Sidor som bilder

19. It shall be the duty of the party by whom the rule of reference shall have 16 June 1836 § 16. been entered, to procure from the prothonotary a certified copy of the record con- P. L. 719. taining the names of the arbitrators, and the time and place of their meeting, and Certified copies of to serve a copy of the same on each of the arbitrators, and also on the opposite record to be served party, if he reside within the city or county, and if not, upon his agent or attorney, and opposite party. giving at least ten days' notice previous to the day of meeting.

on the arbitrators

20. In all cases where arbitrators shall be chosen in pursuance of the provisions 28 March 1877 § 1. of the act of 16th of June, Anno Domini 1836, a certified copy of the record, con- P. L. 28. taining the names of the arbitrators, and the time and place of meeting, shall be Service of notice served upon the opposite party, his agent or attorney; (g) but if said party have on parties. no agent or attorney, then it shall be lawful to serve said certified copy upon the opposite party, in the same manner as a writ of summons in a personal action is now served:(h) Provided, That a certified copy of the record, containing the names of the arbitrators, and the time and place of meeting, shall be served at least ten days before the time of meeting.

(3.) Of the proceedings before the arbitrators.

21. If only one of the parties shall attend on the day appointed for the meeting 16 June 1836 § 17. P. L. 721. of the arbitrators, and the arbitrators, or one or more of them, shall attend, the proceedings shall be as follows: Proceedings where I. If the party attending be the party by whom the rule of reference was only one party attends. entered, proof shall be made that due notice of the time and place of meeting was Proof of notice to given to the opposite party, as hereinbefore provided.

be made.


II. If the party absent shall have been prevented from attending by sickness, or When arbitrators other unavoidable cause, and notice thereof shall be given to the arbitrators or to adjourn the arbitrator present, of the sufficiency of which cause such arbitrators or arbitrator shall judge, an adjournment shall take place to such subsequent time as the said arbitrators or arbitrator shall fix.

22. If the whole number of arbitrators shall not attend on the day appointed for the meeting, the proceedings shall be as follows: (i)

Ibid. § 18.

tors do not attend.

I. Proof shall be made that due notice of the time and place of meeting was Where all arbitragiven to the arbitrator or arbitrators absent, as hereinbefore provided.(k) II. If both parties be present, either in person or by their agents or attorneys, Vacancies may be the place of the arbitrator or arbitrators absent may be supplied by the parties filled by consent aforesaid, if they can agree upon suitable persons.

of parties.

III. If the parties shall be unable to agree, the arbitrator or arbitrators present or the arbitrators shall appoint a suitable person or persons to fill the vacancy.

IV. If any one of the parties be absent, and no sufficient reason be assigned as aforesaid, for such absence, it shall be lawful for the arbitrators or arbitrator present to appoint a suitable person or persons to fill the vacancy.

present may appoint.

Ibid. § 19.

23. When the whole number of the arbitrators shall be assembled, (1) they shall be sworn or affirmed, justly and equitably to try all matters in variance, sub- Arbitrators to be mitted to them, which oath or affirmation may be administered to them by any sworn or affirmed. person having authority to administer oaths or in the absence of such person, by one of their number.

(4.) Of the award.

P. L. 722.

24. As soon as the arbitrators shall have heard the evidence and allegations of 16 June 1836 § 20. the parties, they shall proceed to determine the matters in controversy, submitted to them, and they shall make out their award, (m) which shall be signed by all, or How award to be a majority of them, and shall transmit the same to the prothonotary, within seven days after they shall have agreed upon the same.(n)

(g) Service may be made upon the attorney of a resident defendant. Wilcox v. Payne, 88 P. S. 154; overruling Navel v. Elliott, 5 W. N. C. 35.

(h) This notice must be given, although the attorney of the opposite party attended when the appointment was made. Henry v. Norwood, 4 W. 347. Carter v. Slocum, 2 Phila. 401. Unless the party accepted service. Kirk v. Eaton, 10 S. & R. 103. The service must be a personal one, if the defendant reside within the county. Rivers v. Walker, 1 Dall. 81. Finch v. Lamberton, 62 P. S. 370. McCowen v. Stephens, 1 Luz. L. Obs. 3. But see infra 20. An appearance before the arbitrators, for the purpose of objecting to the want of legal service, does not cure the defect. Carter v. Slocum, 2 Phila. 401.

(i) One arbitrator attending may adjourn. Steeley v. Irrine, 6 S. & R. 128. And at such adjourned meeting (notice having been given to the absent party), others may be appointed. Stiles v. Hanover Turnpike Road, 10 S. & R. 286. An arbitrator present, but declining to act, may be considered absent. Ibid. If the party attended at the appointment of the arbitrators, he is not entitled to notice of the adjournment. Eckert v. Sheets, 6 S. & R. 275. Brown v. Brashier,


2 P. & W. 114. Arbitrators may adjourn, before being sworn. Boone v. Reynolds, 1 S. & R. 231. Eckert v. Sheets, 6 S. & R. 275. But after they have all met and been sworn, vacancies cannot be supplied. Wilson v. Cross, 7 W. 495. No authority is given to supply a second vacancy. Mitchell v. Wilhelm, 6 W. 259. Nor can one arbitrator appoint two others. Wilson v. Cross, 7 W. 495.

(k) This must be shown by the record. Smith v. Bartolett, 18 Leg. Int. 110.

(1) If the arbitrators do not meet on the day appointed, their proceeding afterwards is irregular, unless by consent. Weir v. Johnston, 2 S. &. R. 459.

(m) The award should be as certain as a verdict. White v. Jones, 8 S. & R. 349. Kitchen v. Funston, 14 Ibid. 337. Biggs v. Funk, 5 W. 478. But they may award anything that a jury could, under any form of pleadings. Le Barron v. Harriott, 2 P. & W. 157. Gram's Appeal, 4 W. 44. They cannot award a nonsuit. Miller v. Miller, 5 Binn. 62. As to the certainty requisite in an award, see Santee v. Keister, 6 Binn. 36. Kelly v. Dougherty, 1 S. & R. 434. Burkholder v. McFerran, 3 Ibid. 421. Sicard v. Peterson, Ibid. 468. Commonwealth v. Maris, 4 Ibid. 81. Spalding v.

16 June 1836 § 21. P. L. 722.

25. Arbitrators appointed as aforesaid, shall not be entitled to receive any daily pay, or other compensation, unless they make their report and transmit the same Award to be filed to the prothonotary within seven days after they shall have agreed upon the within seven days. same.(o)

Ibid. § 22.

How award made

in case of the death, &c., of one of the


Ibid. § 23.

Ibid. § 24.

To have the effect
of a judgment.

Ibid. § 25.
Nonsuit after
Ibid. § 26.

For what causes
awards may be set

21 April 1840 § 1. P. L. 499.

Lien of awards.

26. Provided, That if one of the arbitrators aforesaid shall die, or become incapable, or shall refuse to attend to the duties of his appointment, or shall remove or depart from the county, it shall be lawful for the remaining arbitrators to proceed with the cause, and make an award, if they can agree upon the same; but if they cannot agree thereupon, (p) it shall be lawful for them to appoint an umpire, and the umpire so appointed, together with the said arbitrators, shall proceed with the cause and make an award.

27. It shall be the duty of the prothonotary receiving such award, forthwith to enter the same of record, in the proper dockets.(q)

28. Every award so entered shall have the effect of a judgment, (r) with respect to the party against whom it is made, from the time of the entry thereof, and shall be a lien upon his real estate, until reversed upon appeal, (s) or satisfied according to law.(t)

29. Provided, That the court may, after appeal, allow the plaintiff to suffer a nonsuit, with like effect as if the cause had not been referred as aforesaid, if the special circumstances of the case shall appear to require it.(u)

30. It shall be lawful for the court to set aside an award of arbitrators, on due proof

I. That the arbitrators misbehaved themselves in the course of the hearings before them.(v)

II. That the award was procured by corruption, or other undue means. (w)

31. No award of arbitrators now entered, or hereafter to be entered, shall continue a lien upon the real estate of the party against whom the same shall have been made for a longer period than five years from the day on which such award shall be or shall have been entered, notwithstanding any appeal which may have been entered therefrom, unless revived within that period according to the provisions of the act to which this is a supplement, and the supplement to the same, passed March 26th, Anno Domini 1827.

Irish, Ibid. 322. Shoemaker v. Meyer, Ibid. 452. Nicholas v. Wolfersberger, 5 Ibid. 167. Berentz v. Bishop, Ibid. 179. Murray v. Bruner, 6 Ibid. 276. Wood v. Earl, 5 R. 44. Henness v. Meyer, 4 Wh. 358. Bachman v. Reigart, 3 P. & W. 270. Etter v. Edwards, 4 W. 63. Brown v. Long, 4 Clark 436. Bowen v. Mattison, 1 Luz. L. Reg. 45.

(n) The court will compel the arbitrators, by rule, to file their award. Monohan v. Strenger, 1 Phila. 376.

(0) The omission to comply with the provisions of this section does not vitiate the award. Boone v. Reynolds, 1 S. & R. 231.

(p) They can only appoint an umpire in case of disagreement, after a hearing of the cause. Sickel v. Keach, 4 Luz. L. Obs. 39.

(q) Leaving the award with the prothonotary, out of office-hours, is not a sufficient entry. Sims v. Hampton, 1 S. & R. 412. The court may re-commit the award, for the correction of a clerical error. Heslop v. Bush, 80 P. S. 70.

(7) It is not necessary that judgment be formally entered; the award, when filed, has the effect of one. Richter v. Chamberlin, 6 Binn. 35. Post v. Sweet, 8 S. & R. 391. From the time of its entry on the docket. Ebersoll v. Krug, 3 Binn. 528. And creates a lien on the lands of the defendant. Ramsey's Appeal, 4 W. 71. Dietrich's Appeal, Ibid. 208. For the period of five years, by act 21 April 1840, infra 31. But not subsequently accruing costs. Christy v. Crawford, 8 W. & S. 99. Or where the plaintiff appeals from an award in his own favor. Lentz v. Lamplugh, 12 P. S. 346. On an award in favor of the defendant, execution may issue, without a sci. fa. O'Donnell v. Lynch, 1 W. & S. 283. An award in ejectment will not bar a second ejectment. Ives v. Leet, 14 S. & R. 301. Unless brought to compel specific performance. Seitzinger v. Ridgway, 9 W. 496. This was altered by act 5 May 1841, § 5, P. L. 446; which, however, is repealed by act 30 April 1850, § 5; except as to actions then pending; act 8 May 1850, § 13, P. L. 716. And see act 21 April 1846, § 1, P. L. 424.

(s) On the reversal of an award, the supreme court will not award a venire de novo. Ebersoll v. Krug, 5 Binn. 51. But this was remedied by act 23 February 1824, P. L. 27.

(t) The plaintiff's receipt in full for debt, interest and costs, before the expiration of the time allowed for an appeal, will not preclude the issuing of an execu

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tion to collect the officers' fees. Ellsler v. Ellsler, 14 Leg. Int. 197.

(u) If the plaintiff suffer a nonsuit after an appeal, the award is thereby defeated, and is irrecoverable by sci. fa. against the plaintiff. McKennan v. Henderson, 4 W. & S. 370. And see Dubois v. Bigler, 95 P. S. 203. It is not sufficient reason to allow the plaintiff to suffer a nonsuit, without consent, that the arbitrators erred in law, nor that the plaintiff wishes to bring another suit, and have another reference. Girard Bank v. Schuylkill Bank, 8 W. & S. 242.

(v) See Rheem v. Allison, 2 S. & R. 113.

(w) For matters not appearing in the proceedings, and which took place after the jurisdiction of the arbitrators had attached, the only remedy is by appeal. Thompson v. White, 4 S. & R. 135. Wilson v. Hamilton, Ibid. 238. Wynn v. Bellas, 34 P. S. 160. For other causes for which the courts will set aside an award, see McEntire v. McElduff, 1 S. & R. 22. Post v. Sweet, 8 Ibid. 391. Negley v. Stewart, 10 Ibid. 207. Ranck v. Becker, 12 Ibid. 421. Rush v. Good, 14 Ibid. 228. Rogers v. Playford, 12 P. S. 184. The court will not set aside an award, on the ground that the arbitrators erred in rejecting evidence; the statute gives them the power of deciding on the competency of evidence as well as its credibility. Commonwealth v. La Fitte, 2 S. & R. 106. And for a plain mistake in fact or of law, the only remedy is by appeal. Walls v. Wilson, 28 P. S. 514. Wynn v. Bellas, 34 Ibid. 160. Unless an application be made to set aside the award, no writ of error lies. Waage v. Weiser, 5 Wh. 307. Sheets v. Rudebaugh, 2 R. 149. If the court below err, a writ of error will lie to their decision. McCord v. Scott, 4 W. 12. Etter v. Edwards, Ibid. 63. Wilson v. Cross, 7 Ibid. 495. Erie Bank v. Brawley, 8 Ibid. 530. But a refusal to set aside an award, on the ground of misbehavior, is not subject to revision on a writ of error; it is equivalent to the refusal of a motion for a new trial. Bemus v. Clark, 29 P. S. 261. Where, however, it is agreed, that the award shall be final and without appeal, the striking of it off, is in the nature of a final judgment, to which a writ of error will lie. Wynn v. Bellas, 34 P. S. 160. The court can set aside proceedings under the arbitration law, at any stage, if the rule of reference has been irregularly or improperly entered. Taggart v. For, 1 Gr. 192. An award, though erroneous in point of law, cannot be impeached collaterally. Zeigler v. Zeigler, 2 S. & R. 286.

32. This act shall not be construed to affect the lien of any award which may 21 April 1840 § 2. now be a lien on any real estate, according to the existing laws of this common- P. L. 499. wealth: Provided, The lien of such award shall be revived by scire facias, or agree- Existing liens not ment of the parties, filed and docketed according to the provisions of the 1st to be affected, if section of the said supplement, passed March 26th, Anno Domini 1827, as afore- duly revived. said, within three years from the passage of this act.(x)

(5.) Of the appeal.

P. L. 723.

33. Either party may appeal (y) from an award of arbitrators, to the court in 16 June 1886 § 27. which the cause was pending at the time the rule of reference was entered, under the following rules, regulations and restrictions, viz. :(z)

Parties may appeal

I. The party appellant, his agent or attorney, (a) shall make oath or affirma- from award. tion, (b) that it is not for the purpose of delay such appeal is entered, but because Appellant to make he firmly (c) believes injustice has been done."(d)


II. Such party, his agent or attorney, shall pay all the costs that may have Pay costs. accrued in such suit or action.(e)

III. The party, his agent or attorney, shall enter into the recognizance herein- And enter recogafter mentioned.


IV. Such appeal shall be entered, and the costs paid, and recognizance filed, Within twenty within twenty days after the day of the entry of the award of the arbitrators on days. the docket.(g)

Ibid. § 28.

34. Provided, That if the party against whom any award shall be made as aforesaid, not being the party by whom the rule of reference was taken out, shall When poor perapply by petition to a judge of the court in which such action is depending, and sons may appeal shall therein set forth, that by reason of poverty, he is unable to pay the costs of without paying the suit, as aforesaid, and shall make affidavit of such facts, it shall be lawful for costs. such judge, after due notice to the opposite party, if he shall be satisfied of the truth of the statements in such petition, to make an order, that the appeal of such party in the case shall be good, although the costs shall not be paid by him, as


Ibid. § 29.

35. If the plaintiff be the appellant, he shall, by himself, his agent or attorney, with one or more sufficient sureties, be bound in recognizance to the defendant, Condition of plain[the condition (h) of which shall be, that if he shall not, in the event of the suit, tiff's recognizance.

(z) The rest of this section is repealed by act 11 February 1841, § 1, P. L. 24.

(y) For the effect of an appeal by one of several defendants, see La Fitte v. La Fitte, 2 S. & R. 107. Lentz v. Stroh, 6 Ibid. 34. Reed v. Garvin, 7 Ibid. 354. Guhr v. Chambers, 8 Ibid. 157. Rush v. Good, 14 Ibid. 226. Hills v. Elliott, 16 Ibid. 56. Whitehill v. Whitehill, 17 Ibid. 295. Hartman v. Stahl, 2 P. & W. 223. Lyon v. Allison, 1 W. 161. Sterrett v. Ramsey, 2 W. 91. Ramsey's Appeal, 4 W. 71. Anderson v. Levan, 1 W. & S. 334. Rice v. Foster, 2 Ibid. 58. Bensell v. Boyd, 2 M. 296. Bonner v. Campbell, 48 P. S. 286. Heine v. Reading Ind. Man. Co., 2 Wood. 151. The right of appeal may be waived. Bingham's Trustees v. Guthrie, 19 P. S. 418.

(z) Filing a recognizance, paying costs, and making the proper affidavit, do, of themselves, constitute an appeal. Jones v. Badger, 5 Binn. 461.

(a) The oath may be made by the attorney-at-law. Anderson v. Fitler, 3 S. & R. 1. Whitehill v. Whitehill, 17 Ibid. 295. By one who styles himself the appellant's agent. Duffie v. Black, 1 P. S. 388. Or by the equitable plaintiff. Conway v. Fire Insurance Co., Bright. 64. An administrator must make the oath. O'Connel v. Mortow, 11 P. S. 398. And some person on behalf of a municipal corporation. Monaghan v. Philadelphia, 28 P. S. 207.

(b) If the prothonotary neglect to attest the jurat, it is fatal to the appeal. Shortle v. Stockton, 7 W. 526. But see Maples v. Hicks, Bright. 57. The oath may be made in another county. Duffie v. Black, 1 P. S. 388.

(c) The oath must contain the word "firmly," or some equivalent term. Thompson v. White, 4 S. & R. 135. Proper v. Luce, 3 P. & Ŵ. 65.

(d) The act does not require the oath to be in writing. Ross v. Dysart, 24 P. S. 395. Wilson v. Kelly, 81 Ibid. 411. Treichler v. Bower, 1 Wood. 219. The oath may be made before a justice. Gakel v. Gletz, 6 Luz. L. Reg. 173.

(e) If the appellant pay the costs taxed by the prothonotary, the court will not strike off the appeal, although there afterwards appear to be more costs due. McKeown v. Boudinot, 1 Bro. 150. Fraley v. Nelson, 5 S. & R. 234. Stewart v. Jewell, 11 Ibid. 359. Columbia Bank v. Bletz, 5 Luz. L. Reg. 219. Williams v. Hazlep, 14 P. S. 158. Payment of the omitted

costs may be enforced by attachment. Fraley v. Nelson, 5 S. & R. 234. Carr v. McGovern, 66 P. S. 457. Flamery v. Wise, 2 Wood. 431. But it is error to refuse to strike off an appeal, where all the taxed costs have not been paid. Walter v. Bechtol, 5 R. 228. Where double costs are given, they need not be paid on appealing from an award; payment of single costs will satisfy the act. Hartley v. Bean, 1 M. 168. If the plaintiff sue in the common pleas on a cause of action within the jurisdiction of a justice, the defendant may appeal from an award without payment of costs. Louer v. Hummel, 21 P. S. 450. Kerbaugh v. Curry, 2 Phila. 206. But see Lutz v. Weidner, 1 Wood. 385. The costs must be actually paid, the prothonotary has no right to take a note for them. Ellison v. Buckley, 42 P. S. 281. Nor is the law satisfied, by charging them to counsel. Carr v. McGovern, 66 P. S. 457. Lagen_v. Cadwell, 34 Leg. Int. 331. And see Myers v. Brown, 38 Ibid. 72. Walker v. Graham, 74 P. S. 35. But if the record show a payment of costs, it is not competent to contradict it by proof of a payment by check. Rice v. Constein, 89 P. S. 477. Delong v. Allentown R. R. Co., 1 Wood. 191. If the appellee take out of court the costs paid in by the appellant, it is a waiver of any defect in the appeal. Proper v. Luce, 3 P. & W. 65. Maloney v. Savage, 1 Luz. L. Obs. 14. Dougherty v. Shimer, 1 Luz. L. Reg. 44. A notice to the prothonotary, not to pay over the costs to the appellee, is no ground for quashing the appeal. McCulla v. Opple, 3 Luz. L. Obs. 87. Duffie v. Black, 1 P. S. 388. (g) One day is to be counted exclusive. Sims v. Hampton, 1 S. & R. 412. Frantz v. Kaser, 3 Ibid. 395. Mayes v. Jacoby, 8 Ibid. 526. Goswiler's Estate, P. & W. 200. Barber v. Chandler, 17 P. S. 50. Smaltz v. Lake, 2 Phila. 245. And if the last day fall on a Sunday, the party has until the following day to complete his appeal. Sims v. Hampton, 1 S. & R. 412. Harker v. Addis, 4 P. S. 515. Arms v. Leaman, 4 Clark 84. If the prothonotary refuse to enter an appeal to which the party is entitled, the court may direct it be done nunc pro tune. Fritz v. Evans, 13 S. & R. 15. Noble v. Houk, 16 Ibid. 421. Wallace, 3 P. & W. 441. If the bail be excepted to, after the expiration of the twenty days, new bail may be given. Davis v. Black, 12 S. & R. 327.

Clark v.

(h) The condition of the recognizance on an appeal

P. L. 728.

16 June 1836 § 29. recover a sum greater, or a judgment more favorable to him than the award of the arbitrators, he shall pay all costs that shall accrue in consequence of said appeal, and one dollar for every day lost by the defendant in attending on such appeal.]

Ibid. § 30.

Condition of defendant's recognizance.

Ibid. § 31.

20 March 1845 § 1.
P. L. 188.
Bail on appeal
from award.

25 April 1850 § 12. P. L. 571.

36. If the defendant be the appellant, he shall, by himself, his agent or attor ney, with one or more sufficient, sureties, [in the nature of special bail,] be bound in recognizance to the plaintiff, (i) [the condition of which shall be, that if the plaintiff, in the event of the suit, shall obtain a judgment for a sum equal to or greater, or a judgment as, or more favorable than the award of the arbitrators, the said defendant shall pay all the costs that may accrue in consequence of the said appeal, together with the sum or value of the property or thing awarded by the arbitrators, with one dollar for every day that shall be lost by the plaintiff in attending to such appeal, or in default thereof, that the said defendant shall be surrendered to the jail of the proper county.]

37. Provided, That in all cases in which executors, administrators, (k) or other persons suing or sued in a representative character, () or minors, shall be the party appellant from an award, the appeal shall be good, without the payment of costs, or entering in recognizance as aforesaid, [if such appellant shall not have taken out the rule of reference.]

38. In lieu of the bail heretofore required by law, in the cases herein mentioned, the bail in cases of appeal from the judgments of aldermen and justices of the peace, and from the awards of arbitrators, shall be bail absolute, in double the probable amount of costs accrued and likely to accrue in such cases, with one or more sufficient sureties, conditioned for the payment of all costs accrued or that may be legally recovered in such cases against the appellants. (m)

39. So much of the 1st section of the act passed on the 20th day of March 1845, entitled "An act concerning bail and attachments," as pertains to appeals from the In case of corpora- wards of arbitrators, shall from henceforth be construed to extend to all such appeals, whether made by persons natural or artificial.(n)


8 May 1852 § 1. P. L. 541.

40. The 12th section of the act of the 25th of April 1850, relating to appeals from the award of arbitrators, shall not be construed so as to embrace executors, By executors, &c. administrators or other natural persons suing or sued in a representative character.(o)

18 April 1846 § 2. P. L. 303.

Costs to be still paid on appeal.

16 June 1836 § 32. P. L. 724.

41. The 1st section of the act, entitled "An act concerning bail and attachments," shall be so construed as to require the payment by the appellant, to the prothonotary, of all costs which have previously accrued, whenever an appeal is entered from an award of arbitrators, excepting where executors, administrators, guardians or trustees are appellants.(p)

42. The costs to be paid by the appellant, as hereinbefore required, may nevertheless be taxed in the appellant's bill, and recovered of the adverse party, if, in To be taxed in ap- the event of the suit, the appellant is entitled to recover costs, agreeably to the pellant's bill. provisions of this act.

Ibid. § 33.

Appeal not to be withdrawn, unless by consent.

Ibid. § 34. Executions to

43. No appeal as aforesaid shall be withdrawn, (q) without the consent, in writing, of the opposite party first had and obtained, and it shall be the duty of the prothonotary to whom such written consent may be delivered, to file the same among the records in the cause.

44. If the appeal as aforesaid shall not be entered within the time herein before limited, (r) it shall be the duty of the prothonotary, at the request of the party issue on judgment in whose favor the award shall have been made, to issue execution, or such other process as may be necessary and proper, to carry into effect the judgment entered upon such award, subject, nevertheless, to the provisions of the law concerning the stay of execution upon judgments.

upon award.

is entirely changed by the act 20 March 1845, § 1, infra 38; the numerous decisions on the old law have, there fore, been omitted; they will be found collected in 1 Wh. Dig. tit. "Arbitrament and Award.”

(i) If new parties plaintiff be added, by amendment, after an appeal, there can be no recovery on the recognizance. Fullerton v. Campbell, 25 P. S. 345. (k) They are only protected when they necessarily sue or are sued, in a representative character. Insurance Co. v. Hewes, 5 Binn. 508. Barnhart v. Painter, 2 R. 78. Masterson v. Masterson, 5 Ibid. 137. Foulk v. Brown, 2 W. 209. Pugh v. Ottenkirk, 3 W. & S. 170. And they cannot appeal without making oath that it is not intended for delay. McConnel v. Morton, 11 P. S. 398.

(7) The United States may appeal without costs, affidavit or security. United States v. Barber, 17 S. & R. 348. So may a municipal corporation. Robinson v. Jefferson County, 6 W. & S. 16. Pottsville v. Curry, 32 P. S. 443. Except as to the affidavit. Monaghan v. Philadelphia, 28 P. S. 207. Watson v. Chester, 2 Del. 382. This section embraces the trustees of an insolvent, and the sequestrators of a corporation. Turnpike Co. v. McAnulty, 4 W. & S. 293. Assignees

in bankruptcy. Morss v. Gritmann, 10 Phila. 579. It is extended to assignees under voluntary assignments for the benefit of creditors by act 13 June 1840, § 10, "Trustees," 71. And by act 27 March 1833, § 1, guardians may appeal without oath, security or payment of costs; see "Decedents' Estates," 47.

(m) This section supplies §§ 29-30 of act 16 June 1836, so far as relates to the condition of the recognizance: and, therefore, a recognizance conditioned for the payment of a per diem allowance to the appellee, under the act, is void. Shuff v. Morgan, 7 P. S. 125. But it does not excuse the appellant from payment of costs. Merritt v. Smith, 2 Ibid. 161. And see infra 41. It does not embrace municipal corporations. King v. District of Penn, 1 Phila. 402-3.

(n) Delong v. Allentown R. R. Co., 1 Wood. 191. (0) Miller v. Tyson, 1 Wood. 216.

(p) This section gives to persons suing or being sued in a representative character, the right to appeal without payment of costs, though they took out the rule of reference. Murray v. Sharp, 72 P. S. 360. Zerbe v. Miller, 1 Pears. 290.

(q) See ante, p. 128, note u.

(r) No execution can issue until the expiration of

(6.) Miscellaneous proceedings.

45. If the party by whom a rule of reference shall be entered, his agent or 16 June 1836 § 36. attorney, shall fail to cause a copy of the certified rule, or of the record containing

P. L. 724.

the names of the arbitrators, and of the time and place of meeting, to be served, Penalty for neglect as is herein before required, he shall, for every such default, forfeit and pay the to serve copy of sum of twenty-five dollars,(s) one-half to the use of the county, and the other half rule and certificate. to the use of the person who will sue for the same: Provided, That nothing herein contained shall be deemed to deprive the court of the right of setting aside any award obtained without due notice, as aforesaid, or shall interfere with the right of the party to recover such damages as he may have sustained.

46. If any person appointed an arbitrator, and residing within the county, Ibid. § 87. having received due notice of his appointment, shall fail to attend and take upon Penalty on arbihimself the duties of the appointment, unless prevented by sickness, or other trator for neglect unavoidable cause, he shall, for every such default, forfeit and pay the sum of two of duties of dollars, to be recovered by either party, who shall first sue for the same: Provided, That no arbitrator shall be compelled to serve on more than ten appointments in

any one year.


Ibid. § 38.

47. On the trial of any cause, after an appeal from an award of arbitrators, it shall not be lawful for the appellant to produce as evidence in court any books, Documents withpapers or documents which he had in his power to produce at the time of the held from arbitraarbitration, and withheld from the arbitrators, after being required by the arbi- tors not evidence. trators to produce the same. (t)

Ibid. § 85.

Proceedings where

48. In all suits or actions in which the prothonotary of the court shall be a party, or in which he may be interested, the duties hereinbefore required to be performed by him shall be performed by the recorder of deeds, the clerk of the prothonotary is orphans' court, the sheriff, coroner or treasurer of the same county.


P. L. 521.

49. That so much of the act of assembly, passed June 16th, Anno Domini 1836, 1 May 1861 § 1. entitled "An act relating to reference and arbitration," as relates to compulsory arbitration in the city and county of Philadelphia, be and the same is hereby Not to extend to repealed. Philadelphia.

III. General directions respecting referees and arbitrators.

(1.) Restrictions on right to arbitrate.

50. Nothing in this act contained, shall be taken to authorize the entering a 16 June 1836 § 39. rule of arbitration in either of the following cases, viz.:

I. Appeal to register's court.

II. Issues directed to any court to ascertain a fact or facts.

III. Actions upon bail-bonds, and recognizances.

IV. Actions upon penal statutes.

V. Actions brought by the commonwealth, unless such rule be entered by the

attorney-general, or his deputy, with his consent in writing.

(2.) Powers and duties of referees and arbitrators.

P. L. 725. Certain causes not to be referred.

51. Referees and arbitrators in every case, as aforesaid, or a majority of them, 16 June 1836 § 40. shall have power

I. To require from either party the production of all such books, papers and documents as they shall deem material to the cause.

II. To judge of the competency and credibility of witnesses, and the propriety

of admitting any written evidence that may be offered. III. To administer oaths or affirmations to witnesses.

IV. To adjourn their meetings from day to day, or for a longer time, and also

from place to place, if they shall think proper. (u)

V. To decide both the law and fact that may be involved in the cause submitted to them.

P. L. 725.

Powers of referees

and arbitrators.

And each of the arbitrators shall have power to issue subpoenas to witnesses, (v) To issue subpœnas to appear before them, and if any person who shall have been duly subpoenaed to and attachments. attend as aforesaid, shall neglect or refuse to attend, a majority of the arbitrators shall have power to issue an attachment against such person, according to the practice of the courts.

the twenty days. Woods v. Connor, 6 P. S. 430. But the award may be transferred to another county, under the act 5 May 1876, so as to create a lien.

(8) An action for the penalty may be sustained, without proof of damage, and although the rule of reference has been stricken off, before suit brought for the penalty. Dunlap v. McKee, 25 P. S. 84. If the rule of reference were entered before filing a declaration, it was void; and no action can be maintained for the penalty. Cummin v. Wilson, 2 W. 13. The fact that the party had actual notice, is no defence to an

action for the penalty. Hottenstine v. Auten, 43 P. S.


(t) The evidence must have been voluntarily withheld. Barclay v. Hughes, 1 M. 19. Brisbane v. Mitchell, 8 S. & R. 423. And have been in the exclusive power of the appellant. Pearce v. Seminary, 2 W. 340. It does not apply to a case where the appellant withdrew his evidence, after it had been given to the arbitrators. Ibid.

(u) See ante, p. 127, notes i and l.
(v) See infra 59.

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