The opinion of the Court was delivered by
Huston, J.No objection was made it would seem in the court below as to the justice of the award, or the conduct of (he arbitrators. The objections are precisely such as the parties agreed not to make. If two causes had been submitted to arbitrators, it is quite probable they would have made separate awards: but the parties agree that they shall in the action of covenant investigate the matters in that of account render, and award on the whole indiscriminately; and this part of the first agreement was expressly retained when the first reference was struck off; and in the last attempt to try by a jury, they agreed to try both together and waive all form. The last agreement to refer both causes by the attorneys is framed to meet difficulties as to form: the award is (o be conclusive and neither party to file any exception. It would be strange if after all this the court would permit the repeated agreements to be disregarded, and listen to mere formal objections. The cases in 3 Penns. Rep. 99, 291 are decisive, and ought to have put this matter at rest.
By the act of 1705, parties or their attorneys might consent to a rule of court for referring the cause to persons mutually chosen in open court. The award being approved by the court and entered on the record shall have the effect of a verdict, &c.
It has been observed, in one of the cases cited by Justice Duncan, that most cases referred had been in vacation and not in open court; and in all the cases cited on the argument, there was not one in which it appeared that the reference had been made, by any entry on the docket, a rule of court. I rather think I never saw on any docket that the reference was made a rule of court; and none of my brother judges have any other impression. In point of fact, as the parties have the right to refer and the court cannot restrain this right, it would be idle to ask for a rule of court, and it is never asked ; and long and universal practice has made it unnecessary.
The first exception is drawn without consideration ; a reference at common law is one where there is no cause in court, and may include every thing in dispute between the parties. The exception is, that it is at common law and included matters not in issue in this suit. Now if it was in a suit, it was not at'common law ; and the including matters not in issue in that suit would have been error if the agreements before stated had not been made.
When partners differ, and one goes off and leaves the store and books with the other, and brings covenant on the articles of agreement, it is not easy to ascertain the damages until an account is taken and the whole investigated ; no final and just conclusion can be arrived at until this is done; the parties were aware of this; perhaps *365no jury can investigate the books and ascertain the state of accounts of a firm of long standing and whose transactions have been very various. The parties knew this and provided for it. The award, being under the act of 1705, must be approved by the court; and the judgment entered by the prothonotary on the award, before it was seen by the court, was irregular and was set aside, and with it the execution issued on that judgment. Exceptions were then filed and properly overruled, and judgmententeredon the award ; and the only error is in defendant, who has attempted to violate his own repeated deliberate agreements; and that so far as we can see without cause.
Though it is not assigned as error, something was said about the award being conditional, and that Quiggle must perform his part before he is entitled'to execution, But it is not so. The award does not direct him to do any thing. It states that the goods, books, &c. which h.ave been left by him in the hands of D. Bemus shall be the property of Bemus; and Quiggle, by assenting to the award, affirms this. If, before issuing execution, he should resume the possession of the property, the court will stay his execution : if, after collecting his money, he should take possession of any of the property or collect any of the debts, he will be liable to an action. But I will nqt go further or more minutely into this matter : the record has not presented this as a point to be decided. I may add, that our practice admits that, to aeertain extent, verdictsor awards may be conditional and our reports show that such have been supported in court,
Judgment affirmed,