The reference was not to the Clerk as an ar-bi trator. The parties did not treat the report as an award, and it is plain, that it was not so intended to be. The purpose was to proceed under the act of 1826, upon the supposition that the case was within it, as was done in Lynch v. Johnson, 11 Ire. 224, and there held to be erroneous. Issues were joined in the record for the jury, and there has been no trial of them; consequently the judgment, thus rendered without a verdict, must be reversed, and the cause remanded for further proceedings according to .law.
Per Curiam. Judgment reversed and cause remanded.