Brooke v. Bannon
Supreme Court of Pennsylvania
ERROR to the Common Pleas of Berks county. Charles Brooke, by his next friend, Clement Brooke, against Abraham Bannon and Jacob Rahn.
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ERROR to the Common Pleas of Berks county. Charles Brooke, by his next friend, Clement Brooke, against Abraham Bannon and Jacob Rahn. This action was brought to recover damages for the non-performance of a contract by the defendants; and the parties by agreement referred it, under the Act of 1705, to referees, who made the following report: “The referees above named met on the 27th of July 1837, and adjourned from time to time, with full notice to the parties; finally, after hearing the parties, their proofs, and allegations, they report to the court that the plaintiff has ‘ no cause of…
1Opinion of the Court
Per Ctjriam.
The court unquestionably transcended its power in referring the matter back; for the provision of the statute which authorizes such a reference in certain cases, has regard to reports under the Act of 1836, and not to a report, such as this expressly was, under the Act of 1705. But though the error would otherwise have been fatal, it was helped by the plaintiff’s appearance and litigation of the merits a second time before the arbitrators. Having done that, he can no more allege the want of a submission than a defendant who had voluntarily appeared to an action, could allege the…
2Cited by1 opinion
- Henneigh v. KramerSupreme Court of Pennsylvania · 1865