
    * Samuel Hodges, Plaintiff in Error, versus William Hodges, Executor.
    In an action upon a promissory note, against which the defendant had filed an account, a rule was made, referring the action and all demands between the parties to certain arbitrators, who reported that the plaintiff had not supported his demand, and that the defendant should recover the costs of the reference: judgment was well entered upon tire report, and the defendant is still entitled to an action upon the account filed, on which the referees did not report.
    Error upon a judgment of the Common Pleas for this county, rendered December, 1808, between the sáme parties.
    In the original action, the plaintiff in error demanded payment of a promissory note made to him by Abijah Hodges, the defendant’s testator, for 270Z. lawful money.
    In that action, a rule was entered into by the parties, referring the said action and all demands to the determination of three referees, and agreeing that final judgment should be entered upon the report of the three, or of any two of them.
    The referees reported that they had notified, met, and heard the parties to the rule, and had fully considered their several pleas and allegations on the subject matter thereof; and thereupon they awarded that the plaintiff had not supported the demand made by him ; and that the said William, in his said capacity, should recover the costs incurred in the reference, but no costs of Court. The report was accepted by the Court, and judgment rendered accordingly
    
      There came up, in the case, an account of the defendant’s testator against the plaintiff, which had been duly filed in the action by the defendant, pursuant to law. •
    The defendant pleaded in nullo est erratum.
    
    
      Sproat and Gilbert,
    
    for the plaintiff in error, argued that the award of the referees was of one side only, whereas all demands were submitted. The plaintiff’s demand was alone decided on, and the demand made in the defendant’s account filed in the case remains undecided, so that the plaintiff is still exposed to an action thereon. 
    
    
      Tillinghast for the defendant in error.
    
      
       1 Saund. 326, Veale vs. Warner.—8 Co. 193, Baspole s case.
    
   By the Court.

Non constat that the defendant’s account was ever laid before the referees. If it was not, they could not arbitrate upon it. The agreement of the parties, evidenced * by the rule of the Court, was then so far not executed; and notwithstanding the general report of the referees, the defendant, if not otherwise precluded, may yet have his action upon the account filed by him, but on which the referees have not awarded. The judgment of the Common Pleas is affirmed, with costs for the defendant in error. 
      
       Vide Webster vs. Lee, 5 Mass. Rep. 934.
     