the agreement in the statement of facts.