
    Blackburn and another against Markle.
    
      Chambersburg, Monday, October 4.
    Upon a report of referees finding a sum due by the plaintiff to the latter cannot enrecoveirthe^um and issue exeeution. His remedy is by scire facias, attarfiraent^
    tíí EKR0R.
    jw ■» ■* RROR to the Common Pleas of Huntingdon«
    The parties having had a controversy in relation to an exchange of lands, Blnckburn and Confare instituted an ejectment, in which by consent judgment was entered for the plaintiffs, and by rule of Court it was referred to three ,, , , . . -, , . ~ , men, “ who taking into view all the circumstances or the “ transaction, were to make report what sum was to be paid “ to the defendant, the plaintiffs holding both properties “ mentioned in the articles of exchange. Articles of ex- “ change to be delivered up, on the report being made and “confirmed.” The arbitrators made an award for 1,296 dollars 46 cents in the defendant’s favour, upon which he entered up judgment, and issued execution.
    The question was whether the judgment and execütion itere erroneous.
    
      
      & Riddle and Duncan for the plaintiffs in error,
    contended they were; and that the only remedy was by scire facias unde^jjpje defalcation act of or by attachment; but before-í|e Court issued the attachment, cjjr granted judgment ón' the sci. fa., they wou® compel tíre defendant to give up the articles of exchange, which had not been done.
    
      Huston in reply,
    said that the agreement of reference was in factga new action: judgment had been entered in the ejectment, and this was a proceeding entirely collateral to it.- In what form could the scire facias have issued? How call on the plaintiff in ejectment to shew cause why he did not pay money, to the defendant?
   Tilghman C. J.

This agreement was entirely collateral to the action. It would have been better .to have entered anew action,-in which the defendant should have been plaintiff. Being made however by rule of Court, the party injured by non-performance of the award, might perhaps have remedy by attachment, but as to that I give no opinion. That is the mode by which reports under rules of Court are enforced in England, and could have been enforced here, but for an. act of assembly, which authorizes the entry of a judgment in the same manner as upon the verdict of a jury. Act for Defalcation, 170S. But suppose that upon the verdict of a jury, a sum of money should bé found due from the plaintiff to the defendant. At common law no judgment can be entered for the defendant to recover any. money from the plaintiff. But here again our act of assembly alters the common law. In such case the defendant may have a scire facias against the plaintiff, on which he may have judgment and execution for the sum found in his favour. Reports of referees being-jut upon the same footing as verdicts, I do not see in what manner the defendant can support his proceedings. If .his case falls within the act of assembly, he should have taken a scire facias, or as I have intimated, perhaps he might have had remedy by attachment. But even if it had been a proper case for an attachment, the Court would not have awarded it without enquiring whether the party moving for it, had done on his part every thing which he ought tQ have done, and in this case it appears that somethihg was to be done by the defendant. He was to deliver uP articles of exchange. Consider* the matter in what view you will, it appears to me that the judgment and execution were erroneous. I am therefore of opinion that they should be reversed.

Yeates J. and Bb.ackenr.idge J. concurred.

Judgment reversed.  