delivered the opinion of the court,
This was an award under the Compulsory Arbitration Law, and was necessarily subject to an appeal unless it appeared that by agreement of the parties it was to be final and conclusive. What evidence does this record present that there was any such agreement? The arbitrators have inserted in their award the words *419“by consent of parties.” To wbat did the parties consent? Surely to nothing more than that the arbitrators should then make an award, and even if the construction should be that it meant that they should make just the award which they did, which would be to push the construction to its extreme limit, that would not authorize the conclusion that it was intended to change the whole character of the arbitration from one of the compulsory kind to an agreement of final reference. The right of trial by jury is a constitutional one, and nothing but a, clear agreement can waive the right of appeal. The rule which has been established as to appeals from justices of the peace, is equally applicable to the class of awards of this kind: Dawson v. Condy, 7 S. & R. 366; Rowen v. King, 1 Casey 409. In this last cited case the right of the defendant to appeal even from a judgment by confession was sustained. The reason given in the opinion of the court applies with equal force to an award. It may be a mistake, or the attorney may have acted contrary to the instructions of his client. One party to a suit will sometimes enter a rule to arbitrate for the mere purpose of discovering what his opponent’s evidence is. The other party may properly disappoint such a design by consenting that the arbitrators shall make an award on the evidence before them or find no cause of action without going into his case. He may run some risk as to his evidence by such a course, but surely there is no implication that the right of appeal is intended to be waived. It is not necessary to consider the effect of the delay and the taking the costs out of court.
Order of the court striking off the appeal reversed and procedendo awarded.