The opinion of the Court was delivered by
Gibson, C. J.
The practice of opening a judgment entered on warrant of attorney to let in a defence specially sworn to, is peculiar to our jurisprudence; and it would seem, from the looseness with which it has prevailed, that its nature is not very distinctly perceived by ourselves. We have no traces; of it in the English books; for where the warrant has been procured from an infant or a feme covert; or for a usurious consideration; or as an inducement to live in a state of prostitution; or to secure a void- annuity, or the like; their practice has been to order it to be delivered up, and the judgment, if one has been entered on it, to be set aside. Perhaps it may be thought that this is done upon a supposition of irregularity, but their practice is the same in the analogous case of a regular judgment by default on an affidavit of merits. No instance can be fouud of a judgment opened, by an English court, in our sense of the term; on the contrary, their practice is to award a collateral issue, and only when facts are alleged to be in contest, instead of an issue in the cause. Our practice, however, seems to be the better one, as it gives the defendant all proper advantage of matter of original defence, without loosening the plaintiff’s hold on *426the security gained by the judgment. Our remedy also, for irregularity or collusion in the rendition of a judgment, is to overturn it; but for pretermitted matter of defence, it necessarily is to open it, for it is impossible to say what may be found due. Our practice, therefore, is to try collusion by a collateral issue, but matter of defence by an issue in the cause. Were this distinction kept in view, it would prevent much misconception and confusion. In Kellog v. Krauser, it certainly was in the view of Chief Justice Tilghtnan, when he said: “I hope it is not now a matter of doubt whether a court of common pleas can entertain a motion to strike out or open a judgment entered on warrant of attorney, or to order a feigned issue to ascertain necessary facts.” Yet it has not always been attended to; for, though the bond and warrant in Whiting v. Johnson, 11 Serg. & Rawle 438, were given to defraud creditors, and consequently presented a case for a feigned issue and striking out, as the matter was held in Gurney v. Langlands, 5 B. & Ald. 330, the judgment was opened in the first instance to try, in the action, what could not be tried betwixt the parties. To open a judgment, however, is not to set it aside; for when it is closed again by the finding of a sum due, an execution issues on it as if it had not been disturbed. It may have been opened on terms; and it is usual to add a direction that it stand as a security, which, however, seems to be unnecessary, as the opening of it deprives it of no quality but its maturity for execution. Now, the substance of the agreement here was, that the judgment should be opened without waiting for the decision of the court on the rule to show cause; and that the sum due should be ascertained by the arbitrament of particular men instead of the verdict of a jury. Was there, then, an action pending within the purview of the act of 170.5? There was, strictly speaking, no action pending then; nor has there been since. The pendency of the action, if it ever had a beginning, was terminated by the judgment into which it instantly passed; and nothing was pending by the agreement but a subordinate proceeding to ascertain the sum for which execution might issue. Nor would the pendency of the action have been restored, had the judgment been opened by order of the court; for it would have remained á judgment still, and the inquiry would still have been a subordinate one to ascertain the amount due by the verdict of a jury—a matter which might have been referred, but not as an action pending within the act of 1705. It is asked, then, to what statute is this species of arbitrament referable? To no statute. It is referable to the agreement of the parties who were a law to themselves. It was doubtless convenient and useful to class these forms of arbitration which were most commonly in use and regulated by the statute or the common law; but it follows not, where there is no positive prohibition in the way, as there is in the case of land title, that there can be no other occasion or form of it by the agreement of parties competent to settle their differences in their own way. *427In this instance they might have fixed the sum by their own act; and what else did they, when, on the foot of the maxim that things are certain which can be made so, they agreed to let it be whatever should be named by the men designated? If then, they had power to bind themselves, the terms of agreement dispose of the exceptions at a breath. Execution was to issue immediately, and consequently without,waiting for the reading of the award required by the rule of court, the approval required by the act of 1705, or the second judgment required by no authority at all. The execution and subsequent proceedings were consequently regular.
Judgment affirmed.