#### Carma Parnell *v. W.*W. King and Jno. Yarborouh, (trespass.) Samuel Wilson *v.*Carma Parnell, (assumpsit.) Samuel Wilson *v. J.*W. P. M'Kagin, (process in trover.)

That a case pending in court has been referred to arbitration by the mere agreement of the parties, *and not by*a *rule of court,*constitutes an insurmountable objection, if presented to the Circuit Court, against the *confirmation*of the award.

There were several cases pending in the Court of Common Pleas, to wit: an action of *trespass*in which *Carma Parneil*was plaintiff, and *W. W. King*and *Jno. Yarborough,*defendants; an action of *assumpsit*in which *Samuel Wilson*was plaintiff, and said *Carma Parnell*defendant, and a *summary process*in trover, in which said *Samuel Wilson*was plaintiff and *J. W. P. M’Kagin*defendant. By agreement among the respective parties to these suits, and under a rule of court, they were referred to arbitration ; and as the result of the consideration of the arbitrators, of the matters submitted to them, they *awarded*that *Samuel Wilson*should pay to *Carma Parnell*the sum of two hundred and fifty-five dollars. Held, that in the state of the pleadings in the cases, the award could not be confirmed.

“ Arbitrators are not bound by technical rules in the formation of an award;” but notwithstanding this is the case as to the arbitrators themselves, still the court can not give effect to their award, as a judgment, if it violates the rules by which the court is governed in the rendition of its own judgments.

The court could not render judgment for a sum of money in favor of a defendant against the plaintiff, unless upon a *discount*— and where in an action of assumpsit, the arbitrators awarded a sum of money to be paid by the plaintiff to the defendant, in which no discount was pleaded or set up, the court refused to confirm the *award.*

*Before GANTT, J., at Darlington, Spring Term,*1839.

The report of his honor, the presiding judge, is as follows:

“ The above cases, involving questions, respecting the same subject matter or right, had been referred to .arbitration, and the arbitrators returned their award, which, on motion of Mr. Sims for that purpose, was confirmed by the court. The motion was *377opposed on the ground, *that such judgment is incompatible with, and repugnant to the pleadings and the records in the foregoing cases, and has the effect of substituting parties, and altering their position on the records.*

I did not consider that the arbitrators were bound by any technical rules in the formation of their award, and as no objection was raised against the correctness of the award made, other than as above, I saw no reason why it should not be made the judgment of the court, and ruled accordingly.”

G. W. & J. A. Dargan, in behalf of Samuel Wilson, appealed from the decision below, and now moved this court to set aside the order of the Circuit Court making the award of the arbitrators in these cases the judgment of the court; on the ground that such judgment is incompatible with, and repugnant to the pleadingsand the records in all the foregoing cases, and has the effect of substituting parties, and altering their position on the records.

*George W. Dargan,*for the motion.

These cases were submitted to an arbitration. The arbitrators awarded that Samuel Wilson should pay to Carma Parnell, $255. An order was made by the court, that this award should be made the judgment of the court. I have been anxious to see what form of judgment would be invented by the appellees counsel to suit the case, or rather cases; in what way these actions, each of them in a different form and between different parties, are to be amalgamated and blended together, so that an award, that Samuel Wilson should pay Carma Parnell $255, should become the judgment of the court in all of them. I am at a loss to conceive such a judgment. If the inventive ingenuity of the age can frame one, sanctioned by the courts of this State, it will form an era in the history and system of pleading. The order must be reversed. It is impossible that a common judgment can be rendered in the three different cases, each in a different form of action, and each between different parties. It is impossible that an award, that Samuel Wilson should pay C. Parnell $255, should be made a judgment of the court in a case of C. Parnell v. W. W. King and Yarborough, when the award was not against King and Yarborough. It is impossible that this award *378should be made the-judgment of the court in the case of Samuel Wilson v. M’Kagin, which was a summary process for trover. — ■ It cannot be made the judgment of the court in the case of Samuel Wilson v. C. Parnell, because the action was by Wilson against Parnell, and not by Parnell against Wilson. Parnell, on the rerecord and in the pleadings, claimed nothing of Wilson. Wilson claimed damages of Parnell and *not*Parnell of Wilson; *and how*can the court give a judgment for Parnell beyond the costs of suit. Such a judgment is unknown to our system of legal proceedings, except in the single case under our statute law, where in an action ex contractu, the defendant gives notice of a discount, which is quasi a cross action. The plea here is the general issue, (see copy of record,) and no notice of discount filed. What is a judgment ? It is the decision and sentence of the law, delivered by the court, between the parties to the suit, on the matter contained in the record and set forth in the pleadings, (Jacob. Die., title Judgment). Is there any thing in the record which would authorize the court to give a judgment in favor of Parnell v. Wilson? Is it pretended in the pleadings that he owes Parnell a cent, or that Parnell has sustained damages by him to the value of a cent ? How can the court then *proceed to give*judgment against him as plaintiff in the action, except for costs. The award, in fact, is not within the terms of the submission. What was submitted ?

We will pi’oceed to analyse the case: The case of Parnell v. King & Yarborough, was submitted; the matters contained in that action were submitted. It was an action for certain trespasses, alleged by the plaintiff to have been committed against him by the defendants, King & Yarborough. The arbitrators do not find that King & Yarborough committed the trespasses, or that Parnell has sustained damages from King & Yarborough. There was nothing of record *in*this case which involved Wilson’s acts or responsibilities, and therefore, so far as this case went, there was nothing submitted which could authorize the award against Wilson. — > There was no general reference of all matter's in dispute *between*the parties; and if there had, it could not be made a judgment of the court in the actions, except so far as the actions embraced the *379causes of the controversy in these cases. “The cases,” that is, the matters involved in the actions, were submitted. See 2 Sellon. Prac. 351, where it is said, “it is material to observe the distinction between a submission to arbitration of all matters in difference between the parties in the cause, and a reference of all matters in dispute in the cause between the parties; for the former being general, is not confined to the subject matter in the particular actions then depending, but will extend to cross demands between the parties, though not pleaded by way of set off; and the costs being to abide the event, will malte no difference; but the latter is confined solely to the matters in dispute in that particular case.— See Tidd’s Prac. 2 vol. 746. In Owen v. Hurd, 2 T. R. 643, a submission to arbitration between A. and B., the parties on record, having been made a rule of court, which award not having been made in due time, the dispute had been referred a second time, by B. and C., the real parties in the suit, nó attachpnent can issue against B. for not obeying the award made by the second arbitration, because the reference should be made by the parties on record, and even if it had, there should have been another rule to make the second submission a rule of court, and as the court had no jurisdiction in the case, they could not go into the merits, though B. consented to waive the objection. So in this case, the matters referred being the matters contained in the three suits, the arbitrators could not travel out of the record and go into a general investigation of all matters in dispute. Sellon, in his treatise on Practice, 356, says, “ to render an award legal and effectual, it should be made agreeable to the submission of the parties, it should not extend beyond it, neither to any matter not included in it, nor to any person not a party to it, nor should it be only parcel of the things submitted.” Parnell has by his action claimed nothing, except from King & Yarborough, and the award gives him damages against Wilson; and supposing that Wilson is the real party, and that an action may perhaps be sustained against him on this award, yet he not being a party in any case in which Parnell, on the state of the pleadings, could by possibility, according to the rules of pleading, have recovered against him damages, such award cannot be*380come the judgment of the court, and Parnell will be turned over to his action. The court, as in the case of Owen v. Hurd, not having jurisdiction, cannot go into the merits.

This order was made by the presiding judge, under the impression that there had been a rule of court referring the cases to arbitration ; but there was in fact no such rule. — (See certificate of clerk.) — The reference was made by the parties, by private arrangement among themselves. *In no case*will the court, when the submission has not been by an order of court, enforce the award either by attachment or by making it the judgment of the court; but in all such cases the court will leave the parties to their remedy by action, or bill in equity. — 1 Salk. 83, Tidds. Prac. 755, 760. See Sellon’s Prac., 2 vol. 343, et seq. Even when an award is made under rule of court, it is not the practice to make the award the judgment of the court; but simply to confirm it and enforce it by the process of attachment. See ibid.

*Sims,*contra.

CüRiA-, per O’Neall, J.

The ground taken in the argument, that these cases were referred to arbitration by the agreement of the parties, and not by rule of court, would have been, if presented to the Circuit Court an insurmountable objection to the confirmation of the award. But no such ground appears to have been then taken. Indeed, the order of confirmation recites a reference by rule, and the report of the judge below notices only a single ground on which the confirmation of the award was opposed. I do not, therefore, think that the party can now make that objection, but I agree with the appellant, that the award in the present state of the pleadings, in the cases, cannot be confirmed. In two of the cases, Wilson is the plaintiff, and in another, Parnell is the plaintiff against other defendants. In the cases to which Wilson is a party, one of them is a summary process against M’Kagin: in the other case, he is plaintiff, and Parnell is defendant: this last case is an action of assumpsit: the other is an action of trover. The other casé between Parnell and other defendants is an action *381of trespass. As to this case, and the summary process in trover, the award does not touch them, in terms, and of course cannot be made a judgment in them. In the action of assumpsit between Wilson and Parnell, there is no discount which would alone justify the court in giving a judgment for a sum of money in favor of the defendant. 1 agree with the judge below, that “ arbitrators are not bound by technical rules in the formation of their award; ” but notwithstanding this is the case, as to the arbitrators themselves, still the court cannot give effect to their award, as a judgment, if it violates the rules by which the court is governed in the rendition of its own judgments. It may be, and I think it is so, that Parnell will be entitled to recover the amount awarded in his favor by an action on the bond of Wilson. So, too, it may be, that by • pleading the award in bar of the cases in which Wilson is plaintiff, he may prevent a recovery in them. '

The motion to reverse the decision of the judge below, and to set aside the order, confirming the award, is granted; and the defendants, Parnell and M’Kagin, have leave, if they choose to do so, to plead puis darrein continuance the award in bar of the actions of Samuel Wilson v. Carma Parnell, and Samuel Wilson v. John W. P. M'Kagin.

Evans, Earle and Butler, Justices, concurred.