All or any of the issues m an action may be referred by consent of the parties, C. C. P. sec- 244. The referees must state the facts found,- and the conclusions of law separately. Their report as to the facts has the effect of the verdict of a jury, sec. 248. ¥e do not think that it was intended by these sections to deprive parties of the right to refer all or any matters in controversy to arbitrators, with power to make an award, which should be a rule of Court. The parties can undoubtedly make such a reference, and the only question possible would be, whether the Judge would recognize the award, and make it a rule of Court, enforceable by its process, or leave the parties to their action on the arbitration bond or other like remedy. We cannot suppose it was intended to abolish so useful a mode of aqjlisting rights by indirection, and we think that the power to make an award a rule of Court still exists as incidental to every Court under its power, to enter judgment by confession. Leach v. Harris, 69 N. C. Rep. 532."
*188An agreement that an award shall be a rule^or judgment) of Court, is merely an agreement to confess judgment according to the award when it shall be made. If such agreement be made by persons having no suit in Court, respecting the matters referred, a Court (in this State at least) will not compel performance of the agreement by attachment, because the parties have not put themselves under its jurisdiction, but will leave them to their remedy by action on the agreement. Alexander v. Burton, 1 D. & B. Eq. 469. If, however, such an agreement is made between the parties to a suit, the Court - having jurisdiction over the persons, and the subject matter will compel the parties, by attachment, to perform the agreement, by confessing judgment according to the award ; or, as a more direct way to the same end, will (in this State at least) enter judgment according to the award. Cunningham v. Howell, 1 Ired. 9.
The effect of a reference to arbitrators, is very different from that of a reference under the Code. Arbitrators may choose an umpire; they are not bound to find the facts separately from their conclusions of law; they are not bound to decide according to law. Their award may be entirely general, as for example, that plaintiff recover $-and costs, or that defendant go without day, &c., Leach v. Harris, ante. Ordinarily, if their award be within their powers, and unaffected by fraud, mistake, surprise, or irregularity, the Judge has no power over it, except to make it a rule of Court, and enforce it according to the course of the Court.
If, however, the arbitrators think proper, they may find the facts, and the law separately. And as it thus appears that they intended to decide according to law, if they clearly mistake the law, the Judge may set aside the award, and perhaps in some cases give such judgment as they ought in law to have given. Morse Arb. & Award, 292. Boston Water Power Co. v. Gray, 6 Metc. (Mass.) 131; Ryan v. Blount, 1 Dev. Eq. 382; Leach v. Harris, ante.
We think it clear that in the present case the reference was *189to arbitrators to make an award. The only part of the award which we think it material to refer to, is this. The arbitrators find that during the time in which the defendant was running up the account sued on, James W. Patton (not a member of the firm of Patton & Alexander) was indebted to the defendant in an amount larger than that sued for, and it was agreed between J. W. Patton and the defendant, and James A. Patton (a member of the firm) that defendant should buy goods from the firm from time to time, and that they should be charged to J. W. Patton. Under this agreement the goods sued for were purchased. The arbitrators award that defendant go without day, &c. It is objected that the conclusion of law is not supported by the facts. Ye think it is. It did not appear that Patton, the partner, had any interest in the debt from J. A. Patton to the defendant, or that he was acting in any way for his individual advantage. Surely one partner may sell goods of the firm to one person on the credit of another. Nothing is more common.
Pee Cueiasi. J udgment affirmed.