
    Farmer vs. Frey.
    Where a case has been referred to arbitrators by consent of pa» • ties, and before the award is cohfinned, one of the parties die. the case abates, and it is too late to coniirm the award.
    This case was referred to arbitration by order of court,with consent of parties. The award was made and returned to the court, and the plaintiff was allowed until the succeeding court to show cause against its confirmation; and before the award was confirmed the defe ndant died. A motion was made to enter up judgment on the áward nunc pro tunc, but Huger, J. who tried the cause refused the motion on the ground that the death of the party before confirmation, abated the suit.
    
      Miller, for the motion.
    Williams, contra.
   Curia, per

Nott, J.

This is a new question, and has been submitted without argument or authority, and I haa| not been able to find any case having a direct applicatiiH fo it. My first impression was that the ordqr ought to have been granted. But a little reflection has led me to a different conclusion. They have no authority in the' courts to order rules of reference in cases pending before them. It is a practice introduced by the parties, to which the court lends its sanction, but it can only be done by consent; it is therefore only an act of the parties, and not of the court, and cannot be considered as any part of the record, until the award is returned and confirmed by the court. If either party dies in the mean time, the suit abates, and the award is gone. There is no record on which it can be founded, and although it may be good, as an award it cannot be made a judgment of the court. I am of opinion therefore, that the decision was correct, and the motion ought to be refused.

Motion refused.  