
    M'Entire against M‘Elduff.
    In Error.
    THIS was a writ of error to the Common Pleas of Westmoreland county.
    The defendant in error brought an action of covenant before a justice of the peace to recover damages not exceeding one hundred dollars, for a breach of contract under seal, and obtained judgment for $81 50 damages, and $6 53 costs. The plaintiff in error appealed to the Court of Common Pleas, where the cause was referred to arbitrators, who made the following award: — “ We, the arbitrators mentioned in the « above rule, viz. James Murray Esq., John Humes, Daniel u Flemming, and James Hutcheson, met at the time and place “ above appointed, and defendant not appearing, and William “ Larimef not appearing, we, the other arbitrators, did nomi- “ nate and appoint Henry Luizenheiser (agreeably to the act 
      u of the general assembly in such case made and provided) “ and after being all sworn and affirmed, and having the tes- “ timony laid before us, and duly considering the same ac- “ cording to the best of our judgment and ability, do find for “ tlie plaintiff, one hundred and fifteen dollars damages, with “ costs of suit.”
    
      In a suit before a justice of the peace, it is not necessary to file a declaration; nor is it necessary when the suit is removed to the Common Pleas, and there submitted to arbitrators.
    If the judgment of a jus- ' tice of the peace be for a sum within his jurisdiction, and on an appeal to the Common Pleas, judgment be eivent for a sum above his jurisdiction, the judgment of that Court shall not be arrested, unless it appear that the cause of action was different.
    If the record of the proceedings before the justice set forth generally the nature of the plaintiff’s demand, and-that it does not exceed §100, it is sufficient to shew that he had jurisdiction.
    Arbitrators need not reduce their pi’oceedings to writing; but if they do, and on the face of them, it appear that they have acted illegally, it is error.
    When a majority of the arbitrators attend, they may proceed to supply the place of one who does not attend, even in the absence of the defendant, if no sufficient excuse be made for his absence.
    
      The errors assigned in this court, were
    1. That the plaintiff below had filed no declaration, by which the defendant could have notice of the cause of action.
    2. That a recovery in this suit would be no bar to a subsequent action for the same cause.
    3. That the judgment of the Court of Common Pleas is for a sum not within the jurisdiction of the justice, and greater than the plaintiff’s demand before him;
    4. That it does not appear , by the record, that the justice had jurisdiction of the subject matter of the suit.
    5. That the plaintiff in error had no notice of the time and place of meeting of the arbitrators.
    6. That the appointment of Henry Lutzenheiser as an arbitrator was illegal and void.
    
      Forward, for the 'plaintiff in error,
    cited Ebersol v. Krug 
      
      , Lewis v. England 
      
      , Alberti v. Dawson 
      , Moore v. Wait 
      
      , Owen v. Shellmaker 
      
      .
    
    
      Foster, contra.
    
      
       3 Birin. 528.
    
    
      
       4 Binn, 10.
    
    
      
       1 Binn. 105.
    
    
      
      
         1 Binn. 219.
    
    
      
       3 Binn. 45.
    
   Tilghman C. J.

M'Elduff, the defendant in error, brought

an action of covenant against M'-Entire, the plaintiff in error, before a justice of the peace, and obtained judgment for 81 dollars SO cents damages, and costs of suit. The defendant appealed to the Court of Common Pleas, where the cause was submitted to arbitrators, who made an award in favour of the plaintiff for 115 dollars damages with costs of suit, for which judgment was entered in the Court of Common Pleas. The plaintiff in error has assigned six reasons for reversing the judgment.

1. No declaration was filed.

In suits before a justice declarations are never filed. No-’ tice was given that the action was covenant, for damages, for non-performance of a contract under hand and seal, not exceeding 100 dollars. This was necessary in order to give jurisdiction to the justice. The pleadings were ore tenus. When the action was removed to the Court of Common Pleas, it was submitted to arbitrators, and in that case it has been repeatedly decided by this Court that a declaration is not necessary.

2. The second exception, being included in the first, requires no particular observation.

3. The third exception, which is the' only one of any weight, is, that the sum recovered in the Court of Common Pleas, exceeds the jurisdiction of the justice of the peace, which is limited to 100 dollars.

If the justice jhad given judgment for more than 100 dollars, it would have been erroneous, as was decided by this Court in the case of Moore v. Wait, 1 Binney, 219. But the judgment,in this case was only for 81 dollars 50 cents, which is within the jurisdiction. It has also been determined by this Court, in the case of Owen v. Shellmaher, 3 Binney, 45, that when the suit is carried to the Court of Common Pleas by appeal, the plaintiff cannot introduce a new cause of action. But it by no means follows that the cause of action was different, because the arbitrators awarded damages to a greater amount than was recovered before the justice. Nothing is more common than for different persons to form different opinions on the same matter. This is strongly exemplified, not only in awards of arbitrators but in verdicts of juries. We must take for granted then, nothing appearing on the record to the contrary, that the cause of action on which the plaintiff recovered in the Common Pleas was the same on which he recovered before the justice. It has been determined that when a cause came to trial by jury on an appeal, there was no impropriety in adding interest to the sum recovered before the justice, although the aggregate amount should be. more than 100 dollars. Upon that principle I think this judgment may be supported. The arbitrators may have added interest to a principal less than 100 dollars, and also additional damages for the vexation and expense of the appeal. The sum awarded (115 dollars) is so little more than the sum of which the justice had jurisdiction (100 dollars) that the excess may be well accounted for upon the principle I have mentioned. It is unnecessary therefore to decide what the law would be in case it appeared .that the arbitrators had been of opinion, that the cause of action as it originally stood before the justice, was of an amount more than 100 dollars.

4. The fourth exception is, that it does not appear on the record that-the justice had jurisdiction. The answer is, that it sufficiently appears. The plaintiff has averred, 1st, that his cause of action was a demand of damages for breach of a contract under hand and seal. This is as much as the act of assembly requires. He is to shew his cause of action, viz. to declare the nature of it,-whether bond,note, or book account; and, 2dlv, he has averred that his demand did not exceed 100 dollars. These two particulars, the nature and amount of the .demand establish the jurisdiction.

5. The fifth exception is, that it does not appear on the record, that notice of the time and place of meeting was given to the defendant. This is not error. It has been frequently decided, that the arbitrators need not reduce their proceedings to' writing.- If - they proceed irregularly, the Court will give relief in a summary way. If indeed they undertake to record their proceedings and upon the face of them they have, acted illegally, it is .error.

6. The sixth exception is to -the appointment of Henry■ Lutzenheiser as an arbitrator. It is is said to be illegal, because made in the absence of the defendant. But certainly this appointment was authorised by the 9th section of the act of the 20th March, 1810. It is thereby enacted, “ that if any “ arbitrator or arbitrators refuse, or neglect to attend, or are “ prevented by sickness or other unavoidable accident, a majority of the whole number of arbitrators, and the parties “ being present, and where one of the parties is absent, unless “ prevented by sickness or other unavoidable cause, notice • “thereof being given to the arbitrators, the sufficiency of “ which shall be left to their discretion, it shall then be the “duty of the arbitrators present, or a majority of them “ (when the parties cannot agree on suitable persons to supply-such vacancy) to appoint a competent number of per- “ sons in place of those who may be absent.” Now it is stated in this record, that a majority of the arbitrators and the plaintiff met; but one of the arbitrators and the defendant, were absent, and it does not appear that any excuse was made for the non-attendance of the defendant. The arbitrators who' were present then proceedéd to appoint Henry Lutzenheiser, in the place of Mr. Larimer, who was absent. This was in exact' conformity to the law. The exception therefore is not good. These are the reasons assigned for reversing the judgment. I am of opinion that none of them have been supported, and therefore the judgment should be affirmed.

Brackenridge J. concurred with the Chief Justice.

Yeates J.

gave no opinion, not having been present at the argument.

Judgment affirmed.  