
    OTIS & CRAVEN v. NORTHROP.
    December 16, 1839.
    
      Exceptions to report of referees.
    
    Where on a reference under the act of the 21st March, 1806, the referees, through inadvertence, were not sworn or affirmed, and it not clearly appearing that the parties intended to dispense with such qualification, the report will be set aside.
    THIS was an amicable action to September term, 1839, No. 1359, entered on the following agreement, viz.:
    “ We, the subscribers, do hereby submit all matters in variance between us to the arbitrament of Samuel Copeland, James Leslie, and Benjamin M. Feltwell, whose award, or the award of any two of them, shall be final and conclusive, without exception or appeal, and we authorize judgment to be entered thereon in any court in the county of Philadelphia, at the expiration of twenty days from the date thereof.
    John Northrop, Jr.
    Otis & Craven.
    Signed and delivered ( W. M. Meredith, in the presence of t J. T. Biles.
    September 4, 1839.”
    The following award or report was made under the above submission, viz.:
    “ We, the undersigned, arbitrators appointed in the above case, do find for Otis & Craven, in the sum of fourteen hundred and four dollars and three cents; and so we award.
    S. Copeland,
    James Leslie,
    Benj. M. Feltwell.
    $1404 03.
    Philadelphia, October 17, 1839.”
    The following affidavit was also filed, viz.:
    “ William M. Meredith being duly sworn says, I was present, and saw John Northrop, &c. sign the annexed submission; his signature thereto is his own handwriting; I was present and saw Craven, now of the firm of Otis & Craven, sign the same; the signature “ Otis & Craven” thereto, is Ms handwriting. Isaac Otis, the other member of said firm, attended at least one meeting of the referees, and took part in and assented to their proceedings under said submission. I am a subscribing witness to said submission, and my name subscribed as such, is in my own handwriting.”
    The defendant filed exceptions to the report. The only one material to notice, was as follows, viz.;
    5th. Because the referees were not sworn or affirmed to try and determine the cause referred to them.”
    Depositions were read on behalf the defendant, showing that the arbitrators were not qualified, nor during the proceedings before them, was that circumstance adverted to.
    
      Graham, for the exception.
    
      Meredith, contra.
   Per Curiam.—

It seems to be conceded that this is not a submission under the act of 16th June, 1836, relating to reference, &c. because it does not contain an agreement that it should be made a rule of court. (See Fox v. Ealer, ante p. 169.) If it be under the act of 21st March, 1806, then the 5th exception must prevail. The third section of that act prescribes that the referees must be sworn or affirmed “ unless the same shall be dispensed with by the consent of the parties.” Now this dispensation intends an agreement of the parties to that effect, not an inadvertence, which in this instance was the case.

If the submission was at common law, the court have .nothing to do with the matter, as then an action should be brought on the award.

Report set aside.  