
    Van Slyke vs. Lettice.
    After an appeal from a justice’s judgment to the comrppn pleas, the parties agreed to arbitrate the subject matter of the suit, and accordingly entered into bonds of submission, which contained this clause: “All further proceedings in said suit at law are to be hereby stayed and ended, and the award or determination &c. is to be final." The arbitrators met and heard the parties, but were unable to agree within the time limited by the submission, and finally adjourned without day. Held, that the submission not only put an end to the appeal, but extinguished the right of suing upon the original judgment.
    The case of Miller v. Van Anken, (1 Wend. 516,) commented on and explained.
    On error from the Montgomery common pleas. Lettice sued Van Slyke in a justice’s court, and declared in debt on a judgment in favor of the former against the latter. After issue joined, the cause was tried, and judgment rendered against Van Slyck, who appealed to the common pleas, where the following facts were proved :
    The judgment declared on was recovered before one ^Vessels, in April, 1842, and was for over $25. After its rendition, Van Slyke appealed'to the common pleas, and the justice made and filed a return to the appeal in May, 1842. On the 11th of June following, the parties entered into bonds submitting “ the matters at issue between them in the suit pending in. the common pleas” to arbitrators. The bonds contained this clause : “ All further proceedings in said suit at law are to be hereby-stayed and ended, and the award or determination of the said arbitrators in the said matter is to be final.” The arbitrators met and heard the parties, but were unable to agree upon an award within the time limited by the submission, and finally adjourned without day.
    It was objected, on the part of Van Slyke, that the submission operated as a bar to the right of suing upon the original judgment, and that Lettice could not recover. The common pleas held otherwise, however, and Van Slyke excepted. Verdict and judgment in favor of Lettice; whereupon Van Slyke brought error.
    
      
      T. B. Mitchell, for the plaintiff in error,
    insisted that the legal effect of the submission was to extinguish the proceedings at law from their commencement, and substitute an arbitration instead thereof. After the arbitrators failed to agree, the remedy of Lettice, if any, was upon the cause of action on which his judgment was founded; not upon the judgment itself.
    
      J. C. Wright, for the defendant in error.
    The present case is not distinguishable in principle from that of Miller v. Van Anken, (1 Wend. 516.) The object of both parties here was to avoid the necessity of trying the appeal, and this is “ the suit at law” which was to be “ stayed and ended” by the submission. The phraseology employed is entirely inapplicable to the judgment before the justice.
    
      Mitchell, in reply.
    The case of Miller v. Van Anken proceeds upon the peculiar phraseology of the submission there proved. It spoke of a discontinuance, and expressly confined this to the appeal; the effect of which would be to leave the judgment appealed from in full force. (2 R. 8. 189, § 209, 2d ed.; id. 191, § 224.) Here, however, the phraseology is not thus restricted, but is comprehensive enough to embrace the proceedings on the appeal not only, but those before the justice.
    To hold that the failure of the arbitration had the effect of rendering the judgment appealed from conclusive upon Van Slyke, and thus prevent him from contesting the original cause of action, would be alike unjust to him ahd contrary to the object of the submission.
   By the Court, Beardsley, J.

An appeal from a justice’s judgment to the court of common pleas, transfers the cause to the latter court. The statute upon this subject declares that, upon the return of the justice being filed, the court of common pleas shall be possessed of the cause.” (2 R. 8. 261, § 201.) It is the same cause in the common pleas which had previously been pending in the justice’s court. (Id. 262, 3, §§ 210, 214, 216.

But notwithstanding the cause in the two courts is the same, the appeal does not extinguish the judgment of the justice. It is still a judgment, although the appeal supersedes all further proceedings upon it. (Id. 259, § 192.) This consequence results from merely making a regular appeal. The return of the justice is then to follow, and when that is filed, the common pleas becomes fully possessed of the cause, and may dispose of it in various ways. One of these is, by a dismissal or discontinuance of the appeal, in which case the judgment before the justice remains in full force and effect. (Id. 259 to 264, §§ 189, 202 to 209, 224,227.)

In Miller v. Van Anken, (1 Wend. 516,) a cause had been carried to the common pleas by appeal, subsequently to which the parties agreed to submit it to arbitrators, providing in the bond of submission “ that the appeal to the court of common pleas” should be thereby discontinued. The arbitrators failed to agree, and the court held that, as the appeal had been expressly abandoned,” the judgment before the justice remained in force. That case was like the one now under consideration, with a single exception. Here the agreement is, not that the “ appeal” shall be discontinued, but that “ all further proceedings in said suit at law are to be hereby stayed and ended.” The difference in my opinion is material, and must control the present case. These parties intended to blot out and end the suit at law, from its commencement before the justice to its termination in the common pleas, by the substituted arrangement to arbitrate.

The common pleas therefore erred, and their judgment should be reversed.

Judgment reversed. 
      
       Hence security given by a plaintiff, on obtaining a warrant or attachment before a justice, extends to the final result of the cause in the common pleas. (Traver v. Nichols, 7 Wend. 434; Ball v. Gardner, 21 id. 270.)
     