1 Pa. 501 | Pa. | 1845
The opinion of the court was delivered by
Warranty and guaranty, being derivatives from the same root, are identical ip signification and effect; the one usually, but not always, denoting aifcovenant in a conveyance, and the other denoting a parol promise. We are without precedent for the effect of notice to a guarantor, or of the want of it; but in Leather v. Poultney, 4 Bin.
There are other parts of the charge which seem to be open to objection. It was doubted that Ayres had not entered his rule of arbitration soon enough; but he was not bound to arbitrate it at all. He was bound to prosecute it in good faith, as a prudent man would prosecute; and under no circumstances is a party bound to resort to arbitration as a substitute for trial by jury, which may, after all, be the more expeditious remedy. But if Findley could not rebut the presumptive evidence of the award, his defence in this action will gain no force from want of diligent pursuit in the previous one; for if nothing was actually owing on the due bill, Ayres was not bound to sue on it at all; and the record must stand as proof of the fact, till Findley shows that the set-off was wrongfully allowed. But it is impossible to account for the order on Pearce, without supposing that it was procured by Findley: a supposition the more probable, because he relinquished his intention to appeal. If such was the fact, it is
Judgment reversed,'and venire de novo awarded.