Afterwards on a subsequent day in the term, the opinion of the Court was delivered by Read, C. J. This is a motion to quash the writ of error upon the ground of the Statute of the 9 & 10 of Will. III. It is the opinion of the Court that the proceedings are not to be considered as under that Statute. The form of the rule of reference, exclusive of the forms prescribed by the Statute, which have not been observed, is proof of this. The Statute is generally declarative of the common law but contains some new provisions. Awards at common law are in suits referred, which had previously depended in court. The provisions of the Statute do not extend to cases not referred according to the forms it directs. Awards made in pais were subject to the delays of a suit, and the Statute was designed to correct the evil. It provides that the execution of the award shall not be stayed by the authority of any other court. Upon an award under the Statute no judgment is given by the Court, or otherwise an execution might be had. By the rule of reference it is agreed that judgment shall be given by the Court; the writ of error is, of consequence, for it is a remedial writ, a writ of right and lies in all cases where a judgment is given by an inferior court. The authorities are strong to this point, and cannot be contradicted. The act of the parties requiring judgment to be given by the court below is a ground for the writ of error. An award at nisi prius is not within the Statute, but at common law, 1 Str. 301. Awards at common law are not to be regulated by the provisions of the Statute.
There is much abuse of the practice of references in amicable actions; they were formerly made only in term time. If a case be referred not within the provision of the Act of Assembly, it is not entitled to the remedy of it, such as ejectment, trespass, etc. These are at common law. Amicable actions by long course of practice are to be considered as within the Act, [1 DeLLaws 163]. They are attended with judgment and execution and of consequence are subject to a writ of error. The case of Porter v. Penton, cited on the part of the plaintiff as a precedent of a writ of *346error on a judgment in an amicable action, is no authority; it is. an individual case and passed sub silewtio. It however shows the necessity of the writ, for the court there erred in their judgment because, though the auditors were not qualified till they had signed the award, yet the court confirmed the award.
Rule to show cause why the writ of error should not be quashed, discharged.1
Footnote by Bayard, “The note of this ease appears out of its order owing to the minutes of it having been mislaid.”