
    [Lancaster,
    May 24, 1826.]
    GRATZ and others, Administrators of GRATZ, against PHILLIPS and others.
    IN ERROR.
    A writ of error does not lie on a decision of the court below, setting aside an award of referees, on exceptions founded both upon law and fact, though the award was set aside exclusively upon the points of law, without reference to the exceptions founded in fact.
    Whether an award shall be sent back to be corrected by the referees, is a matter which rests in the discretion of the court below, and in which this court has no right to control them. , ' '
    If several trustees, who have separately received money, agree to enter into an amicable reference, as defendants, and stipulate, “ that no advantage shall be taken as to the form of suit, or the liability of the parties in it,” an award against them jointly is good.
    ON a writ of error to the Court of Common Pleas of Lancaster county, it appeared that this was an amicable action, in which Simon, Joseph, and Jacob Gratz, administrators of Michael Gratz, deceased, were plaintiffs, and Levi and Leah Phillips, and Beliak Cohen, defendants, entered on a written agreement in the following words:
    “We agree, that the above action be entered in the Common Pleas of Lancaster county, of the Term of January, 1822; and we do hereby refer all matters unsettled and at variance between the parties, to. Caspar Shaffner, jr., John Reynolds, and Joseph Ogelby, or to a majority of them-; to meet at the house of Colonel Jacob Slough, in the city of Lancaster, at any time the parties shall agree upon, upon thirty days’'notice, and to make their award into the prothonotary’s office, with power to adjourn from time to time until the cause shall be decided. And it is agreed, that the arbitrators shall have no power in relation to any lands unsold at the time of instituting this suit, and that mo advantage shall be taken by either party as to the form of suit or the liability of the pai’ties in it, and that the award and judgment be final.¡¡¡^Witness our hands this 29th of January, 1822.”
    The arbitrators consented to act, met, artd' heard the parties, and after considering the arguments and proofs on each side, made the following award on the 8th of August, 1822:
    
      “Thursday, May 30th, 1822, the arbitrators met at the house of J. Slough; and adjourned till the 13th of June, 1822, when the arbitrators and parties met and proceeded in the cause. And, after hearing the parties, on the 8th of August, 1822, reported, that after an attentive hearing of the parties, their proofs^ and allegations, and after a careful examination of the evidence submitted to them, do now find for the plaintiffs the sum of five thousand two hundred and eleven dollars, and sixty-one cents, arising out of tha sales of land, as far as the accounts of sales for the same have been furnished to the arbitrators.
    “ They also find the sum of eighteen hundred and thirty-nine dollars, and eighty six cents, to be due to the plaintiffs, being the half.of the amount of the sales of land now outstanding, as far as the same have been exhibited to the arbitrators; which sum, of eighteen hundred and thirty-nine dollars, and eighty-six cents, to be paid to the plaintiffs, as the same shall come to the hands of the defendants.
    “The annexed paper, marked A., containing the amount of the sales of land, upon which the award is made, and exhibiting the amount of sales outstanding, the arbitrators desire may be considered as a part of their award.”
    The paper marked A. was appended to the award, but it is not necessary further to state its contents.
    To this award, the counsel for the defendants filed thirteen exceptions, of which eleven were on the facts and merits of the case, and the following two on matters of law.
    
      Eleventh Exception. Because the referees have erred in giving a general award against all the defendants, when in fact Levi Phillips was the only defendant who received any of the sums stated; and there was no evidence before them that any of the other defendants received any part thereof.
    
      Thirteenth Exception. Because the award is neither certain nor final.
    The Court of Common Pleas, after argument, delivered the opinion which-follows, and set aside the award; and on this decision, the cause was brought by writ of error before this court.
    Opinion. We have carefully considered all the exceptions filed to the award in this case, and the documents referred to in- the argument. From the view which we have taken of it, it is' only necessary to deliver an opinion upon the eleventh and last exceptions, which appear to be fatal to the confirmation of this award. There is no point better settled, than that an award should be certain and final.
    
      The"arbitrators to whom this cause was referred, have found for the plaintiffs the sum of five thousand two hundred and eleven dollars,, and sixty-one cents, arising out of the moneys actually received for the sales of lands,-as far as the accounts of sales for the same have been furnished to the arbitrators. They also find the sum of eighteen hundred and thirty-nine dollars, and eighty-six cents, to be due to the plaintiffs, being the half of the amount of sales of land now outstanding, as far as the same have been exhibited to the arbitrators; which sum of eighteen hundred and thirty-nine dollars, and eighty-six cents, to be paid t-o the plaintiffs as the same shall come to the hands of the defendants. A paper is annexed to the record, marked A., containing an account of the sales of land upon which the award is made, and exhibiting the amount of sales outstanding, which the arbitrators desire- may be considered a part of their award. With respect to the sum of eighteen hundred and thirty-nine dollars, and eighty-six cents, all is uncertain and inconclusive. It relates to moneys to be collected in future. No time is fixed at which the defendants become responsible — no mode determined of ascertaining when the moneys are received, or what amount may be paid in; nor have the plaintiffs any remedy for enforcing the payment of What may he collected.
    
    We cannot give judgment for the five thousand two hundred and eleven dollars, and sixty-one cents, because it is admitted that there are errors, which will reduce that sum to a lower amount.
    But admitting that the award may be confirmed as to the sum of five thousand two hundred and eleven dollars, and sixty-one cents, and rejecting the rest, it appears to us, that there ' is no removing the. difficulty occasioned by the eleventh exception, viz. that the referees have erred in giving a.general award against all the defendants, when there was only one who received any of the sums stated; and there was no evidence before them that cither of the other defendants received any part of them.
    
    We have considered the agreement under which the reference took place, and have given full weight to the arguments founded upon that part of it, which says, that no advantage shall-be taken by either party, as to the form of suit or the liability of the parties, and are of opinion, that whatever might be the motive for introducing this stipulation, it will by no means admit of such a construction as to render liable either of the defendants to the payment of any money which it may blearly appear he has never received, arid for which in law he is not responsible.
    
    
      Beliah Cohen received no part of the money in dispute, and yet there is no distinction in the award, between her and the other defendants. In this, therefore, there is manifest error, and the award must be set aside.
    
      June 10, 1824. — Judgment by the court, that the award be set ■aside.
    
      Before the counsel for the plaintiffs in error began their argument, Rogers moved to quash the writ of error, because no final judgment was given in the court below; upon which the court desired the counsel for the plaintiffs in error to speak, both to the exceptions to the award, and to the motion to quash the writ of error.
    
      Montgomery and Norris, for the plaintiffs in error.
    1. A writ of error undoubtedly lies in a case like this. The court gave a final judgment on the award. Their authority was derived from the act of 170ff, which by long practice has been extended greatly beyond its letter, and under which all kinds of subjects and every variety of action may be referred. There is a great difference between a reference of an action pending, and an agreement, like the one under consideration, to enter an amicable action, in which case the parties are in court, only for the purpose of having their agreement carried into effect, by a trial by arbitrators, without adopting any particular form of action. A judgment setting aside the award of arbitrators, made under such circumstances, is therefore like a decision arresting a judgment, on which a writ of error lies. An agreement to enter an amicable aetion, with a view to a decision by arbitrators, cannot be converted into a trial by jury, nor can it be subjected to the rules which govern ordinary cases. If the cause be remitted, the plaintiffs cannot obtain a judgment against the defendants by default, on their not complying with a rule to plead. By the judgment that the award bfe set aside, exclusively on matters of law, an end was made of the ease. An award under the act of 1705, does not resemble a verdict. It need not be as formal, and may be carried much further. It may be enforced by judgment or attachment, as the case may require. A balance may be found for the defendant, which, being recorded, a scire facias may issue upon it. Suppose a balance to be found in favour of the defendant, and set aside by the court; if a writ of error does not lie upon their decision, the defendant is injured and without remedy, for the plaintiff may discontinue his action. But even if the cause should come to trial by jury, the plaintiffs must lose the advantage of one main part of the agreement, viz. that the defendants should be jointly liable for what had been received by either of them. diet of 1705, I'Sm. L. 50. Ebersoll v. Krug, 3 Binn. 528. 2 Serg. & Raivle, 363. 3 Yeates, 479. 3 Binn. 432. Jlddisan, 119,121. 4 Serg. & Rawls, 231. 12 Johns. 31. Massey v. Thomas, 6 Binn. 333. Galbreath v. Coll, 4 Yeaies, 551. 1 Dali. 164. diet of the 28th of March, 1806, 4 Sni. L. 326. 3 Bl. 292. 3 Johns. Ch. Rep.-64.
    2. The exceptions, both as to law.and fact, were before the Court of Common Pleas, who examined parol evidence, and then decided upon the eleventh and thirteenth exceptions alone, which were purely matters of law. The conclusion therefore must be, that the court did not think the award could be impeached on aiiy other points. In considering these exceptions, tin's court will apply the rule, that a liberal construction is to be given to awards, in -order to support them. The opinion of the Court of Common Pleas, that the award was bad, because it charged Mrs. Cohen with money, not received by her but by Levi Phillips, was erroneous. Joseph Simon was trustee for the plaintiffs for certain lands, and by his will delegated his power to Levi Phillips, and his daughter, the wife, of Levi Phillips, and to Mrs. Cohen. Simon could not, by his will, divide the responsibility of his executors. They were all liable,'jointly, for the money received by any of-them, just as Simon himself would have been answerable for all the money received by him, if he had received any. They made, together one trustee, answerable for each other’s acts. The agreement was entered into upon the principle of joint liability. The object was to make an end of long protracted disputes, which experience had shown could be done only by arbitration, and an agreement was entered into by which all form was waived, and the defendants expressly consented to be liable for the money received by each other.- If the cause should be remitted for trial to the Court of Common Pleas, the plaintiffs could not, on a declaration for money had and received, recover against each of the defendants what each had received-. They would recover against them jointly, or not at all. Where two trustees join in the sale of land, and a receipt for the money is given by both, both are (prima facie, at least,) liable, though the money be received by only one. 2 Johns. Ch. Pep. 560. Buckley v. Ellmaker, 13 Serg. & Rawle, 71. Kyd on Awards, 28, 35.
    3. The opinion of the court, that the award was not certain and final, is likewise erroneous. There are upon the face of the award two errors, which always were and still are admitted; one of ten dollars in the addition, and another of two hundred and two dollars and thirty-three <eents, in the charge of interest. These, however, are merely clerical errors, as appears by the account accompanying the award. They are errors which may be corrected, and do not vitiate the award in tolo. 4 Serg. & Rawle, 322, 328. 4 Yeates, 336. 5 Serg. & Rawle,-51, 55, 56, 6 Binn. 36. 2 Johns. Ch. Rep. 551. A Johns. Ch. Rep. 405. Kyd on Awards, 194,198, 201, 202, 205. The circumstance that no time was fixed for the collection and payment of the sum of eighteen hundred and thirty-nine dollars and thirty-six cents, is no objection to the award, because every thing was reduced to certainty by the annexed account, stating each tract sold, the money received on account of each, and consequently the balance due upon each. Of this, payment can.be enforced, at the proper times, either by attachment, scire facias, or action, on the case. It is, in some degree, analogous to an award ordering a stay of execution until something be done by the plaintiffs, which is good. 3 Yeates, 149. But, even if this part of the award was bad3 as respects the sum, of five thousand two hundred and eleven dollars, and sixty-one cents, it was beyond a doubt certain and final, and this is not so connected with the other sum, as that judgment might not have been given for one without the other. If it be objected, that the award is not final, because it does not settle all accounts between the parties, the answer is, the law is now settled, that it is sufficient if the referees decide upon all the accounts which are'brought before them.
    
      Sogers, for the defendants in error.
    1. No precedent can be produced of a writ of error in a case ■like this. If the award had been confirmed and judgment entered for the plaintiffs, error would have lain upon the judgment; but not so where the award is set aside. By the act of 170.5, 1 Sm. £i. 50, the award is to be approved by the court, before judgment can be entered upon it, and, when approved, it has the effect of a verdict. Exceptions to an award of .referees, is an appeal to the discretion of the court, and resembles a motion for a new trial. 7 Serg. & Rawle, 285. This case, then, stands as if there had been ■a verdict which the court set aside; and no writ of error lies where the' court orders a new trial. If a new trial is moved for on eleven objections founded on fact and two on law, and it is ordered on one •of the points of law, no writ of error lies, because the action is not ended. 1 Say, 27. Arch. Pr. 208. To. be the basis of a writ of error, a judgment must be final and not interlocutory. The only exception to this rule is the case of real actions, where, on default, the plaintiff recovers the land at common law, and there is a statute which gives damages. In such case, error lies on the judgment by default. The setting aside the award was in the nature ■of an interlocutory judgment. It did not make an end of the cause, and consequently was not the subject of a writ of error. The plaintiffs may file a declaration, and lay the defendants under a rule to plead; and if a plea be entered, the whole case may be brought •to trial before.a jury. In many cases a writ of error lies upon the decision of the court in one way, where it does not, upon a decision the other way; and whether or not the decision puts an end to the ease, is the criterion. It lies upon an order of the Common Pleas, dismissing an appeal from a justice of the peace; but if the appeal is sustained, error does not lie until the end of the suit. 3 Binn. 432. The Common Pleas first struck-off an appeal, and then reinstated it: a writ of error does not lie upon the order for re-in-statement. 2 Serg. & Rawle, 382. It lies on an order to arrest a judgment, 2 Serg. & Rawle, 390, 394; but not on an order setting a judgment aside. 5 Serg. & Rawle, 516. It lies on a decision sustaining a demurrer, but not on a decision against it. It lies on a judgment of nonsuit; secus on a refusal to nonsuit. 2 Johns. 9. 6 Johns. 110. 7 Johns. 373. It does not lie on an order of court for the discharge of a jury. Eichelberger v. Nicholson, 1 Serg. & Rawle, 430. There are eleven exceptions founded in fact, which appear upon the record. If the court below had set aside the award upon any of these, this court would not sustain a writ of error, because it cannot receive any evidence which is not in the record. The court below gave no opinion upon the exceptions in fact, though that court was competent to examine the evidence in relation to them; and now the plaintiffs ask this court to give judgment on the award, which is equivalent to asking them to decide against the defendants on the eleven exceptions in fact, without examining into their merits, and without possessing the power to do so. They ask, too, to have a judgment upon the award for five thousand two hundred and eleven dollars, and sixty-one cents, when it not only appears from the record that so much is not due, but when the defendants distinctly admit that it is not due. This admission appears from the opinion of the court below filed at the request of the plaintiffs. It is admitted that there are errors which would reduce that sum to a lower amount; but what would be the amount, or on which of the defendants’ exceptions the admission is founded does not appear. The error with respect to a charge of interest for thirteen instead of three years, was not a clerical error; but one of judgment. An award may be sent back for informality, but otherwise it cannot be sent back without the consent of parties, or perhaps the request of the referees. Shaw V. Pearce, 4 Binn. 486.' 4 Yeates, 336. If this court does not give judgment for the whole sum of five thousand two hundred and eleven dollars, and sixty-one cents, which it is admitted would be wrong; for what sum can it give judgment? No satisfactory answer can be given to the question,
    2. The court below has said that Mrs. Cohen received no part of the money, and' this must be taken to be the fact. In Pennsylvania, courts inquire into matters of fact on exceptions to an award of referees. But a court of error has no power to do so. We must therefore receive for fact what is stated in the record. 1 Ball. 315. 1 Yeates, 353. 2 Yeates, 513. 7 Serg. & Eawle, 285. If Mrs. Cohen received none of the money, she is answerable for none; for one trustee is not answerable for money received by another, except under very special circumstances; and whether or not such circumstances existed, is matter of fact, on which the court below has decided in favour of Mrs. Cohen. 3 Fonb. 180. 1 P. Wins. 81, 242. 2 Vern. 750. dlmb. 219. 21 Vin. 534. 1 Ball. 311. This question is, as respects Mrs. Cohen, extremely important. The award subjects her personally to the whole amount found due from the defendants, when she never received any part of it. The agreement to enter this suit, never contemplated such joint liability, and it is a monstrous perversion of his intention so to construe it. The object in introducing the clause under consideration, was to remove a difficulty as to a suit against Leah Phillips, the wife of Levi Phillips; because a married woman is not bound by a submission to arbitration. Kyd on Awards, 35. The true construction of the agreement is,-that the defendants were iiss.= ble severally for what each had' réeeived, and that the plaintiffs might recover accordingly; and this the defendants are willing to abide by, if the cause should go to trial again.
    3. The award was not certain and final. The submission was under the act of 1705, and the award ought to be so certain that judgment may be entered on it. It is, that a certain sum, viz. five thousand two hundred and eleven dollars, and sixty-one cents, is due to the plaintiffs, so far as the account of sales have been furnished to the arbitrators; so that the defendants would be left exposed to a future action by the plaintiffs. It did not make an end of all matters unsettled and in variance between them. But there is another part of the award on which there is no possibility of entering judgment. It is that part of it which awards to the plaintiffs eighteen hundred and thirty-nine dollars, and eighty-six cents, to be paid when collected by the defendants. The referees had no right to charge the defendants with .money they had not received, and particularly when it could not be known by which of them it would be received. The award could not be enforced; for by the act of 1705, the plaintiffs cannot have judgment ior part and an attachment for part.
   The opinion of the court was delivered by

Tilghman, C. J.

From the nature of this case, the plaintiffs in error have considerable difficulties to encounter. This court is asked, to reverse the judgment of the Court of Common Pleas, and to affirm the award. Now it is not denied, that the Court of Common Pleas had a right to set aside the award* not only because it was against law, but even on consideration of the merits of the ease. The act of 1705, under which this reference was made, gives to the award the effect of a verdict, provided it be approved of by the court, and the court have always exercised the right of examining the award and setting it aside, not only for errors in law, but for manifest errors in fact; If it is set aside, on a consideration of facts, the-decision cannot be called in question on a writ of error, because the court of error have not the facts before them. It is true, that, in the present instance, the opinion of the Court of Common Pleas seems to have been founded principally ■on errors in law, specified in the eleventh and thirteenth exceptions. But it does not rest altogether on piatter of law, because, in the opinion of the court, placed on the -record, it is expressly said, that they cannot give judgment for the sum awarded, because it is admitted that there are errors, which will reduce that sum to a lower amount. That being the ease, it is clear, that independently of the- errors in law pointed out in the eleventh and thirteenth exceptions, there were errors in fact, affecting the merits of the case, which rendered it necessary to set aside the award. Besides, there are eleven other exceptions', founded on the merits of the case, on which no decision has been given, and should this Court affirm the awárd, the defendants will be deprived of the benefit of those exceptions, on which the Court of Common Pleas have never given an opinion, and on which it is impossible for this court to form ah opinion, because the evidence is not, and never can be legally brought before them. It was contended by the counsel for the plaintiffs, that the errors in fact, which the Court ©f Common Pleas say were confessed, were no more than clerical errors, and that the award ought to have been sent back to the referees to correct them. But it does not appear to us, that they were clerical errors, and as to sending the award back, to be corrected by the reférees, that is a matter which must rest in the discretion of the Court of Common Pleas, and in which we have no right to control them. I cannot perceive, therefore, any safe ground for reversing the judgment by which this award was set aside. But still, there is one point of law, on which the Court of Common Pleas gave an opinion, and of which it is of importance to the par», ties that the opinion of this court also should be expressed, because the same point may hereafter occur, I allude to the point specified in the eleventh exception, viz. that the referees have erred in giving a general award against all the defendants, when, in fact, Levi Phillips was the only defendant who received any of the sums stated; and there was no evidence before them that any of the other defendants received any part thereof.” The opinion of the Court of Common Pleas was, that upon the true construction of the agreement for entering the amicable action, each defendant was responsible for the money received by him, or her, and no-more. I am. of opinion that this is not the meaning of the agreement. The words are, that no advantage shall be taken, by either party, as to the form of suit, or the liability of the parties in it.” It seems, then, the parties were aware, that without this agreement, there would have been difficulty in supporting the plaintiffs’ claim, in this form of action. Now, the form of action is a joint action against three defendants, in which a joint judgment must be given. It would be error to give judgment against one defendant for a sum of money, and against another for another sum. The defendants were executors and trustees under the will of Joseph Simon. Large sums of money were to be collected for lands sold, and on general principles one trustee would not be responsible for collections made by another. These parties had been at law for some.time, and being weary of the contest, they were anxious to put an end to it by a reference. To simplify the proceedings, it was agreed that one suit should be brought against the three defendants, and the liability of both parties to the performance of the award to be made by the referees, was confessed. It is said to be unreasonable that one trustee should be responsible for money received by another. It is so, unless it be so agreed, and then it is not unreasonable. ’ In the present instance, it may be presumed, that the defendants, who agreed to be jointly responsible, bad an understanding between themselves by which justice would be done. That was their affair? but the plaintiffs had nothing to do with it. The only question between the plaintiffs and defendants is, whether the defendants did not agree to-make themselves jointly responsible in this action; and, that they did so, appears to me so plain that. I am at. a loss for an argument to prove it. The words speak for themselves. A joint action is to be instituted against three persons, who expressly stipulate “ that no advantage shall be taken either as to the form of suit, or their liability.” I am of opinion, therefore, that the referees were right in awarding, that the sum due to the plaintiffs should be paid by the three defendants jointly; and the construction given to the agreement, by the Court of Common Pleas, was erroneous. But in setting aside the award, I can perceive no error, because it is manifest that the sum awarded in favour of the plaintiffs was too great, and the award could not have been confirmed without injustice.  