¶1The point presented for the opinion of this court is, whether the mere submission of a cause to arbitration, the arbitrators never taking or consenting to take upon themselves the burden of the submission, operates as a discontinuance of a suit pending in court. The distinction that the plaintiff in error makes between a submission never acted on by the arbitrators, and one which has been followed up by an award or hearing by the arbitrators, does not appear to have been recognized by the courts, nor do I see any good reason for making such distinction. The general position is, that a submission of a cause pending in court is a discontinuance of the suit. (18 Johns. R. 22. 6 Cowen, 399. 1 Wendell, 314. 17 Mass. R. 591.) The reason that the submission operates as a discontinuance, is not because the subject of the suit is otherwise disposed of than by the decision of the court in which it was prosecuted ; but because the parties have selected another tribunal for the trial of it. The court will not look to the proceedings of that tribunal to determine whether the suit is gone beyond its jurisdiction. It is sufficient that the parties have selected their arbitrators, and concluded their agreement to submit to them. It is this agreement which withdraws the cause from the court, and effects the discontinuance of the suit.
¶2Judgment for the defendant in error.