It seems to be conceded that this is not a submission under the act of 16th June, 1836, relating to reference, &c. because it does not contain an agreement that it should be made a rule of court. (See Fox v. Ealer, ante p. 169.) If it be under the act of 21st March, 1806, then the 5th exception must prevail. The third section of that act prescribes that the referees must be sworn or affirmed “ unless the same shall be dispensed with by the consent of the parties.” Now this dispensation intends an agreement of the parties to that effect, not an inadvertence, which in this instance was the case.
If the submission was at common law, the court have .nothing to do with the matter, as then an action should be brought on the award.
Report set aside.