
    Jewell and McKee vs. Blankenship.
    Nashville,
    December, 1837.
    Where parties to a suit submit it and the cause of dispute involved in it to arbitration, and the submission is not made a rule of court, such submission operates as a discontinuance of the suit.
    .This was an action commenced in the circuit court of Wilson county. After the cause had been some time pending, it was submitted to arbitrators. No rule of court was made for that purpose. The defendants below pleaded pais dar-rein continuance, that the plaintiff below, and Jewell for himself and McKee by their bond, submitted the matter in dispute, then pending in court, to five disinterested neighbors. The plaintiff replied, that the arbitrators had taken the case under consideration, and refused to decide it. To this replication defendants demurred. The court overruled the de* murrer. The defendants then moved a discontinuance of the suit, which motion was also overruled. The plea shows that there was no time limited in which an award was to be made.
    
      J. S. Yerger, for plaintiffs in error.
    1. If a submission of a cause then pending be made by bond, and the proviso limits no time in which the award is to be made, the submission may be pleaded in bar of the further prosecution of the suit. Kyd on Awards, 96, 389: Do. 383, 387, 388: Watson on Arb. 147: Laws on Plead. 493: 2 Esp. Rep. 504: 9 East. 497: 1 Chitty on Plead. 651: 2 Do. 469: 13 Wend. 293.
    2. The submission to arbitrators is a discontinuance of the cause, and may be so relied on by the defendant’s plea. It is a voluntary withdrawal of the suit from the jurisdiction of the court. 13 Wend. Rep. 293: 1 John. Rep. 315: 18 Do. 22.
    3. Though McKee was not a party to the bond, yet be may plead the submission of his co-defendant'as an agreement in bar of the action. Kyd on Awards, 388, 389: 1 Young and Jarvis, 19: 1 Harrison’s Dig. 121.
    4. If after the reference the arbitrators refuse to decide, this does not prevent the discontinuance, it is the submission t}lal discontinues the suit and not the award. The refusal of a!'^trators does not 1,ev°Iie the submission, if the submission be by bond, by a deed also must it be revoked. 5 gar & ^Id. 507-, g J0[ln. Rep. 125: 2 Pertersdorf’s Abr. marg. 121: Kyd on Awards, 30, 31: Watson on Arb. 16, 17: 16 John. 205: 1 Cowen, 335: 3 Hay. Rep. 42.
    If the submission discontinues the suit, a revocation the most formal cannot reinstate it in court. 13 Wend. Rep. 293.
    
      R. L. Carulhers and R. M. Burton, for defendants,
    cited and relied on /'illiot vs. Wilkerson, 8 Yer. Rep. 411.
   Reese, J.

delivered the opinion of the court.

The only question presented by the record, for the consideration of the court is, whether the parties to a suit having by bond, and not by rule of the court, submitted thé action, and the cause of dispute involved in it, to arbitration, such reference shall have the effect to discontinue the suit? And we think it lias such effect. If parties having a suit in court, by their own voluntary act, submit the action and cause of action to another tribunal, selected by themselves, and do not choose, by making their submission a rule of the court, to continue its jurisdiction over the cause, and to subject the arbitrators and their action to the control of the court, the jurisdiction of the court has been determined by their own act, and the cause will be discontinued. This seems to be so upon principle, and it is so also upon authority; see the case of Green vs. Patcher, 13 Wind. Rep. 294, and the cases there referred to. The judgment of the circuit court will therefore be reversed, in overruling the demurrer of the defendants to the replication of the plaintiff to the fourth plea; and this court proceeding to give such judgment as the circuit court ought to have given, sustain the demurrer, and give judgment for the defendant below, that he go hence and .¡recover his costs, &c. *

Judgment reversed-.  