
    M'Killip for the use of Williams against M'Killip.
    An award for more than one hundred dollars by referees appointed in an amicable suit, before a justice of the peace, is not a good award, either under the act of assembly or at common law.
    In Error.
    ERROR to the Common Pleas of Allegheny county, in an action of debt on a bond. The defendant offered in evidence and relied on an award in an action heretofore brought against him by John M'-Killip, the obligee. That action was entered as an amicable action before a-justice of the peace. It was submitted by consent of- the parties to referees, who made an award for 256 dollars and 56 cents in favour of the defendant. On the trial of this cause it was contended, on the part of the plaintiff, that the award was of no validity, no judgment having been entered on it by the justice, because his jurisdiction did not extend to any sum beyond one hundred dollars. On the other hand, the defendant’s counsel argued, that although the justice had no authority to give judgment, his jurisdiction being confined by the act of assembly to sums not exceeding one hundred dollars, yet the reference might be considered good at common law, and consequently the award was binding; and of this opinion was the Court. The plaintiff took an exception, and the cause was brought up by writ of error.
    Campbell, for the plaintiff in error.
    The President of the Court of Common Pleas had great doubts of the point decided by him, and wished it settled on a writ of error. The suit before the justice was an amicable one, but was submitted to arbitrators. By the act of 20th March, 1810, sect. 14. the justice has jurisdiction if the parties submit the matter to his decision. And it has been settled by the Court in Brenneman v. Greenawalt,
      
       that there is no jurisdiction above one hundred dollars unless the cause is left to the decision of the justice himself.
    Wilkins, contra.
    We say the award is binding on the parties, though the justice had no jurisdiction. The entry of the suit. on. the docket of the justice was surplusage. I admit,that if the agreement had been to enter an arbitration under the act of 20th March, 1810, the proceedings would have been void; because the act was in contemplation of the parties. The want of jurisdiction is immaterial: the agreement of the parties must be complied with. He cited Kyd on Awards, 10, 11. 61. 277. Add. Rep. 216. The Commonwealth v. Le Caze.
    
    
      
      
         1 Serg. & Rawle, 27.
    
    
      
       2 Dall. 1. 22. Add. Rep. 71.
      
    
   Tilghman C. J.

When the parties entered an amicable action and reference on the docket of the justice, it must have been with a view to have the cause decided according to the act of assembly from which he derived his jurisdiction. It must be presumed, that they knew the law under which they were acting, and the right to which each was entitled. If an award should be made for either party for a sum not exceeding 1Ó0 dollars, he would be entitled to judgment : and the other party would be entitled to an appeal to the Court of Common Pleas, where the cause would be tried by jury. But it would not be in the power of the justice to render judgment, if the award should be for more than 100 dollars. In a reference at common law the case is entirely different. The award is good to any amount. No judgment is entered on it: nor does any appeal lie from it. The consequences of a reference in an action before a justice, and a reference at common law are so different, that when persons enter into one it cannot be supposed, that they mean the other. Suppose the award in this case had been either for plaintiff or defendant for any sum under 100 dollars : might he not have insisted on the justices entering judgment: and might not the other party have had his appeal ? Could the party against whom the award was made, have arrested the judgment under an allegation, that the reference, was at common law ? Suppose the award had been in favour of the plaintiff for 200 dollars, on which the justice had entered judgment, and his proceedings had been quashed, because he had exceeded his jurisdiction; could the plaintiff have supported an action of debt on the award as a-good award at common law? Or,.suppose, that in case of an award for more than 100 dollars, the plaintiff should put the award in his pocket, knowing, that he could not obtain judgment, could he bring debt as upon an award at common law, and thus deprive the defendant of his right under the act of assembly ? The answer to these questions is too plain to admit of a doubt. Why then shall the defendant be permitted to avail himself of this award, because it happens to be in his favour? I can perceive no reason, and am therefore of opinion, that this cannot be considered as a reference at common law. The judgment must, therefore, be reversed, and a venire facias de novo awarded.

Ye ates J. was sick and absent.

Gibson J. concurred.

judgment reversed, and a venire facias de novo awarded.  