
    BURROUGHS against GENUNG.
    OEBTIOBABI.
    Reversal, on entry of judgment upon report of referees, without record or proof of reference.
    The matters in controversy between the parties, had been submitted to reference on an agreement, that the agreement to submit, should be made rule of any court of record having cognizance of the sum reported. The referees reported: First, that the defendant have peaceable and quiet possession of the wood and timber, on a certain piece of land. Second, they reported in favor of the defendant the sum of $32.28. This report of referees was taken to the justice, who, without any [*] proof of the agreement to submit, made the following entry in his docket: — February the 27th, 1806, after examining the above report, I gave judgment in favor of the defendant, for thirty-two dollars and twenty-eight cents debt, and twelve dollars and ninety-three cents costs.
    It was contended by Mr. I. II. Williamson, on the part of Burroughs, the plaintiff in this court: 1st, that a submission to arbitration and reference, out of court, [76] could not be made a rule of a court for the trial of small causes; and 2d, that in case the court should be of opinion that it could, yet that the statute had not been complied with, in proving by affidavit, the agreement to make the submission a rule of court.
   By the Court.

— There must be a subsisting action, actually depending in a court for the trial of small causes, before it can be referred; an agreement out of court, to submit a matter in dispute, to referees, and also to make such submission a rule of court, cannot afterwards be made a rule of a justice’s court, and enforced therein by attachment. Parties desirous of submitting their controversies to referees, may, however, go before a justice and instituté a suit by consent; when they have done this, the cause then being depending, may be referred to referees, and proceeded in as in other eases of causes referred by a rule of this or any other court of law in this State.

Judgment reversed.

Cited in Prosser v. Richards, 1 Penn, 377. 
      
       Tha 1st and 2d and 6th. sections of the act entitled, “An act regulating references, and determining controversies by arbitration,” cannot be intended by the legislature, to be carried into operation by a rule of the justice’s court. These sections make a provision for enforcing a compliance with the award of arbitrators or umpires, by courts of record; this must be done by proceeding against the delinquent party for his contempt in disobeying a rule of court; this proceeding hath never been gone into in a justice’s court, nor can it be presumed that the legislature ever intended that it should. The 37th section of the act, constituting courts for the trial of small causes, which authorizes rules of reference, is confined to actions actually subsisting in the court
     