
    [Sunbury,
    July 5, 1826.]
    IVES and others against LEET and others.
    IN ERROR.
    One Verdict and judgment, and one award of arbitrators, under tlie act of the 20th of March, 1810, in favour of the same party, are not a bar to another ejectment by the other party.
    On the return of a writ of error ,to the Court of Common Pleas of Tioga county, it appeared, that this was an action of ejectment, brought by John Ives and others, the plaintiffs in error, against Thomas Led and others. On the trial of the cause, in the Court of Common Pleas, it was proved by the defendants, that, in a former ejectment for the same land, in which they were plaintiffs, and the present plaintiffs were defendants, a verdict and judgment had been given for them, (the now defendants,) and that afterwards the now plaintiffs brought an ejectment against them, which was arbitrated under the compulsory arbitration act; and a report returned and filed in the prothonotary’s office, in favour^f the defendant's. From this report^ the plaintiffs appealed to tne Court of Common Pleas, where they suffered a nonsuit. On this evidence, the Court below instructed the jury, that the plaintiffs’ action was barred by the act of the 13th of Jlpril, 1807, (4 8m. L. 476,) and the counsel for the plaintiffs excepted to their opinion.
    
      Lewis, for the plaintiffs in error.
    By the act of the 13th of Jlpril, 1807, (Purd. Dig. 204,) two verdicts and two judgments in ejectment are conclusive; but the defendants, having had only orle verdict and judgment, and one award of arbitrators, from which an appeal was entered by the plaintiffs, who afterwards suffered a nonsuit, the case does not fall within the meaning of the act of assembly. This act is in derogation of the common law, which does not restrain the bringing of actions of ejectment. An injunction has been refused in equity against a plaintiff in ejectment, after having failed in five suits. 2 Eq. Mi 243. The letter of the law should therefore be adhered to, and no equitable construction admitted. 4 Bac. M. 650. Hammond v. Webb, 10 Mod. 282. 3 Leon. 133. 4 Dali. 64. Johnson v. Blaines’s Lessee, 3 Binn. 103. It is clear, that the case is not within the words of the law; nor is it within its spirit, because, however unjust and illegal the proceedings of the arbitrators may have been, there can be no redress, unless an error appears on the face of the award. In a proceeding under the compulsory arbitration act, a landholder residing at a distance, is subjected to the greatest difficulties. . Arbitrators are chosen after fifteen days’ notice, a period scarcely sufficient to enable the tenant to give notice to his landlord, whose case must often-be heard under great disadvantages. Nor is there any remedy for the evil. Where there has been an erroneous verdict, the whole matter may be reviewed by the court, on a motion for a new trial; but this species of relief is not open to one who has been aggrieved by an award of arbitrators. The eases of a verdict and an award are not parallel. A report of referees, under the act of 1705, may perhaps be equivalent to a verdict, because the act of assembly expressly puts it on the footing of a verdict. But it is to be remembered, that such a reference is voluntary, and no judgment is entered on the report, until it has been approved by the court, and if the proceedings have been against law, or even if there has been a manifest mistake in point of fact, the court will not confirm it.
    
      Willision and Mallary, for the defendants in error.
    The question is, whether a report of the arbitrators is equal to a verdict and judgment, under the act of the 13th of Mpril, 1807. The object of the act of assembly was to make an end of ejectments after two trials, and it is immaterial whether these trials be by juries or by arbitrators. The act of March, 1810, gives to an award of arbitrators the effect of a judgment, and makes it a lien, upon real estate. The judgment, therefore,'has precisely the same force in other respects as if it had been entered on a verdict, and no good reason can be given why it'should not operate in the same manner upon the rights of a plaintiff in ejectment.
   The opinion of the court was delivered by

Tilghman, C. J.

When the plaintiffs suffered a nonsuit on their appeal, the report of the arbitrators remained in full force, and had the effect of a judgment. The question is, then, whether one verdict and judgment, and one report of arbitrators in favour of the same party, be a bar to another ejectment by the other party? The act of assembly on which the case depends (section 4,) is in the following words: “Where two verdicts shall, in any writ of ejectment, between the same parties, be given, in succession, for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought; but where there may be verdict against verdict,.between the same parties, and judgment thereon, a third ejectment in such cases, and a verdict and judgment thereon, shall be final and conclusive, and bar the right,” This section is drawn with great care and caution, because the object was, to deprive one of the parties in ejectment of a right which had been enjoyed before, of bringing a third ejectment, after, the loss of two verdicts and two judgments. The intention is clearly expressed, that to bar the right there must not only be two verdicts, but a judgment on each of them, and not only two judgments, but a verdict preceding each of them. A judgment by default would not be within the meaning of the law, because such judgments are rendered without any trial, and the right was not to be barred, unless the cause was twice decided by a jury. A jury trial gives each party an opportunity of introducing the merits of his ease, and, in general, verdicts are founded on the merits. But the defendants rely on the act of the 20th of March, 1810, 5 Sm. L. 131, by which either party may compel the other to submit the cause to arbitrators, whose .report, (by the tenth section of the act,) when entered on the docket of the prothodotary, has the effect of a judgment. Is this equal to a judgment on a verdict? It is,not within the words of the act of April, 1807, because there has not been a verdict and a judgment thereon. Then why should this court construe the act hy equity, for the purpose of barring a common law right? Nothing, certainly, could justify such a construction, but the manifest spirit of. the law. Now, it appears to me that the report of arbitrators is not, in spirit, by any means equal to a verdict and judgment.' An arbitration, under the act of 1810, is forced upon the party, and the arbitrators decide both fact and law, without the assistance of the court. Neither, when their report is once returned, can they be requested to reconsider it. . Nor is there any opportunity of correcting errors, to which the best and most intelligent men are subject. A writ of error does indeed lie on the report of arbitrators. But, as you are confined to errors appearing on the record, if the award is good on its face, there is no chance for redress, the proceedings before the arbitrators not being entered of record. They may have fallen into, the'grossest errors, and yet nothing is seen of them. How different is the case of a verdict and judgment! Before the jury retire to consider the cause, they hear the arguments of counsel, and receive instructions front the court in all matters of law. And if the court errs in the admission or rejection of evidence, or in its opinion on any point of law, the mistake may be corrected by a superior tribunal. Arid, besides, on a motion for a new trial, if it appear that either court or jury have been wrong on the first impression, which is often the case, the qause may be submitted to another jury, when the matter being more fully canvassed and understood, there is the strongest probability of a proper decision. I am quite clear; therefore, that the report of arbitrators, under the act of 1810, cannot be considered as equal to a verdict and judgment, under the act of April, 1807. I give-no opinion on the effect of an award of referees under the act of 1705, (1 Sm. L. 49,) and a judgment entered thereon. It is different from the case before us, because the act of 1705 expressly enacts, that the award “ being approved of by the court, and entered on the record, shall have the same effect, and shall be deemed and taken to be as available in law, as a verdict given by twelve men”

I am of opinion, that the judgment in the present case should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  