
    Giles N. Smith, v. Robert Thomson.
    Where, in the form of an order of the Court, parties agree to submit their dispute to arbitration, as to matters not embraced by the action pending, their agreement has no more efficacy to oust the jurisdiction of the Court over another suit involving those matters, than an agreement made out of the Court. Vide, Percival & Herbemont, 1 M’Mul., 59. Nor, if the arbitration ordered become impossible, is there any thing in the order itself which will preclude another action.
    Tried before Mr. Justice Evans, at Union, Spring Term, 1847.
    This was an action on an account for money loaned. It appeared on the trial, that Smith had loaned Thomson two hundred dollars or more. To secure the payment, a negro boy named Ned was put in pledge, on an agreement that his hire was to pay the interest. The boy was twelve, thirteen, or fourteen years old, and one witness said he thought his hire worth at the time #25. Smith was a schoolmaster, and had no means of employing the boy profitably. It was also proved, that Smith paid an execution against Thomson for about #50, and he had in possession a note for #2, which was not assigned to him, nor was there any proof he had paid it. It was doubtful, irom the evidence, whether Thomson had not given Smith the money to pay the execution. After the negro had been in Smith’s possession several years, Thomson tendered him #200, and demanded the negro. Smith claimed more, and refused to give him up. Thomson then sued Smith in trover. At the Spring Court in 1842, a special order was made as a condition of a continuance, that Smith should immediately deliver up the negro, and that the matters of account should be referred to the arbitrament of Mr. Pratt and Mr. McClure, whose award should be final. It did not appear that any movement had been made in the arbitration on either side. In 1843, Smith assigned this, with other debts, to McClure, one of the arbitrators, lor whose benefit this action was brought. In 1844, Smith was arrested on a ca. sa. and rendered a schedule, in which this debt of Thomson’s was not included.
    This action was commenced in September, 1845.
    The presiding Judge refused a non-suit, because the action of Thomson against Smith was trover, and did not perceive how this demand could well be involved in it, and because the arbitration had become impossible by the assignment of the debt to McClure.
    He charged the jury, that if the hire was, in the estimation of the parties, worth more than the interest of the money, and it was therefore a mere cover to enable Cmith to get usurious interest, Smith forfeited all right to interest; and whatever he received in negro hire should be deducted from the principal of debt—but if on the contrary, they considered the hire as equal in value to the interest of the money, lb.cn the contract was not usurious. The circumstance that the negro remained several years in Smith’s possession, during which his hire greatly exceeded the interest, would not make the contract usurious, unless it was so at the beginning, as Thomson could, at any time, by repaying the money, have the negro back.
    He directed them if the sum tendered, 8200, was all that the negro was pledged for, then Smith was not entitled to interest after that time, and that they should allow the defendant hire by way of discount, from the time of the tender, to the time when the negro was given up.
    They found a verdict for the plaintiff. He inferred from the amount, that they decided the contract was not usurious, allowed no interest from the day of the tender, and gave the defendant hire for the negro afterwards as a discount, in conformity with the charge. He supposed no inference against the plaintiff’s demand could arise from his not including it in his schedule, as he had before assigned the debt to McClure.
    The defendant appealed, and moved the Court of Appeals for anon-suit and for a new trial, on the following grounds, viz:
    1st. For a non-suit—Because, from the evidence offered on the part of the plaintiff, he had no right to sue at the time this action was brought, as the order of reference to arbitration in the case of Robert Thomson v. Giles N. Smith, was a bar to this suit.
    For a new trial—1st. Because the Court should have charged the jury that the contract, under which the boy Ned went into the possession of the plaintiff, was usurious and void.
    
      2d. Because the demand of the plaintiff was fully paid, as appears from his schedule offered in evidence, wherein this demand was not included.
    3d. Because the verdict is contrary to law and evidence.
    Goudelocic, for the motion.
   Wardlaw J.

delivered the opinion of the Court.

The only ground of appeal much relied on here, is the first, for a non-suit. In addition to what appears in the report, it appears to this Court, that after the order, the negro was delivered by Smith to Thomson, and somehow the action of trover went off the docket. The order directed that the mailers of account should be referred to the arbitrators, and that cither party in whose favor the balance was found, might have execution against the other, to be awarded by a Judge at chambers or in Court. There could be no discount in an action of trover, nor any recovery b)T the defendant against tnc plaintiff. Regularly matters of account, beyond hire and interest, were involved in the action of trover only to this extent, that the defendant there was not guilty, unless the money, for which the negro was pledged, had been paid or tendered to him. In the form of an order, the parties by consent expressed their agreement to submit their whole dispute to arbitrators: and in this form, as to matters not embraced by the action pending, their agreement had no more efficacy to oust the jurisdiction of the Court over another suit involving those matters, than an agreement made out of Court, (tice Pcrcival and Hcrbemont, 1 M’Mul., 59.) If the order be looked upon as the act of the Court, and one party disregarded the terms imposed upon him as a condition, the remedy of the other was to claim forfeiture of the advantage to which the condition was annexed, or by rule and attachment, to enforce obedience to the order of the Court. Besides then, that one of the arbitrators became incompetent, that Thomson took steps towards the reference no more than Smith, and that the former suit seems to be discontinued, this Court perceives in the order itself nothing that would preclude the present action.

The motion is therefore dismissed.  