McFarlane v. Cushman

Dixon, C. J. There is no error in the proceedings or judgment. The former judgment is no bar, because the condition of the bond had not then been complied with. The plaintiff had not then produced before the referee the evidence upon which the referee was authorized to act, and there was no money due to the plaintiff by the terms of the bond itself. McFarlane v. Cushman, 19 Wis., 357. It was an action prematurely instituted, and judgment was rendered against the plaintiff for that reason. Bull v. Hopkins, 7 Johns., 22. There was no error in rejecting the judgment roll and record in the case of Lilburn v. Milne, and the other evidence offered by the defendant, because the defendant had, by the condition of his bond, fixed the kind of evidence upon which the referee was to act, and his decision was final. The only question open was as to whether the condition had been performed by the production before the referee of the evidence called for. Of this we think there can be no doubt. The abstract produced was clearly such as the parties intended, and fully justified the action of .the referee. The submission to the referee, conceding it to have been in the nature of a submission to an arbitrator, and as such revocable, was not revoked. A submission by deed can be revoked only by deed. Brown v. Leavitt, 26 Me., 251; Van Ant [405] werp v. Stewart, 8 Johns., 125. The attempted revocation was by the attorney, and by parol. By the Court. — Judgment affirmed.