Churchill v. Crane , 22 Me. 22 ( 1842 )

At a subsequent term: —

Per Curiam.

— In this case the Court below ordered a default to be entered, upon the ground, that the parties had agreed that such default should be entered, if certain arbitrators, agreed upon between them to adjust the controversy, should make their award in favor of the plaintiffs, and return it to Court, which was done. To this order the defendants excepted.

No default could be ordered under such circumstances. An agreement out of Court to refer a controversy to arbitrators, is not in the nature of a rule, entered upon the agreement of the parties present in Court, which is a matter of record. Agreements of the latter kind the Court can enforce ; but those of the former, stand upon a very different footing. They bring into question matters of fact which the Court, without the intervention of a jury, is not competent to ascertain. The execution of the agreement, if contested, must be proved, and established; as must also the making and publication of the award; and that proceedings were had as agreed upon between the parties, preliminary to the making of it.

The exceptions are sustained; the default is to be taken off; and the action must stand for trial.