DECEMBER TERM, 1860.

#### A. E. MYERS *v.*WILLIAM DANIELS.*

Where a cause was referred' to arbitrators, no pleas' haying been' entered', it was *held*that the reference was nothing more than a parol reference, and that the presiding Judge had no power to have it stricken out..

Where the defendant, in his answer, admitted that a cause was-referred, (no pleas having been entered,) and that the reference was stricken- out without notice to the other party, and the cause'was submitted ter a jury, and a judgment obtained against him without his knowledge, the Court refused to dissolve an injunction granted to restrain the collection of the same.

Appeal, from an interlocutory order, made at Spring Termy 1860, of Wilkes Court of Equity. OsboRNE, J., presiding..

*2This was a bill filed by A. E. Myers, to vacate and set aside a judgment rendered at Fall Term, 1859, of Iredell Superior Court, and to enjoin the collection of the same. Plaintiff alleges, in his bill, that in 1856, he sold to the defendant a valuable horse ; that shortly afterwards, said defendant alleged that plaintiff had practiced a fraud upon him in the trade, and brought suit against him to Fall Term, 1857, of Iredell Superior Court; that plaintiff,and defendant before return term of said writ, agreed to refer the cause to Jacob Fraley, Steptoe Bennet, Williamson Campbell, and Davidson Sharpe, with leave to choose an umpire; that at Fall Term, 1857, of said Court, one of defendant’s attorneys entered the reference on the docket, and shortly afterwards the referees met, and after selecting an umpire, decided the cause in favor of plaintiff, Myers, and filed their award in the office of the clerk of said court, in which they used the following language : “ We find all issues in favor of the defendant,” the present plaintiff. Plaintiff alleges further, that it was distinctly agreed between them, that the cause was “ taken out of court,” and the decision of said referees was to be final. Plaintiff further alleges, that when said referees decided the cause in his favor, defendant, Daniels, expressed himself sat-isfiedj and he distinctly understood that the suit was at an end; that he, Myers, shortly afterwards removed to Wilkes county, where he still resides. Plaintiff further states, in his bill, that at the Spring Term, 1858, of said Court, defendant’s counsel moved to set aside the award, because there were no “issues to bo found,” no pleas having been entered in the cause, and the award was stricken out; that at Fall Term, 1858, the reference was stricken out, on motion of the counsel of said Daniels, without any notice being given to plaintiff, Myers; that at Spring Term, 1859, a judgment by default and enquiry’ was entered against him, and at Fall Term, 1859, a jury was empannelled and a verdict rendered against him, in favor of Daniels, for $296.00, and execution was issued to collect the same. Plaintiff charges that defendant conducted these proceedings fraudulently, and that he knew *3nothing of the same same, until the sheriff applied to him for the money due on said execution.

Defendant admits the reference as set forth in the bill; admits that the referees met, examined the witnesses, and decided the cause in favor of Myers, but he denies that he considered their decision final; he admits that the reference was stricken out without any notice being given to plaintiff, Myers, and that the award was set aside without the knowledge of Myers, and that Myers never employed counsel in the cause. On the coming in of the answer, the defendant’s counsel moved to dissolve the injunction.

The defendant’s counsel insisted that the Court of Equity had no jurisdiction of this cause, for the reason, that the judgment, by default, was an office judgment, and if improperly obtained, was subject to revision at a subsequent term on motion ; that the award was informal, and was properly set aside by the presiding Judge; that defendant, Daniels, was not bound to give the plaintiff, Myers, notice of the proceeding in this cause, as it was his duty to employ counsel.

Plaintiff’s counsel insisted, that although the judgment, by default and enquiry, was an office judgment, the final judgment rendered by the Court, on the finding of the jury duly empannelled, under the instructions of the Court, was a regular judgment, and could not be set aside on motion; that no award could be a rule of court, unless the reference was made after the cause was put at issue ; that our courts cannot enforce the performance of an award by execution, except in those cases where, at common law, awards were enforced by. attachments for contempt; that at common law, an attachment was only allowed where the cause was referred in the nisi prius courts, (the pleas having been entered in the courts of Westminster). Plaintiff’s counsel insisted that the Court had no control of the reference ; and that the decision of the teferees was final-; that the defendant’s answer admitted facts, showing that unfair means were resorted to, to obtain the judgment in the cause.

The Court refused to dissolve the injunction, but ordered *4it to be continued to the bearing; from which the defendant appealed.

*Barber,*for the plaintiff.

*Boyclm,*for the defendant.

*

This cause was decided at Morganton, but was inadvertently taken away,. so that the Reporter could not get it.

MaNly, J.

This is an appeal from an interlocutory order continuing an injunction until the hearing.

We have considered the bill and answer, and concur with his Honor, the Judge below, in the propriety of the interlocutory order made by him. The equity of the bill, which has not been met by the answer, rests upon .the authorities of the case of *Simpson*v. *McBee,*3 Dev. 521, and the principles laid down in Billings on Awards, 230-31. Without deciding at this stage of the case, upon the merits of this equity, we think there is enough, not met by the answer, to send the case to a final hearing, with the injunction, in the mean time, continued.

This opinion will be certified to the Court of Equity, for „ Wilkes county, that it may proceed in the cause.

Pee CubiaM, Judgment affirmed.