The opinion of the court was delivered by

The distinction between'a reference 'of all matters in dispute between the parties in the cause/' and a reference 'of all matters in dispute in the cause between the parties,’ has been thought too nice for the general understanding; and to effect the object of the former more certainly; it has been recommended by judge Buller, that the reference be 'of all matters in variance, between the parties’ omitting the words 'in the cause,’ and of the latter, that it be 'of all matters in dispute in the cause omitting the Words 'between the parties:’ thus making the distinction between the parties and the cause more striking. Now if a compliance with this recommendation can serve to make the meaning of the parties more palpable, we have the benefit of it, the agreement containing a submission "of all matters in variance in the above suit,” without a word being said about the parties. The submission is indeed entered on the docket as "of all matters in variance in the suit between the parties;” but as the prothonotary had no authority to modify the.agreement, the original paper filed' as the ground of the entry, must, in case of a discrepance, be allowed to prevail. Even if the matter stood on the entry, the power of the arbitrators would be restrained by any reasonable construction, to matters in the cause. The action entered was by the agreement entitled in case; and an intent is therefore manifest to submit nothing that might not be adjudicated under á declaration in that form. But not only is money awarded in satisfaction of the costs of a former action, as well as damages sustained from an intrusion into the plaintiff’s ground, but an alley, a pump and a well, are directed to be enjoyed by the parties in common. It would require little to shew that these matters could not be joined in any form of action. *273But another ingredient in this reference shews conclusively the nature of the matters intended to be r. fc ■ •'Hod, the proceedings were declared to be under the act of ISIO, which in terms restrains the submission to “matters in'vn’N ca in such suit or action between the parties;” and hence it was held in Shoemaker v. Meyer, 4 Serg. & Rawle, 452, that a variance between the terms of submission expressed by the parties, and those prescribed by the act, is immaterial, as the arbitrators must be guided by the latter. In Steigleman v. Wolfersberger, 5 Serg. & Rawle, 167, where the same point was ruled, it was held, that as the arbitrators perform the functions of both court and jury, the inquiry is, whether they have confined themselves to the matters in the cause, and done what a court and jury might do. An award, then, is not to be sustained where a verdict finding the same matters could not. By no other construction could the provision which contemplates a comparison between the award and a verdict on appeal, be rendered effective, as it would be impossible to say which of the two was more favorable to tho appellant in order to determine the question of costs. Besides the award is to have the effect ol a judgment till abated on appeal, but how could it be so abated, if the'arbitrtators were allowed to adjudicate what could not be review-, ed in a trial according to the course of the common law? It is utterly impossible by any joinder of counts to enable a jury to find a bill of costs for the plaintiff as well as damages for building on his ground, and at the same time to settle the right, and direct the enjoyment in common of an alley, a pump and a well. Whatever, then, be the form of the action, it is clear the arbitrators determined matters that are foreign to the cause, and transcended the power* delegated to them by the submission and the law.

Judgment reversed.