
    George Newton, administrator, vs. Hart A. Rice.
    Franklin.
    September 23.—25, 1875.
    Ames & Devens, JJ., absent.
    Where, in an action upon a bond, the whole case is referred by agreement of parties and rule of court to referees, judgment upon whose award is to be final, the reference includes the amount of damages as well as the question whether there has been a breach of the bond; and upon the acceptance of the award by the court, execution is to issue for the damages named therein, although judgment is to be entered for the penalty of the bond.
    Contract upon a bond executed by the defendant to Roswell Rice, the plaintiff’s intestate, and conditioned among other things for the support of the intestate and Amy Rice, his wife, during their lives and the life of the survivor of them. The cause was referred .to referees by an agreement of parties and rule of court whereby the judgment on the award was to be final.
    The referees made an award, that the condition of the bond had been broken, and that the damages caused by the breach amounted to the sum of $800.
    The award was ordered to be accepted by the Superior Court, judgment to be entered for the penal sum of the bond, .and execution to issue for the amount found by the referees. The defendant appealed.
    
      S. T. Field, for the defendant.
    
      D. Aiken, (A. De Wolf with him,) for the plaintiff.
   Gray, C. J.

In an action upon a bond, upon proof of a breach,

the judgment must indeed be for the penalty of the bond; but the amount due and payable in equity and good conscience must be determined by the court, or by a jury or assessor under its direction, before execution can issue, and the execution must be limited to the amount so found due. Gen. Sts. c. 133, §§ 9, 10. Austin v. Moore, 7 Met. 116, 125. Merrill v. McIntire, 13 Gray, 157. Fish v. Gray, 100 Mass. 191.

When the whole action is referred to arbitration by agreement of parties and rule of court, the reference includes everything which is required to be judicially determined in the case to entitle the prevailing party to execution, and includes both questions, whether there has been a breach of the bond, and what amount of damages the plaintiff is entitled to.

The award in this case was therefore within the authority ccs? - ferred upon the referees, and the judgment and award of exec* tian in conformity therewith must be Affirmed  