Daniel Shearer versus Jonathan Mooers, 19 Pick. 308

Shaw C. J; The Court are of opinion, that this award cannot be accepted. The referees have not proceeded, nor professed to proceed, upon the authority vested in them by the rule of this Court, nor to consider the matters thereby referred ; but they have considered only the matters embraced in the agreement in pais made and signed by the parties, and under the authority given them by that agreement. It stands upon the same footing, as if no rule of court had been entered into.

It may have been a very equitable agreement, and it may have constituted a mode of settling the rights of the parties, better adapted to their interests, than could be found in an action. But if the parties have any remedy upon it, we think it must be by action or by a bill for specific performance ; on which question, however, we give no opinion.

We are more particular in this, because it appears, that before the award was made, notice was given by one of the parties, that there had been surprise or mistake in drawing up the agreement, and as far as it was in his power, he revoked the authority of the referees under that agreement. But the Court are of opinion, that the referees not having acted under the authority given them by the rule, their award cannot be accepted as the basis of a judgment of the Court in this action.

In order not to be misunderstood, we would add, that this opinion is not to affect agreements and concessions, made by parties before referees, to operate by way of evidence, under the rule, bearing upon questions submitted by it, whether such agreements are in writing or verbal, nor will it operate as a prejudice to the accord, that the referees acted upon such agreements. In general they afford the most satisfactory evidence, as to matters of fact.

But it has been contended, that the agreement made before the referees, may now be made a rule of court, and the award under it received and accepted, conformably to the English practice. But we think this inadmissible, no such practice having ever prevailed here. The English practice is founded on the provisions of the St. 9 & 10 Will. 3, c. 15. That statute provides, that a submission in pais may be made a rule of any of the courts of Westminster Hall, upon the motion of either party and the affidavit of the subscribing witness, where an agreement to that effect is inserted in the instrument of submission.

But the statute has never been in force in this Commonwealth ; and if it were, as there is no such agreement in the instrument of submission in this case, we do not perceive how it could aid the defendant in support of his motion. Report not accepted.