
    [Lancaster,
    June 2, 1823.]
    MILLER against UMBEHOWER.
    IN ERROR.
    •5n an action of assault and battery, if the plaintiff die after an appeal by the defendant from an award of arbitrators in favour of the plaintiff, his representatives cannot be substituted, and the award is at an end.
    In the Court of Common Pleas of BerJes county, to which this writ of error issued, the case was this:
    
      Samuel' Umbehower, the plaintiff below, brought an action of assault and battery in that court,. against Jacob Miller, the defendant below. The action was referred to arbitrators under the act regulating arbitrations, passed the 20th March, 1810. An award was made in favour of the plaintiff for forty-five dollars, and filed in the. oiSca, of the prothonotary. The defendant appealed to the Court’. X Common Pleas. The plaintiff died pending the appeal, .wW?3i/pon the court permitted Philip Umbehower, administrator of the said Samuel, to be entered on the record as plaintiff, after which the cause was tried, a verdict found for the plaintiff for thirty dollars damages, and judgment entered on the verdict.
    It was now assigned for error, that the court'permitted the administrator to be .substituted.
    
      Baird, for the plaintiff in error, contended,
    that by the death of the plaintiff the action abated; for although the act of the 20th March, 1810, sect. 10, declares, that the report, of the arbitrators shall have the effect of a judgment, until such judgment be reversed on an appeal, yet the legislature never intended to alter the nature of actions of tort, which by the common law do not survive .to the representatives of a deceased person. The effect of an award is done away by the appeal; it- cannot be read in evidence to the jury. 6 Binn. 430.
    
      Wright, contra,
    admitted that at common law the action abated; but insisted that the spirit of the act of the 20th of March, 1810, was to prevent the abatement. When it declared that the report of the arbitrator should have the effect of a judgment until reversed, it thereby virtually authorized the substitution of the party’s representatives, when death toot place pending the appeal. Either the action must not abate, or the report of the arbitrators must stand absolute; which would be a hardship on the defendant.
   The opinion of the court was delivered by

Tilghman, C. J.

At common law the action abated by the death . of either party. By the act of 13th of April, 1791, sect. 8, (3 Sm. L. 28,) in case of the death of either party before final judgment, the action does not abate, “ if the cause of action does by law surviveBut this'does not help the plaintiff, because the cause of action in this case does not by law survive. The counsel for the plaintiff rely on the act regulating arbitrations, by the tenth section of which, the award of the arbitrators has the effect of a judgment against the defendant, and is a lien on his real estate until such judgment be reversed on an appeal. But as the right of appeal is given "to the defendant, and has been exercised in the present case, the action was to be conducted in the Court of Common Pleas, in the same manner as if it had been originally commenced there. Thus, when the plaintiff died, there was no law by which the abatement could be prevented, by a substitution of the administrator in his place. There is no provision for that purpose in the act regulating arbitrations. It is a casus omissus. But what then becomes of the award of the arbitrators? It has not been reversed. Is it to be considered as a subsisting judgment? I think not. There has been no default in either plaintiff or defendant. The action abated by the act of God, The defendant therefore must not suffer by it. He did all in his power to prosecute his appeal. The death of the plaintiff he could not prevent. When the law gave him an appeal, and made no provision to prevent an abatement in - case of death, it gave him the chance of being discharged from the action by the death of the plaintiff. He was forced to the arbitration by the positive command of the act of assembly. But the same act secured to him a trial by jury, if he chose to ask for it. He did choose it, and for that purpose entered his appeal. It never could be the intent of the law then, that the award should be conclusive, when the defendant had used all lawful means for prosecuting the appeal, and was prevented by the death of the plaintiff. To have made it conclusive, would have been to deprive the plaintiff of his trial by jury, which in the opinion of the legislature could not have been done consistently with the constitution of the commonwealth. The loss must fall upon one of the parties, and I am of opinion it is the defendant who must bear it. The judgment of the court of Common Pleas is to be reversed.

Judgment reversed.  