
    Mitchell v. Kelly.
    [Tuesday, October 30, 1798.]
    Awards — Orders of Reference -Construction of Statute. — Does the act of Assembly, relating: to awards apply to orders of reference made In causes during the progress of suits ?
    Same — Entry of Judgment, — Not necessary that the award should lie in Court two terms before judgment, if the party offers exceptions; for, that is a waiver.
    Kelly brought indebitatus assumpsit against Mitchell in the District Court of Northumberland; plea, non assumpsit, and issue. Afterwards on the 6th day of April, 1795, the parties by rule of Court, referred the cause to the determination of Bellfield and Brewer, or their umpire, and agreed that the award shall be made the judgment of the Court. The order was, that the referees might proceed ex parte, if either side failed to attend after notice. In April, 1796; the arbitrators returned their award, bearing date the 25th day of March, 1796; wherein, after stating that due notice had been given, and that they had had the parties before them, and considered the exhibits and evidences produced, they 380 awarded a balance due *to Kelly, from Mitchell, of 2031. 7s. 7d. agreeably to an account thereto annexed. Which award was made the judgment of the Court on the 4th day of April, 1796. From this judgment, Mitchell appealed to this Court.
    The defendants filed a bill of exceptions to the Court’s opinion, stating, that he had moved to reject the award, for reasons stated in his affidavit, (which is annexed to the accounts furnished the defendant by the said Brewer, one of the arbitrators;) but, that the Court over-ruled the motion.
    The affidavit referred to, states that the defendant had received no notice from the plaintiff, to attend the arbitrators since the first of September, then last part; and, that the account thereto annexed, in the hand writing of the said Brewer was, by him, delivered to the defendant, some time in the said month of September.
    This affidavit bears date the 2d day of April, 17%.
    Wickham, for the appellant.
    The award must lie a term for the party to except; for, otherwise, he would have no effectual opportunit3r of shewing cause against it; because, the judgment would be final, and an execution might issue on it before the time, for making his exception, had expired. But, this would be plainly contrar3r to the act of Assembly. R. C. 54, [c. 114, l 2, p. 454, ed. 1819; c. 46, 13 Stat. L,arg. 63], The appellant offered a good exception to the award, and whether true or false, was not important, for he ought to have been allowed time to support it. Another notice should have been given to the appellant, after the copy of the account was furnished him. Therefore, although, there was no corruption in the arbitrators, yet the word misbehaviour will embrace it. Because, not having given further time, when they were bdund to do so, they did misbehave.
    Warden, for the appellee.
    The act of Assembly does not apply to the case; for, that was only intended for references before-the 'commencement of a suit, and not for those which, were 381 made ' in *the- progress of a cause, without the forms and solemnities mentioned in the act. But, if it did, still there is no ground to impeach the judgment. Eor, the account was delivered to Mitchell by one of the arbitrators, in order that he might state his objections; which, he never did: and, therefore, the- inference is, that he had none. The exception, made in Court, was not sustained by any evidence; and, if it had, the matter of it was not sufficient to delay the judgment: Especial^, as no specific exception to the account was made either to the referees or the Court.
    
      
      Awards — Orders of Reference — Construction of Statute. — If there be an order of reference made during the pendency of a suit, the award, in pursuance thereof, need not lie in court two terms, as it is not within the act of Assembly, upon awards. Holcomb v. Flournoy. 3 Call 433, 437, citing, with approval, the principal case. See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   PENDLETON, President.

Delivered the resolution of the Court as follows:

This is an appeal from a judgment of the District Court, entered upon an award made pursuant to a submission by order of Court, in a suit 'depending; and at issue. The judgment was moved for at the term the award was returned; and, opposed by the defendant, for want of due notice; which being over-ruled, he filed his exception.

The counsel here, has added another objection, that the judgment was entered too soon, in the term when the award was returned ; since the act of Assembly of 1789, [c. 46, 13 Stat. Larg. 63,] relating to. awards, allows the parties till the end of the next term, to make their objections.

Without deciding, whether' the act extends to the present case of' a submission made in a suit depending? We are of opinion, that admitting it does, the privilege of time might and was waived by the defendant, in this case; he having brought forward his objections at an earlier period.

As to the notice, the affidavit is equivocal: he says, that Kelly gave him no notice after the first of September; thereby implying, that he-had given him notice before, and admitting that he might afterwards have had notice from the arbitrators. Which is the rather presumable, since he admits, that he received in that month 382 Kelty’s account *from one of them; no doubt for some purpose; probably, for an opportunit3r to make objections to it; and, these the arbitrators waited for, until the month of March following. In which time, he may have made them; and, they may have been considered by the arbitrators : Who report, that upon due notice, they had heard the parties; had considered their’ exhibits and evidence; and, had made the award between them. He does not say, that he has any objection to the account or to the justice of the award; but, is quibbling in terms about the notice.

Judgment affirmed.  