#### Gunn *v.*Bowers.

A writ of error will lie where a case was referred to a referee, by agreement of the parties, under the Act of June 16, 1836, and the arbitrator made an award in favor of the plaintiff, which the court, on exceptions filed, set aside and entered judgment for defendant, directing the award to be returned to the arbitrator for correction. Such action of the court is a definitive judgment reviewable by the supreme court, as the court below exceeded its jurisdiction by qualifying the reversal of the award.

Jan. 19, 1889.

Rule to quash writ of error, No. 132, Jan. T., 1889, to review C. P. No. 3, Phila. Co., setting aside an award of an arbitrator in an action of assumpsit, by Bernard Gunn against H. W. Bowers, at March T., 1887, No. 148. Reported in 126 Pa. 552.

The petition to quash the writ was as follows :

“ Plaintiff below brought suit upon a disputed account, and the matters in controversy were referred to William Grew, Esq., a member of the Philadelphia bar, as arbitrator, under the Act of June 16, 1836. The arbitrator made an award in favor of the plaintiff for $287. Upon exceptions filed thereto, and upon examination of the figures shown by the evidence before the arbitrator and by him attached to his award, the court below was convinced that the arbitrator had made an error in his methods of calculation, and entered judgment on Oct. 13, 1888, in favor of the defendant for $129.91 and costs. By the specification of error filed, the judgment refered to is the error complained of.

“ But it also appears, by the record on file in this court, that, on Dec. 7, 1888, the court struck the said judgment from the record and entered a decree in the following language: ‘ And now, Dec. 7, 1888, it appearing that the .decree of this court, made Oct. 13, 1888, after argument of the exceptions filed to the award of the referee, ordering judgment to be entered in favor of the defendant and against plaintiff, in the sum of $129.91, was improvidently entered as to the form of the finding of the court, it is now ordered that said judgment be stricken off, and it is further ordered and decreed that the second exception of defendant to said award is sus*664tained, it plainly appearing to the court that defendant has overpaid said plaintiff to the amount of $112.96, and the said award is directed to be returned to said William Grew, Esq., arbitrator for amendment and correction in accordance herewith.’

Jan. 19, 1889.

“Wherefore, by the records now in this court, it appears there is no definitive judgment upon which this court may act.

“Wherefore, the defendant prays the said writ of error may be quashed.”

The writ of error in this case was taken Nov. 26, 1888. The exception to the report of the arbitrator, referred to in the above petition, is not given in the paper-book of the plaintiff in error.

*Frank*N *Christian,*for motion.

As to right of court to amend record after writ of error, 1 T. & H. Pr. 645, and 2 Ibid. 742 and 749, ed. of 1868; Crutcher *v.*Com., 6 Wh. 340; Chew’s Ap., 9 W. & S. 152.

The court will quash the writ where the record shows no final judgment: Straub *v.*Smith, 2 S. & R. 382.

*De Forrest Ballou,*contra.

Per Curiam,

Rule discharged.

Note. — It is suggested, by the reporter, in the report of this case on the merits, in 126 Pa. 552, that an assignment of error was filed other than that given in the paper-book of plaintiff in error, but an examination of the record in the supreme court fails to show the additional assignment.