
    'WESTERN DISTRICT, PITTSBURGH, 1852.
    Erie versus Tracy.
    1. The compulsory arbitration law has place only in actions pending at the time the rule is entered, or the reference agreed upon, and an appeal, such as is contemplated by the statute, can exist in no other.
    2. At common law, either party may revoke a submission, even though contrary to his express agreement, at any tipae before the award is made.
    Error to the Court of Common Pleas of Erie county.
    
    The' borough of Erie was indebted to John A. Tracy for certain work, about which a controversy had arisen^ and the parties entered into the following amicable submission :—
    “ John A. Tracy v. The Burgess and Town Council of the borough of Erie. In the Court of Common Pleas of Erie County. Amicable action.
    “And now to wit, 24th Nov. 1849. It is agreed to submit all matters in variance between the- parties, growing out of the contract for the filling out of the State Street road to public pier, be submitted to Joseph Henderson, Wilson.King, and David Ilimrod, who or a majority shall report an award, after duly considering all matters claimed in the shape of damages or otherwise, by either or both parties. The amount found due, if any, to the said John A. Tracy, to be .paid in the bonds of the borough, according to the terms of the contract.: Either party having the right to appeal to the Court of Common Pleas, by so signifying the wish and intention to do so, and causing this amicable action and the award on the same to be filed in the said court, within twenty days after the award is made and delivered, and filed in the office of the Borough and Town Council aforesaid. Witness the hands and seals of the said Burgess and Town Councils, and the said John A. Tracy.
    John A. Tracy, l. s.
    A. W. Brewster, l. s.’
    James Skinner, ii. si
    C. M£Sparren, i. s.:
    P. Arbuc.kle, L. S.’
    T. G. Colt, 1. Sv
    John Pinkney, L. S.‘
    After hearing, the arbitrators awarded to John A. Tracy $2828.21 to be paid in the bonds of the borough, and attached the same to the amicable submission, November 30, 1849.
    On the first day of December, 1849, the town clerk sent the papers with the following note to the ProthonotWym^lhq ^ Common Pleas, which was filed on the same day, as aix«/ppeáí'»$:'_j from the award of the arbitrators.
    “. Sir — Please file in the -Court of Common Pleas the above stated amicable action according to the terms of the agreement, and enter it of record to next term. By order of the Burgess and Town Council. Jas. C. Reid, Town Clerk.
    Dec. 1, 1849.”
    April 30, 1852, John A. Tracy obtained a rule to show cause why the appeal should not be quashed, which was made absolute July 31, 1852, and defendants took this writ of error, and complain that the court erred in quashing the appeal.
    
      Babbitt, for plaintiff in error.
    — 1. This was an arbitration at common law, and not in court at all, till brought by defendants, and filed as an appeal. The appeal was in accordance with the stipulations of the agreement in respect to the mode of appealing from the award.
    2. The motion to quash came too late.
    
      Thompson Grant and Walker for defendant in error.—
    The question is, has the defendant appealed in this case? We say the defendant has no.t appealed, •'
    1. Because Mr. Reid, the clerk, was not authorized to appeal.
    2. Because the defendant, Mr. Reid, nor any one else, has ever signified an intention to appeal.
    3. Because the dissatisfied person to appeal must file the amicable action in court, and signify an intention to appeal, and then, and then only, can appeal.
    
    To appeal there must be,
    1. An affidavit.
    2. All the costs must be paid.
    3. The appellant must enter into a recognizance.
    In this case there were no affidavits made — no costs paid— no recognizances entered into; and'referred to Beers v. West Branch Bank, 7 W. & S. 365; Dunlop’s Dig. 1035; Act of 20th March, 1845; Act of 13th April, 1846, 2d sec.; Merritt v. Smith, 2 Barr, 161.
   The opinion of the court was delivered October 7, 1852, by

Lewis, J.

By the common law, either party may revoke a submission, even though contrary to his express agreement, at any time before the award is made; and there is no rule of law which prevents an extension of the time for revocation by mutual consent. This is all that was done in the present case. The right of revocation was extended for twenty days, upon the terms prescribed, and the terms were proper and appropriate to the object. The dissatisfied party was required to signify his intention, so that the other should have notice, and to file the agreement for an amicable action, in order that the controversy might be settled by due course of law.

The plaintiff in error has complied with these terms. The award therefore falls to the ground with the submission, and nothing remains but the amicable action. As the award was thus nullified, strictly speaking, there was no appeal upon which the order of the court quashing the appeal could operate; but as it is understood to be a final judgment, which arrests the further proceedings in the cause, it is reversed, and a procedendo awarded.

Judgment reversed, and procedendo awarded.

Mr. Justice Woodward dissented.  