
    David Fowler, Plaintiff in Error, versus Titus Bigelow and Elizabeth, his Wife.
    Referees appointed pursuant to the statute of 1786, c. 21, have no jurisdiction of questions concerning the title to real estate.
    This writ of error was brought to reverse a judgment of the Court of Common Pleas for this county, rendered upon the report of referees appointed by a rule between the parties, made before a justice of the, peace, under the statute of 1786, c. 21.
    The demand made by the defendants in error, on which the submission to the referees was founded, was of one half of the real estate of David Fowler, deceased, father of the said David, the plaintiff in error, and of the said Elizabeth, and of the rents and profits thereof since the decease of their said father, and costs ; and it purported to give to the referees power to divide the estate as they should judge equitable, and to revise, alter, annul, or confirm any former division or judgment respecting the same, and to determine and award thereon, notwithstanding any former report of referees should have been ratified at court; and * also to determine and award upon the costs of any former decision or hearing upon such estate.
    The submission was in the form contained in the statute.
    The referees made their award to the Common Pleas ; in which, among other things, they assign to the said Elizabeth certain specific parcels of the real estate of her said father, and to the plaintiff in error all the remainder; and upon this report the Court of Com mon Pleas entered judgment.
    One of the errors assigned was, that “ the referees, in and by their said award and report, have taken upon themselves to make partition of the estate of the said David Fowler, deceased, when by law they had no power or authority so to do.”
    
      Bliss and Ashmun for the plaintiff in error.
    
      Ingersoll and Lathrop for the defendants in error, 
    
    
      
      
         [The language of the statute referred to seems to be broad enough to embrace disputes concerning lands, for it speaks of“ disputes of what nature soever; ” and the provision that any one who shall be found indebted may discharge himself from the award by paying the sum awarded, is intended only to specify the cases where there may be a valid discharge by a receipt upon the award, and not to qualify the meaning of the language before mentioned, or limit the subjects of submission or reference. But, without reference to the statute, the award having been made by arbitrators chosen by the parties, upon a matter submitted to them by the agreement of the parties in writing, there seems to have been no reason why it should not have been binding on them at common law. A disputed right or title to real estate may be submitted to arbitration by the parties, and the award, made pursuant to the submission, will estop them from setting up any right or title against it. . Doe vs. Rossen, 3 East, 15. — Robertson vs. M’Niel, 12 Wend. 578. — Cox vs. Jager, 2 Cow. 638.—Jackson vs. Gager, 5 Cow. 383. — Prosser vs. Goring, 3 Taunt. 426. — Knight vs. Burton, 6 Mod. 231.— 1 Salk. 75. — Trusloe vs. Yewre, Cro. Eliz. 223. — Dyer, 183, note —-2 Leon. 104. — S East,39. — 3 Camp. 444. — Baker vs. Townsend, 1 Moore, 120. — 7 Taunt. 422.— Byers vs. Van Deusen, 5 Wend. 268. —Johnson vs. Wilson, Willes, 248. — 7 Mod. 345 — See Brown vs. Bellows, 4 Pick. 179.— Gilman vs. Brown, 14 Mass. 128. By the Revised Statutes of Massachusetts, it is provided that all controversies which might be the subject of a personal action at law, or of a suit in equity, may be submitted to the decision of one or more arbitrators, in the manner provided in chapter 114..— Ed.]
    
   By the Court.

The uniform construction of the statute, on which the proceedings in this case were founded, has confined its operation exclusively to personal demands. The words of the statute plainly show this to have been the intention of the legislature. In the fourth section there is a provision that the determination of the referees may, by consent of the parties, be made known to them prior to its being returned to the court; and, in such case, it is made lawful for the party who may be found indebted, to discharge himself therefrom, by paying the same tó the person to whom it shall be awarded, and having his receipt therefor on the back of the determination, &c.

The proceedings in this case were unauthorized by the statute. The report of the referees was void, and the judgment founded thereon erroneous. It must, therefore, be reversed.  