#### Harris *against*Bradshaw.

No action res upon a *re-part of referees*made pursuant to a Court of Common Pleas entered *by consent*of thte parties though tEe requffe^e fon'^account" nor was ¡t re-the statute, For it is not an *award,*and the eluded'by "the ence "entered by his consent, from alleging that it was not referable under the statute; and the Court might give judgment on the report, it being in a suit on a *contract;*though if ithad been an action jurisdiction*" refer^it"might be objected to.

THIS was an action of assumpsit, on the report of referees# The declaration stated a special contract between # . r the parties, by which the plaintiff sold to the defendant 310 pine trees, &c. for which the defendant was to give one dollar each, &c*; on which contract, the plaintiff, in *May,*1811, brought an action of assumpsit against the defendant, in the Court of Common Pleas of *Washington*county, in which defendant pleaded non assumpsit; that on the 9 th of *December,*1815, by the consent of the parties, a rule was entered in the Court of Common Pleas, ordering the cause to be referred to three referees named, and that they, or , _ , , . . ,. , ^ any two or them, report thereon 5 that the cause did not require the examination of a long account, nor was it referable under the statute; that the referees met and heard the parties, and two of them signed a report in favour of the plaintiff, for 93 dollars and 41 cents, whereby an action had accrued, &c. The case further stated, that on this report a judgment was entered in the Court of Common Pleas, which was afterwards vacated, but for what cause did not appear.

The case was submitted to the Court without argument.

Spencer, Ch. J.

delivered the opinion of the Court. This *s an action of *assumpsit*on the report of referees, or, as the plaintiff contends, on the award of arbitrators.

The plaintiff' insists, that as the original action did not involve the examination of long accounts, it was not referable under the statute, and that therefore it may be treated as a *27submission to arbitration, and then it becomes a proper subject of an action.

I am satisfied, that had the Court of Common Pleas given judgment for the plaintiff on the report, that such judgment would have been above all exception ; for although, strictly speaking, the case might not have required the examination of long accounts, the consent of the parties to a reference would have concluded them from making the objection, because, it being an action of *assumpsit,*there might have been long accounts. The reference was an admission that the case was within the act, and the Court of Common Pleas would never have listened to an objection to the contrary. Had the action been in *tort,*then the objection to the jurisdiction of the Court to refer the cause would have been open to either party, on a writ of error.

I do not think the plaintiff can treat the report as an award, and sue upon it. The differences between the parties were not referred, but the cause pending in Court was referred 5 and so the parties considered it, for the plaintiff entered a judgment. This judgment was vacated, upon what grounds we are not informed, but we must intend for good and valid reasons ; and it appears to me that the vacating the rule for judgment annulled the report. The Court of Common Pleas had jurisdiction, and their rule, unless itself vacated, put an end to the effect of the report.

This left the plaintiff where he was before, at liberty to go to trial in the original cause. We are, therefore, of opinion; that this action on the report cannot be sustained.

Judgment for the defendant.