
    Deal’s executors against Deal.
    In Error.
    
      Tuesday, September 11.
    ERROR to the Court of Common Pleas of Allegheny COUnty. . -
    action of account render could bearbi¡^hf Actof 20th March, 1
    But if it ?ould> lthe ferees should first have dethedefendant^ ®ft“°unta' wliich another should have beenhadfor settlement ol the account. They ought not to have treated ¡t as assumpsiu
    Account render brought by John Deal, senior, against William Deal, junior, in which the executors of the plaintiff below, were substituted after his death. 1’he plaintiffs took out a rule of arbitration. The arbitrators met and heard the ' ' case, and tied an award in favour of the defendant, for 502 dollars, 27-cents, on the 25th October, 1819. The defendant issued a fieri fiadas returnable to August Term, 1821, and tbe Court below on motion of the plaintiffs, granted a rule to shew cause why this execution should not be set aside The writ of error removed only the judgment in this cause, ' and not the execution. •
    
      Denny and- Hopkins, for the plaintiff in error, now-assigned several .errors in the judgment and proceedings below. 1st. They contended that an action of account render, not within the arbitration Act of 20th March, 1810.. It became necessary to pass an Act of Assembly, for this particular purpose, as was done by the Act of 20th March, 1821, Pamphlet, 152. The proceedings in this case being prior to that Act of Assembly, are irregúlar and void.
    2d. Even if a compulsory arbitration might have been had, the arbitrators had no authority to award a sum of money in favour of the defendant. It appears to have been the opinion of the Court, in Mk Call v. Crousillat, 3 Serg\ Rawle 7,. that auditors have no right to find the defendant in surplusage. If the arbitrators could exercise the powers of auditors, their first award could only authorise a judgment quod computet, and not a final judgment.
    3. Ihey objected to the execution, because it issued after the year and day without a scire facias.
    
    M-Donald, contra. •
    The plaintiffs took out the rule of arbitration, and ought not to be permitted to except to it. The plaintiffs below were entitled to a stay of execution for twelve months, and therefore the execution might lawfully issue, within the year and day after the expiration of the stay of execution. The arbitration Act extends, “all civil suits or actions,” and embraces within its letter and spirit, an action of account render, as well as any other species of action. When the arbitrators are organised under it, they are a new tribunal, proceeding according to the directions of the Act of Assembly, and not according to the common law system before auditors. It has never been decided that an action of account render may not be arbitrated. The Act.of 20th March, 1821, can be considered only as explanatory of the prior Act; and not as a legislative declaration, that the law was to be changed.
   Per Curiam.

This is an action of account render, in which a rule of reference was entered by the plaintiffs. The referees treated it, as a common action of assumpsit, and made an award in favour of the defendant, for 502 dollars, 27 cents. This was erroneous, for even if an action of account render, were comprehended in the Act of Assembly, on which the rule of reference was founded, the referees should in the first place have decided whether the defendant was accountable, and made, an award accordingly; after which another proceeding should have been had, for the settlement of .the account. By a late Act of Assembly, referees in account render, may decide as in case of an action of assumpsit. But the present case is not affected by that Act. It is the opinion of the Court therefore, that the judgment should be reversed.

Judgment reversed and a venire facias de novo awarded. . ,  