By the Court,
Sutherland, J.The submission of all suits and controversies to arbitration, is a discontinuance of a suit depending in court, where there is no provision made for its continuance by authorizing a rule for judgment on the award, (6 Cowen, 399 ; 18 Johns. R, 22;) bat the party who might have insisted on the discontinuance, was competent to waive it; and, in this case, it was waived by the defendant’s counsel appearing at the trial, cross-examining the plaintiff’s witnesses, and addressing the jury. As to the terms imposed, upon granting a new trial, those rested in the discretion of the common pleas, with the exercise of which this court never interferes. Motion denied, with costs.