O'Donnell v. Lynch , 1 Watts & Serg. 283 ( 1841 )

Per Curiam.

If the plaintiff was not entitled to recover against such parts of the written evidence as were competently introduced, his exceptions to other parts of it can not avail him; for such parts of it could do him no further prejudice than the competent parts would do. The defendant offered the record of an action by the plaintiff, in which there was an award of $700 against him under the arbitration act, to be followed by proof that the land was levied and sold by execution on it. This was opposed on the ground, that as the arbitrators stood in the place of a court and jury, their award of a balance against the plaintiff could not be made the foundation of an execution without scire facias and judgment on it, pursuant to the defalcation act; and beside, that notwithstanding the devesture of the plaintiff’s title by it subsequently to the commencement of this ejectment, he might still go for damages and costs. But these objections were properly overruled, because the arbitration act gives an award pursuant to it the effect of a judgment; and because the evidence furnished a decisive bar to the greater part of the subject of recovery. The judge indeed afterwards charged, that as the title depended on written evidence, and the construction being for the court, he was bound to say the plaintiff could not recover; and had the plaintiff gone avowedly for damages and costs (he had not given notice of an intent to go for mesne profits) this might have been erroneous: but it is not pretended that he prayed a special instruction in this particular, or went for any thing less than the land. The other bills of exceptions are unimportant.

Judgment affirmed.