
    WILCOX AND GAMBLE v. SINGLETARY.
    Submission by one of several partners — award—consideration—order of non suit — directions to jury to find for defendant.
    One of several as partners may agree for bimself and fellows to submit a partnership controversy to arbitration, and bind the partnership.
    The consideration of a suit on an award is the agreement to submit.
    If the court order a non suit, it should enforce it, and not follow up the order of non suit with direction to the jury to find for the defendant. The non suit leaves the plaintiff at liberty to bring a new suit; the verdict and . judgment for the defendant changes the case, creates a bar against a new suit, and puts an end to the plaintiff’s right.
    Error to the Common Pleas. Wilcox and Gamble declared against Singletary in the Common Pleas, in assumpsit, upon a parol award to pay on request. Upon trial on non assumpsit, the plaintiffs proved the submission by Wilcox, for himself and Gamble, and the award; but gave no evidence of a request or demand of Singletary to comply with the award. The defendant moved the court for a non suit, for want of this proof, which the court ordered, and then directed the jury to find a verdict for the defendant, which they did, on which judgment was rendered.
    
      Humphrey, for the plaintiff in error, made two points:
    1. That one of several parties plaintiff may, for himself and his co-plaintiff, submit to arbitration, and bind all. He cited 3 Kent C. 8; Cowp. 816; 5 Vesey 846; Cald. on Arb. 12, 13; 1 Roll. Ab. 249; l. 35; 1 Com. Dig. 657; D. 1, 659, D. 2; 1 Lev. 139.
    2. It is unnecessary to make or state a special request on such award; Dunlap's Pr. 262; 1 John. Ca. 100; 10 East 359; 1 Ch. Pl. 324.
    
      
      Powers and P. Hitchcock, contra,
    cited 3 Kent C. 25; Kyd. on Awards, 279, 295.
   *BY THE COURT.

We think it very clear, that one of [421 several partners, joint .parties'to a suit, may lawfully contract to submit it to arbitrators, and bind his copartners. The consideration upon which a suit upon an award is sustained, is the contract of submission; 3 O. 513. The submission, therefore, in the case at bar, was good.

Whether the order for a non suit was fight or wrong, seems immaterial. If right, the order should have been enforced; if wrong, the evidence should have gone to the jury. In neither case had the court the power to direct the jury to find for the defendant. The order of non suit, if executed, would have left the parties free to commence a new suit; the verdict and judgment bars that right, and is erroneous. The judgment is reversed, and the case remanded back.

[Power of one partner to submit to arbitration; Fordyce v. Marks, 1 Rec. 257, 263 ; ib. 2 Rec. 392, 401.]  