
    *Robert Shaw against John Atkinson, Richard Hunt and John Stowers.
    Where a replevin is brought for goods distrained for rent, and the cause is referred, and the referees find a sum due for rent beyond the time of distress, report will be set aside.
    
      Replevin for goods distrained for rent, brought to December term 1798. Afterwards “all matters in variance between the “parties in this cause were referred to William Hamilton, John “Dunlap and John Dorsey, or any two of them.”
    The referees reported the sum of 1000 dollars to be-due to the defendants, upon a balance of all accounts, by them settled up to the 1st July 1800.
    An exception was filed by the plaintiff to this report, that the distress on which this replevin was founded, was the seizure of the property of the plaintiff on the nth December 1798, for rent then due; and the referees in making their report, have avowedly taken into consideration, and decided both upon the rent accruing to the 1st July 1800, and the general accounts between both parties to that time, which by the terms of the submission, or the general tenor of their powers, they had no legal authority to do.
    Mr. T. Ross for the defendants,
    offered to shew, that the plaintiff exhibited to the referees by way of set-off to the rent due, all the repairs which he had done to the house out of which the rent issued, including those done in 1799 and 1800, after the replevin brought, and made no objections to the referees going into the whole of the accounts. He therefore virtually agreed, that they should settle all matters between them.
    Mr. M. Levy for the plaintiff.
    The powers of the referees can only be collected from the record, and the award must be judged of on the face of it. Neither can be supplied by parol testimony. On a mere parol submission this court cannot render judgment. However great the powers are, which this court exercise, still they are circumscribed within certain limits, and . their proceedings may be reviewed in the High Court of Errors and Appeals, who can only determine from what appears on the records themselves.
    Here the referees have evidently exceeded their authority. An award must be according to the submission, which only comprehends disputes then existing. Kyd on Awards, 91, 92, 113. If the time limited for making an award expire without an award made, application must be made for making the submission to a second arbitration a rule of court, otherwise the court cannot grant an attachment for non-performance of the award on the *second arbitration. So if the real parties submit to a second arbitration, without a [*49 rule of court. Ib. 218. 2 Term Rep. 643.
   By the Court.

We have every leaning in favour of awards, which so greatly contribute to settle disputes. But here the finding of the referees clearly exceeds their authority, which was confined to rent due on the nth December 1798, for which the distress was taken. A confirmation of the report therefore, would be error on the face of the proceedings. • Besides, the bail to the sheriff in the replevin bond might be improperly affected by such a decision. When they became sureties for the plaintiff, they would naturally regard the quantum of rent then claimed by the landlords, and determine their conduct accordingly.

Report set aside.  