14 N.C. 531 | N.C. | 1832
The writ was issued on 27 August, 1831, returnable to the ensuing term of LINCOLN Superior Court. The defendant accepted service of the writ on the 31st of that month, and on the 1st of September following the parties entered into an agreement in writing, whereby the matter in controversy was referred to the arbitrament of two persons, "whose award, made as above, shall be a rule of court." The (532) arbitrators made their award on 22 October following, before the return day of the writ; and on the Monday of the ensuing Superior Court of Lincoln it was handed to the clerk, when the defendant filed exceptions to it and pleaded to the action. On the last fall circuitSwain, J., overruled the exceptions and entered judgment according to the award, from which the defendant appealed. after stating the case as above, proceeded: The agreement of the parties, out of court, set forth in the submission that the award should be a rule of court, did not make the rule. And although the agreement was made during a lis pendens, yet no attachment could have issued, according to the principles of the common law, against the defendant for a violation of that agreement. A rule of court to stand to a submission and award was, according to the common law, a rule entered in some one of the courts at Westminster, where the record and pleadings in the cause were made up. A party who consented to have such a rule entered, and disobeyed it afterwards, was subject to an attachment for a contempt. We have, after diligent search, been unable to find any authority establishing the principle that an agreement of the parties pending a suit, to submit to arbitration, and that the submission and award should be a rule of court, was in fact such a rule as by the principles of the common law would authorize an (533) *428 attachment to issue for its violation. In this State it is the practice to enter judgment according to the award in those cases in which, by the rules of the common law in England, and attachment would have been granted for a disobedience of a rule of court to stand to the submission and award. We, therefore, think that the Superior Court had not power to enter the judgment which was rendered in this case. The statute of 9 and 10 Will. III, ch. 15, is not in force in this State. The judgment might have stood perhaps according to the provisions of that statute. As there was not such a rule of court entered in this case as would have authorized an attachment at common law, and the statute of Will. III not being in force here, we are compelled to set aside the judgment and award a procedendo.
PER CURIAM. Judgment reversed.
Cited: Cunningham v. Howell,
