Mann v. Alberti

• Decision Date: 26 December 1809
• Parties: MANN v. ALBERTI.
• Court: Pennsylvania Supreme Court

2 Binn. 195

MANN v. ALBERTI.

Supreme Court of Pennsylvania.

December 26, 1809

After a cause has been once decided either by a jury, a justice of the peace, or by referees, and is remaining in court for decision on a matter of law, it is not in the power of either party to submit it to arbitration under the act of 29th March 1809.

The defendant in a suit before a justice of the peace, is entitled to enter special bail, to obtain a stay of execution, after the twenty days allowed for an appeal have expired; provided an execution has not already issued.

IN this cause a judgment for a sum exceeding sixty dollars, was rendered against the defendant by an alderman of the city on the 22d July 1805; and after the expiration of twenty days, but before execution had issued, the defendant offered to enter special bail, to obtain a stay of execution for nine months, agreeable to the 9th section of the act of 28th March 1804, 5 St. Laws 390. The alderman refused to take the bail, and on the 1st November 1805, issued execution.

The record being then removed to this court by certiorari, the defendant filed an exception to the execution. He afterwards gave notice of his intention to submit it to arbitration under the act of 29th March 1809, 9 St. Laws 125, to which the plaintiff objected; and it was now agreed to discuss together the validity of the exception, and the defendant's right to the arbitration.

Franklin (attorney general) for the plaintiff, contended that the provisions of the arbitration law embraced exclusively questions of fact, which had not undergone a trial; and that all its details negatived the arbitration of a point of law which had already been decided by the magistrate. Upon the exception to the execution, he said, that although no time was expressly limited by the act, for the entering of special bail, yet as only twenty days were allowed for an appeal, at the expiration of which an execution might issue, it was the defendant's duty at all events to enter it within that time; indeed from the case of Calvert v. Pitt ^[a] he was bound to enter it instanter upon the rendering of the judgment.

Levy for the defendant, relied upon the comprehensive words in the first section of the arbitration law, that it should be lawful " for either party in all civil actions or suits to enter a rule of reference," & c. without qualification either as to the character of the question involved, or the situation of the suit; and as the legislature had conferred upon the arbitrators the power to decide law as well as fact, there was no legal absurdity in referring a point of law. On the exception, he argued, that as there was no limitation of time, it became necessary to resort to the reason of the thing. The stay of execution was intended for the benefit of the defendant, the special bail for the security of the plaintiff. If the plaintiff obtained the bail before execution, his security was the same as if it had been entered within twenty days; and if the defendant did not obtain the stay, he was deprived of a privilege which the law intended, although allowing it to him would not injure the plaintiff. Calvert v. Pitt arose under another law, and the principle relied upon was merely a dictum of the Chief Justice.

TILGHMAN C. J.

This cause was originally determined by alderman Wharton, and removed to this court by certiorari. The defendant here filed exceptions, and the cause having stood some time on the argument list, he entered a rule of reference under the act supplementary to an act entitled an act to regulate arbitrations and proceedings in courts of justice. The plaintiff objects to this rule, and we are called upon to decide, whether it was regularly entered.

The defendant relies on the first section of the act, in which it is said, that " it shall be lawful for either party plaintiff or defendant, or their lawful attorney, in all civil actions or suits brought or to be brought in any court of this commonwealth, to enter at the prothonotary's office a rule of reference," & c.

Upon an attentive consideration of the whole act, I am clearly of opinion that it was not the intention of the legislature to give either party the power without consent of the other, to take a cause out of court, and submit it to arbitrators after it had been once decided either by a jury or referees, or a justice of peace or alderman, and was remaining in this court for decision on a matter of law. The arbitrators are sworn " justly and equitably to try all matters in variance submitted to them; " and they have power to decide the law and the facts that may be involved in the cause submitted to them." All the details of the act are founded on the supposition that there were facts to be decided. In order therefore to comply with the general spirit and intention of it, the generality of the expressions in the first section must be restrained to cases where a trial had not already taken place.

This point being disposed of, I proceed to consider the defendant's objections to the proceedings before the alderman.

Judgment was entered for the plaintiff 22d July 1805. Sometime in the month of August following, more than twenty days after the judgment, the defendant appeared before the alderman, and offered to enter special bail. The sufficiency of the bail was not objected to, but the...