#### Samuel P. Simpson *v.*Vardy McBee.

An agreement between the parties to a cause, made after the issuing, but before the return of the writ, referring the suit to arbitration, and making the submission a rule of court, does not authorise the entry of a judgment upon an award filed at the return day of the writ.

This was an action on the case, for slanderous words spoken of the plaintiff, by the defendant.

The writ was issued on the 27th of August, .1831, returnable to the ensuing term of Lincoln Superior Court. The defendant accepted service of. the writ on the 31st of that month, and on the 1st of September following, the parties entered into an agreement in writing, whereby the matter in controversy was referred to the arbi*532trament of two persons, “whose award made as above, shall he a rule of court.” The arbitrators made their award on the 22d of October following, before the return day of the writ; and on the Monday of the ensuing Superior Court of Lincoln, it was handed to the clerk, when the defendant filed exceptions to it, and pleaded to the action. On the last Fall Circuit, Swain, Judge, overruled the exceptions, and entered judgment according to the award, from which the defendant appealed.

*W. A.*Graham, for the defendant,

contended, that the agreement to submit, was a matter in *pais*— that the submission could not be a rule of court, unless made after the cause was in court, and that judgment could not be entered upon the award, or an attachment issue for not performing it, the only remedy being by an action on the agreement. He cited *Tidd’s Practical Forms*148.

*Badger,*contra,

argued, that the issuing of the writ constituted the *Us pendens,*and that at common law, before the statute of *Will. 3,*either party had a right to have an agreement of this kind, made a rule of court.— He cited *Tidd’s Practice 75.*

Daniel, Judge,

after stating the case as above, proceeded : The agreement of the parties, out of court, set forth in the submission, that the award should be a rule of court, did not make the rule. And although the agreement was made during a *Us pendens,*yet no attachment could have issued, according *to the*principles of the common law, against the defendant, for a violation of that agreement. A rule of court to stand to a submission and award, was, according to the common law, a rule entered in some one of the courts at Westminster, where the record and pleadings in the cause were made up. A party who consented to have such a rule entered, and disobeyed it afterwards, was. subject to an attachment for a contempt. *We*have, after diligent search, been unable to find any authority, estabishing the principle, that an agreement of the parties pending a suit, to submit to arbitration, and that the submission and award should be a rule of court, .was in fact, such a rule, *533as by tho principles of the common law would authorize an attachment to issue for its violation. In this state, it is the practice to enter judgment according to the award, in those cases, in which, by the rules of the common law in England, an attachment would have been granted, for a disobedience of á rule of court, to stand to the submission and award. We therefore, think that the Superior Court had not power to enter the judgment, which was rendered in this case. The statute *p rx*i _ rr,.,, „ „ „ . , . . . , , oi 9 aim 10 *Will. 3 c*15 is not in lorce in tins state*— The judgment might have stood perhaps, according to tllC provisions ot that statute. As there was not such a rule of court entered in this case as would have authorized an attachment at common law, and the statute of *Will.*3. not being in force here, we arc compelled to set aside the judgment, and award a *procedendo.*

In tins state, judg-^ards^^ where by the rule jaWj would issue for theirnon-performance.

The statute of jng references, is not in force here,

Per Curiam. — Judgment reversed.