5 Rawle 249 | Pa. | 1835
The opinion of the court was delivered by
Several errors in the proceedings below have been assigned in this court, which result in the question, whether the award against all the defendants was valid. The plaintiff proceeded originally by capias ad respondendum indorsed “ no bail required,” but it was not served according to the rule of court, the defendants not having subscribed a note in writing, empowering the prothonotary to enter their appearance, and therefore the return of the sheriff of “ cepi corpus, and the defendants discharged on common bail,” was nugatory, and did not authorize an appearance to be entered. The court below so decided, when they ordered the rule to plead and judgment to be struck off, and we think rightly. The sheriff was bound either to take such a note in writing, as would justify an appearance to be entered, or to hold the defendants to special bail. Barnard v. Field, 1 Dall. 348. 3 Binn. 286. It is suggested that such a note may have been signed, and afterwards lost. If this were so, the fact might have been shown to the court helow, on the hearing, and if satisfactorily established, would no doubt have produced a different result.
After this order of the court below, the plaintiffs entered a rule of
But though some analogy exists to cases under the statute of limitations, there are material differences between the common law principles applicable to that statute, and those which regulate the right of arbitration, under the act of 1810, and its amendment of the 28th March, 1820, and this case depends on the true construction of these acts, rather than on corresponding principles in other matters, existing at the common law.
The arbitration act of 20th March, 1810, had not been long in use, before some of its features were found in practice, to present much inconvenience and incongruity. In the cases of Hertzog v. Ellis, 3 Binn. 209. Flanegan v. Negley, 3 Serg. & Rawle, 498. Sharp v. Kilgore, 3 Serg. & Rawle, 387. Brown v. Scheaffer, cited ib., the court, under the authority in the first section, to arbitrate “at any time after the entry of the suit,” felt themselves compelled to decide, that a rule of reference might be taken out before the return day of the writ, whether a capias or summons, even though
It is further contended by the plaintiff below, that if there were an irregularity in the proceedings, it was waived by the general appearance entered by Mr. Tilghman for all the defendants, on the 9th of April, 1831, after the rule of reference was entered, but before the appointment of arbitrators. And if this appearance had so remained uncorrected, though at the instance of one defendant only, and under circumstances of considerable suspicion, as to the motive
Judgment reversed.