we could get at it, I see no substantial error in it. But it is alleged "that the Court erred in charging the jury that the arbitrament and award were void," which was a plea in this case. In that I am abundantly clear that they did not err. It was absolutely void and of no account, and for the reasons given by the Court. It is not an exception that the Court left it to the jury under their direction to say whether void; because it could not otherwise be but that it must be left to the jury. It is not pleaded as a record, nor could it be so pleaded, so as to be brought before the Court as an abstract matter of law, upon which the Court upon inspection could decide. Had it been pleaded as a record, the plaintiff might have demurred, or the replication nul tiel record would defeat it. It is left to the jury as matter of fact, and the Court as matter of law, that taking the fact as it appeared, the award was void, and there was no accord and satisfaction. But supposing it not void, which would depend upon the evidence respecting it, I mean void in the submission and the making, the Court are alleged to have erred in leaving it to the jury to say whether under circumstances it was not waived or abandoned. This must also be a matter of fact, for it must depend upon the circumstances. This became immaterial in the case of a void arbitrament. But supposing it to be material, the Court and jury would have done right in considering it as abandoned and waived. The whole matter as brought before the Court has now rather the appearance of a motion for a new trial. But even in that view my impression from the testimony is not favourable to the defendant.

He seems to have used no small address to get the contract rescinded, or in other words the former bargain given up, and this being done, his object seems to have been to baffle the plaintiff and avoid a performance of the new contract on his part. But on the law grounds on which the writ of error has been brought I incline to affirm the judgment,

Judgment affirmed.

1813.

ZERGER

V.

SAILER.

Sunbury, Wednesday, June 2.

If a rule of arbi

tration misrecites the date of the arbitration law,

it is immaterial.

OF

PENNSYLVANIA.

Middle District, June Term, 1813.

MOULSON against REES.

IN ERROR.

RROR to Northumberland, in which county Rees issued a capias in case, and referred it to arbitrators, who awarded "that the defendant below should deliver a certain

If a plaintiff, by "deed poll to Rees, pay all costs of suit, and damage sixarbitrating his cause, and getting "teen dollars."

judgment, before the entry of special bail, dispenses

with special bail,

the defendant

cannot assign it

for error.

If the cause of action appears in

the award, neither statement nor declaration is necessary.

The exceptions taken to the record were, 1. That the action was arbitrated by the plaintiff below, and tried by the arbitrators, before the plaintiff in error entered special bail, after being arrested on the capias. 2. That the cause of action did not appear either in the writ, or in any statement or declaration filed. 3. That the act of Assembly referred to in the rule of arbitration, was of the 19th March 1810; whereas there was no such law of that date.

Maus, for plaintiff in error.

Greenough, contra.

TILGHMAN C. J. delivered judgment.

The arbitration may be entered at any time after the issuing of the writ, which is the commencement of the suit, according to the opinion of the Court in Hertzog v. Ellis, 5. Binn. 209. The plaintiff in this case, although a capias

was issued, has dispensed with special bail, as he had a right to do; and this is for the advantage of the defendant. As to the cause of action, it sufficiently appears on the record, that the matter in dispute was a deed, which was described in the award, and for the conversion of which, sixteen dollars damages are given. I consider the action as Trover, and the judgment as relating to the damages only, and not to the delivery of the deed. As for the mistake in the date of the act, it is immaterial. It is a public act, of which the Court must take notice. The mentioning of it by the prothonotary in entering the rule of reference, was surplusage. Besides the title of the act is properly given, although the date is mistaken.

Judgment affirmed.

1813.

MOULSON

V.

REES.

tices to suits

'The action was in its origin trespass, not exceeding fifty the powers of jusdollars, brought before a justice of the peace, under the act brought for the of 1st March 1799, 3 Smith's Laws, 354. in which the recovery of damages for any plaintiff Trimbly demanded 50 dollars, "damages sustained trespass, wrong, or injury, done "by the defendant's cheating the plaintiff's servant, a minor, or committed "in trading a horse for a mare, for which the servant had against the real or personal estate "no authority to trade." The case was referred to arbitra- of the plaintiff, tors who awarded to the plaintiff 52 dollars 50 cents. The defendant appealed to the Common Pleas, where there was second reference, and award for the same sum; and the plain- creased to 50 doltiff released 2 dollars 50 cents, the excess beyond the magistrate's jurisdiction, by the act of 13th April 1807. 4 Smith's Lars, 470.

a

where the da

mages do not ex

ceed 20 dollars, (afterwards in

lars,) only com

prehends cases

where the damage arises by an actual or immediate injury ope

The only error relied upon was the want of jurisdiction rating upon the

in the justice.

Maus and Duncan, for the plaintiff in error.

body of the pro

perty.

1813.

MASTELLER

υ.

TILGHMAN C. J. delivered judgment.

We are of opinion that the act of 1st March 1799, under which this suit was brought, did not give jurisdiction to TRIMBLY. jústices of the peace, except in cases where damage arises by an actual and immediate injury done to real or personal property. It was not meant to include injuries arising with out any act operating immediately on the body of the property: such for instance as the present case, which was cheating in a bargain concerning a horse. If the words were taken in their greatest possible extent, they would include Trover and Conversion, which was never supposed to be within the act, and in which jurisdiction was subsequently given by the act of 4th April 1809. There are expressions also respecting the estimating the damages, by view or otherwise, which seem to suppose that it must be a damage which might be judged of by inspection. Trespass against property in common parlance, means an act, by which immediate injury is done to the property, and this is the sense in which the legislature used it. The cause of action in this case was not of that nature; the justice therefore had no jurisdiction, and the judgment must be reversed.

Judgment reversed.

Sunbury, Monday, June 7.

In an action of trespass quare clausum fregit &c. referred to

arbitration with

out declaration

trators awarded

RICHTER against CHAMBERLIN and others.

IN ERROR.

ERROR to the Common Pleas of Northumberland.

Richter brought an action of trespass against the defend ants, for breaking his close, pulling down and carrying away or plea, the arbi- his fences, and treading down, spoiling and destroying his as follows: "We grass, with a continuando as to treading down, &c. the grass from 1st May to 28th May 1812. On the same day on "lands in dispute "in favour of the which the suit was instituted, and before either plea, decla"defendant, and "the division as ration or statement filed, the plaintiff entered a rule of re"it now stands to ference, and the arbitrators returned the following award:

"do award the

"be the esta

"blished line." Held, that the defendant could recover no land under the award, nor were the boundaries fixed by it, that not being a matter about which the parties were at variance in the suit, but merely a claim of damages. The award is good, however, as a general finding, that the plain tiff had no cause of action.

"We do award the lands in dispute in favour of the defend"ant, and the division as it now stands to be the established "line."

LIN et al.

The exceptions to the award, which were assigned for error CHAMBERin this Court, were, 1. That it had not pursued the submission, nor taken any notice of the damages mentioned in the original writ. 2. That it was obscure and void, and unappropriate to the cause of action, so that no valid judgment could be rendered upon it, or carried into effect. 3. That it was uncertain, as it was in favour of the defendant; and there being three defendants, the arbitrators had not determined to which defendant the plaintiff should deliver the land; and further because it did not specify what land, or what fence should be the line.

Bradford, for the plaintiff in error.

Maus and Hall, contra.

TILGHMAN C. J. The objections of the plaintiff in error are, that this award was not made on the subject submitted, that it is uncertain and absurd.

When an action is taken from the Court and carried before arbitrators under our act of assembly, it is not usual to plead and join issue în a formal manner. If this cause had been brought to issue, and tried by a jury, the issue might have been joined on the title to the land in dispute; and if that had been found for the defendant, judgment would have been given in his favour. When the parties went before the arbitrators, they probably contested the title, though that cannot appear. I consider the award as amounting to no more than that the plaintiff had no cause of action. The defendant cannot recover any land by virtue of it, nor are the boundaries between the lands of plaintiff and defendant, to be considered as established; for that was not a matter submitted to arbitration. The act of assembly au-. thorizes the arbitrators to decide on all matters in variance in the action, and the writ shows that the matter in variance was a claim of damages by the plaintiff for a trespass on his land, and taking away his fences, &c. The law declares that the award when filed in the office of the prothonotary, is to