72 Pa. 360 | Pa. | 1873
The opinion of the court was delivered, by
— The plaintiffs below took out a • rule of reference in this case, and an award having been made against them, appealed therefrom without the payment of costs and entering into recognisance; and in consequence, the court below set aside the appeal. The 3'lst section of the Act of the 16th of June 1836, relating to arbitration, provided' “ that in all cases in which executors, administrators or other persons suing or being 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 into recognisance as aforesaid, if such appellant shall not have taken out the rule of reference.” The question is whether the qualification that the appellant had not taken out the rule of reference still exists in view of the subsequent legislation in regard to executors and administrators. The abolishment of imprisonment for debt, carried with it the bail known as special bail, conditioned for the surrender of the body, and led to the passage of the Act of the 20th of March 1845, Pamph. L. 188, the first section of which enacted that, “ 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 award 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 Brightly 57, pl. 41. The words “ costs accrued and likely to accrue,” led to the impression that no costs were to be paid under the general Act of 1836, as a condition of obtaining an appeal. It was decided differently, however, in Merritt v. Smith, 2 Barr 161, and the legislature, with a view to a remedy, passed the Act of the 13th of April 1846, Pamph. L. 303, validating appeals made without the payment of costs, and declaring in the second section that “ the first section of the act entitled ‘ An Act concerning Bail and Attachments,’ shall be sc