White v. Shriver

The opinion of the Court was delivered by Sergeant, J.—No attempt has been made to sustain this judgment as properly entered by virtue of the acts of 1705 or 21st of March 1806, concerning amicable references by consent of parties. Nor indeed could the proceedings be supported under either of these acts. Not under the former, because there was no action pending or entered on the docket before the award was rendered, nor was the reference made a rule of court. The proceedings do not fall within the act of the 21st of March 1806, authorising an award to be taken to the prothonotary’s office and entered there, because the requisites of that act were not conformed to. The agreement to refer was not proved by a subscribing witness: nor was there any subscribing witness to the writing of the 23d of September 1831, choossing referees. It must, therefore, be treated as a reference at common law, in which judgment cannot be entered upon the award, but the party’s remedy is by action. It is contended by tire defendant in error that the judgment is [474] good under the twenty-eighth section of the act of the 24th of February 1806, authorising the pvothonotary of any court of record, “on the application of any person being the original holder (or assignee of such holder) of a note, bond or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person to confess judgment, to enter judgment against the person or persons who executed the same, for the amount which upon the face of the instrument ma]^ appear to be due, without the agency of an attorney, or declaration filed, &c.” But that act only permits the entry of a judgment on anote, bond or other instrument of writing, of a similar kind, binding' the party in the payment of some certain sum of money, orto do some definite thing. Whereas this is an agreement in the first place that the parties should meet together to liquidate the amount due, and if they could agree on the amount due, then writings to be entered into accordingly ; but if they could not agree, then'to choose referees to ascertain the amount due, on whose award judgment should be entered. It is, therefore, simply an agreement to refer by consent of parties, and an award thereon by the referees ; and is of a character altogether-distinct from the instruments of writing contemplated by this act. Judgment reversed.