
    Van Auken et al. v. Buxton.
    An issue directed under the sheriff’s interpleader Act of April 10,1848, is not subject to the provisions of the compulsory arbitration Act of June 16,1836.
    Feb. 27, 1889.
    Error, No. 54 Jan. T. 1889, to O. P. Wayne Co., to review an order making absolute a rule on defendants to show cause why a rule of reference in a sheriff’s interpleader should not be stricken off, at March T. 1888, No. 4. Williams and McCollum, JJ., absent.
    The following facts appeared from the record: On Dee. 23, 1887, a feigned issue was directed on a sheriff’s interpleader to determine the ownership of certain goods levied upon. Dec. 28, narr filed. May 28, 1888, rule of reference entered. June 2,1888, arbitrators chosen, the plaintiff not appearing and the prothonotary acting for him, as required by the Act. June 4,1888, on motion of plaintiff’s attorney. A rule was granted on defendants to show cause why the rule of reference entered in the case, and the arbitrators chosen under the same, should not be stricken off, at cost of defendants.
    The rule was made absolute in the following opinion by Seely, P. J.:
    
      “ The single question presented is, whether an issue directed under § 9 of the Act of April 10, 1848, sheriff’s interpleader, is subject to the provisions of the compulsory arbitration Act.
    
      “ The proceeding is wholly for the benefit of the sheriff. Bain v. Funk, 61 Pa. 187; Lazelere v. Haubert, 109 Pa. 518; Maurer v. Sheafer, 116 Pa. 343.
    
      “ So far as tbe issue is concerned, it is immaterial -whether or not the claimant files a bond and receives possession of the goods. If he does file such a bond and receive the goods, his possession does not withdraw the goods from the custody of the law, nor relieve them from the effect of the levy. Bain v. Lyle, 68 Pa. 63. If no such bond is filed, the goods remain in the hands of the sheriff. The issue remains the same and proceeds to its determination in the same manner.
    “It is an issue directed for the trial of a question of fact, whether the claimant is the owner of the goods levied upon or any portion of them. This fact ascertained does not constitute a complete basis for the entry of judgment, but presents to the court a basis for direction to the sheriff with reference to further [action] upon his writ.
    “ The Act of Assembly prescribes that the costs of all such proceedings shall be in the discretion of the court. The order directing the issue expressly reserves £ the question of costs and all further questions ’ until after the trial of the issue. The order of the court contemplates that the issue shall be submitted to a jury, and, to secure its prompt determination, directs £that it be placed at the head of the list for the first jury term thereafter.’ If a rule-of reference may be taken out by either party, in such a case, the order of the court placing the issue at the head of the list for the next jury term may, of course, be annulled by either party, and, as the purpose of the proceeding is to relieve the sheriff, it would seem clear that the parties should not possess such power. But, aside from this, the whole proceeding is so clearly outside of the scope and spirit of the arbitration Act that we think it does not come within its operation. See Taggart v. Fox, 1 Grant, 192.
    “We do not perceive how an issue granted by the court, for the determination of a question of fact simply, can be subject to the arbitration Act. See Hoffman v. Walborn, 1 Pearson, 18.
    “ What shall be done with the award when rendered ?
    “The 39th section of the Act of June 16, 1836, expressly excepts from the operation of the Act ‘ issues directed to any court to ascertain a -fact or facts.’
    “We think it is immaterial whether the words of the excepting section apply to the case or not. No exception was necessary. While the term £ civil suit or action ’ in the 8th section of the Act of June 16, 1836, is very £ broad and general,’ as was said in Taggart v. Fox, supra, we think it does not cover all possible issues; an issue directed by a chancellor, for the information of his conscience, for instance.
    “ Whether we say, as was said in Taggart v. Fox, that the issue in the present case is excluded from the operation of the Act of June 16, 1836, because it is not within the spirit; or say that this issue is not a £ civil suit or action ’ within the meaning of those words as used in the Act of 1836, we are clear in our opinion that the rule of reference cannót be sustained.
    “Now, July 5th, 1888, the rule is made absolute.”
    
      
      The assignments of error specified the action of the court in striking off the rule of reference entered by the defendants.
    
      H. Wilson, with him D. M. Van Auken and O. L. Rowland, for plaintiff in error.
    The case is not an “ issue directed to any court to ascertain a fact or facts,” within the contemplation § 39 of the Act of 1836. This contemplates an issue directed by one court to another, as an issue devisavit vel non, directed by the orphans’ court to the common pleas, or an issue to determine the validity of a judgment confessed by an executor, and contested by heirs, on an attempt to sell land for its payment. Dean’s Ap., 8Y Pa. 2Y. The sheriff’s interpleader was unknown when the Arbitration Act was passed. It is not an issue directed to a court, but an issue framed in the same court in which the whole proceeding lies, and directed to a jury. It is, in effect, a substitute for an action of trespass, restoring to the plaintiff his goods instead of giving him damages for their unlawful seizure. It is a “civil suit or action” within the scope and meaning of the Arbitration Act.
    If this action may be arbitrated, the error of the court below should be corrected at the earliest moment in order to remit the defendants to their rights under the Arbitration Act. If they must wait until after a jury trial, before the question can be reviewed in this court, the right to be heard before a tribunal of arbitration is practically gone.
    
      C. W. Bull, for defendant in error.
    The writ of error in this case should be quashed. The making absolute a rule to strike off a rule of reference and the arbitrators chosen under the rule is an interlocutory judgment, and a writ of error does not lie. Erie Bank v. Brawley, 8 Watts, 530; Straub v. Smith, 2 S. & R. 382; Ranck v. Whitaker, 4 W. N. C. 69; O’Hara v. Pa. R. R., 2 Grant, 241.
    There should be final judgment before a writ of error will lie. Chadwick v. Ober, 70 Pa. 264; O’Hara v. Pa. R. R., supra.
    A writ of error does not lie till after final decree or judgment on a feigned issue. Reed’s Ap., 71 Pa. 378; Bain & Kern v. Funk, 61 Pa. 185; McFarland v. Clark, 4 W. N. C. 250.
    If the issue is arbitrated, and an award rendered, which remains unappealed from, what becomes of the questions reserved by the court in directing the issue? What information would the court have upon which to dispose of them ? What advantage can be gained to either party by the arbitration? The award cannot become a lien or any further security be obtained than already had by virtue of writs theretofore issued.
    Counsel for defendant in error, in addition to the above, repeated the reasons given in the opinion of the court below.
    Feb. 27, 1889.
   Per Curiam,

Decree affirmed.

Note. — If the judgment in the above case should have been “ writ quashed ” in place of “ decree affirmed,” the statement of the syllabus, as above, would not be correct. The case was disposed of on argument.  