
    Sutton against Horn.
    
      Tuesday, September 11.
    JN ERROR.
    Referees appoint erf under the Act of 1705,are not authorised to finrf the anrfsnbmually the law tothe report must seto justify" ^e entry^of uponit.
    ERROR to the Court of Common Pleas of Somerset county,
    This was an action of replevin, in which John Horn, the defendant in error was plaintiff below. Having been submjtted to reference by consent of both parties, under the Act of 1705, the referees reported, “it appeared to them that John Horn, who was duly appointed constable of Somerset town, did regularly depute William Cooper, as his deputy, and did thereupon remove with his family from the said town into the township of Somerset.* that after such his removal, viz. 29th November, 1816, William Cooper lived in a house, the property of Philip Austine. The referees therefore submit to the Court, that if the office of constable of Somerset town became vacant by the removal of John Horn as aforesaid, and the deputation of the said William Cooper ceased by reason thereof, then and in that case they found for the defendant; otherwise for the plaintiff, the sum of 14 dollars, 81 cents damages, with costs of suit, &c.” On this report the Court below entered judgment for the plaintiff.
    Alexander, for the plaintiff in error,
    now submitted that the ■referees had no right to find facts specially, and submit the law to the Court. The award must be final. And even if they had power to find facts, the facts found here are not sufficient, for the Court to draw any conclusion of law from them.
    Forward, contra,
    contended that by the Act of 1705, a report of referees is to be deemed and taken to be as available in law, as a verdict of twelve men, and the party shall have judgment. It is put on the footing of a verdict, and therefore the facts may be found specially, as a jury may find a special verdict, and judgment may be rendered thereon. The act moreover requires the Court to approve the report, which distinguishes it from an award at common law. For in giving or withholding such approval, the Court can investigate the law or the facts of the case.
   The opinion of the Court was delivered by

Tilghman, C. J.

By the Act of 1705, the award of the referees, “ being made according to the submission of the parties and approved of by the Court, and entered upon the record, shall have the same effect, and shall be deemed and taken to be as available in law, as a verdict given by twelve men, and the party to whom any sum of money shall be awarded to be paid, shall have judgment, &c.”

This award is wanting in an essential quality; it is not final, but instead of deciding the matter in dispute, refers the decision to the Court. This was contrary to the intent of the parties, who submitted the decision, not to the Court, but to the referees. No award should be approved of by the Court, but one which is in itself a perfect award. The plaintiff’s counsel have endeavoured to support this award by comParing it to a special verdict. They say, that judgmeht is to be entered on it, as on a verdict, and therefore judgment may be entered as on a special verdict, which finds the facts, and refers the law to the Court. But this is not the true construction of the Act of Assembly ; by which it was not intended to alter the nature of an award. The award must be good per se in order to authorise the Court to enter judgment on it. By the by, if this award were considered as a special verdict, it would not answer the plaintiff’s purpose, for supposing the constable who made the levy to have been a lawful officer, it is not found that any warrant or execution came to his hands authorising him to make the levy mentioned in the award.

It is the opinion of the Court, that the award should be set aside, and the judgment reversed.

Judgment reversed.  