There is nothing in the exception to the time of the ■ reference. In consolidating the existing laws by the act of 1836, the provision which prohibited a compulsory reference before the return day of the writ, was purposely left out. Nor is it at all certain, that a return day out of term, would not have satisfied the requirements of the exploded section. But the award is vicious on another ground. It is a cardinal requisite of every award, and peculiarly essential to an award of arbitrators, who perform the functions of a jury, that it be not only certain but final; and no counsel would attempt to sustain a verdict, that the defendant pay a sum in numero, “ or carry out and strictly fulfil his part of the contract.” The alternative could not be rejected, because it must be taken for a substantive part of the finding; for who could say that a verdict would have been rendered against the defendant without it 1 Yet it would require a new action and a new finding, to settle the terms of the contract; so that this award is quite as inconclusive as was the verdict in Bugley v. Wallace, (16 Serg. & Rawle, 245,) or in Allen v. Flock, (2 Penn. Rep. 159,) and for this reason the award is erroneous.
Award set aside.