By the Court,
There can be no donbt that the agreement of the parties to subject to arbitration the matters in controversy between them, including the judgment which the defendant Goss recovered before the justice, and which had been taken to the County Court by appeal, worked a discontinuance of the suit. Muckey vs. Pierce, 3 Wis. Rep. 307, and the cases there cited.
The reason is, that the parties had chosen a tribunal other than the court, in which to settle and adjust their controversies. There can be no doubt, therefore, that the act of Goss, in filing a transcript of the judgment which he had obtained in the justice’s court, in the Circuit Court, and taking out execution thereon, was in fraud of his agreement to submit "the matter involved in the judgment to arbitration.
The decree of the Circuit Court dismissing the bill is therefore on this account erroneous. The judgment and execution should have been vacated by the decree of the court below, whether the existence of the partnership was established by the testimony or not.
Decree of the court below reversed, with costs and cause remanded, &c.