
    Kimmel and another against Shank.
    In Error.
    ERROR to the Common Pleas of Somerset county.
    The defendant in error, the plaintiff below, brought an action on the case against Kimmei and Ogle, which was referred, by consent of parties; to three men, “ on whose decision, or a cc majority of them, judgment to be entered by the prothono- “ taryE A report was made in favour of the plaintiff, from which one of the defendants appealed. The Court, however, entered judgment on the report; and the only question now made was, whether this was a reference under the act of 1705, or under the" arbitration law.
    Kb appeal lies from an award madeunder an agreement to refer to men on whose decision, or a majority of them, judgment is to be entered by the prothonotary.
    
      
      Forward for the plaintiff, in error.
    
      Weigly and Wilkins, contra.
   Tilghman C. J.

delivered the opinion of the Court.

The parties have a right to submit to a reference under the old act of 1705 ; and where they do so the Court cannot alter it, because it is an important circumstance that under that act there is no appeal, but under the compulsory act there is an appeal. We must judge from the record: and by that it appears that the agreement was that the prothonotary should enter judgment on the award when returned to his office. This is inconsistent with the compulsory act; for no judgment is to be entered by the prothonotary when the proceedings are under it. A minute of the report is to be made that is to have the effect of a judgment until reversed on an appeal. I am therefore of opinion, that we must take this reference to have been entered under the act of 1705. Consequently no appeal lay, and the Court of Common Pleas was right in entering judgment on the report. I am therefore of opinion that the judgment be affirmed.

Judgment affirmed.  