— The opinion of the Court was delivered by
Tr unkey, J.The power vested in the courts by the act of March 14, 1876, P. L., 7, in relation to the entry of satisfaction of judgments which have been fully paid by the defendant being in derogation of trial by jury must be strictly construed, and, therefore, limited to cases of actual payment in full.
To hold that everything which could be given in evidence under the plea of payment in the trial of a pending suit shall be treated as actual payment after judgment, would be a wide departure from the letter and spirit of the act: Felt v. Cook, 95 Pa. St., 247.
The act is intended only for cases where it is clear that the judgment has been paid to give a summary remedy where the facts are undisputed. It does not apply when there is a substantial dispute about the facts : Horton v. Hopf, 4 W. N. C., 381.
In the application of the defendant he set out that the plaintiff’s judgments were not fully paid, that he claimed the right to set-off a debt upon book-account, and that the plaintiff refused to allow the set-off. The plaintiff’s answer to the rule to show, cause stated his reasons for that refusal, and prayed the Court to discharge the rule.
But the Court appointed a commissioner to take testimony, and afterward the attorneys “agreed that the commissioner, in addition to taking testimony, report the facts to the Court with his opinion.”
Upon the facts set forth in the application, it was error to grant the rule to show cause. Taken as true they made a case not within the operation of the statute.
When the answer was filed the rule ought to have been' discharged ; but instead, the Court appointed a commissioner to take testimony. It does not appear that the parties consented to such appointment, or to a reference. They agreed that the commissioner might also report the facts with his opinion ; not that he should determine whether a book-account should be set off against the plaintiff’s judgment.
They might have made an agreement that he should act as arbitrator or referee ; no set form of words or technical phrases were requisite for the making of it, but such words or acts were requisite as would clearly show a submission.
*530Prom the commencement of the proceeding it affirmatively appeared that there was no case for the appointment of a commissioner, and that the plaintiff refused to allow the defendant’s claim. Then, it ought not to be inferred from his agreement respecting the commissioner’s report that the plaintiff submitted the dispute to a referee.
It mattered not to him whether the commissioner or the Court found the facts from tlie testimony, for neither had power to determine the controversy under the act of 1876.
The learned judge of the Common Pleas rightly concluded that this case was not within the intendment of the act, but we think he erred in ruling that the parties created their own tribunal for disposition of the case, and therefore ordering satisfaction of the judgment to be entered.
Decree reversed, application dismissed, and appellee to pay the costs.