majority"> Tilghkas C. J.

This cause was originally determined by alderman Wharton, and removed to this court by certiorari. The defendant here filed exceptions, and the cause having stood some time on the argument list, he entered a rule of reference under the act supplementary to an act entitled an act to regulate arbitrations and proceedings in courts of justice. The plaintiff objects to this rule, and we are called upon to decide, whether it was regularly entered.

The defendant relies on the first section of the act, in which it is said, that “ it shall be lawful for either party H plaintiff or defendant, or their lawful attorney, in all civil *197“ actions or suits brought or to be brought in any court of “ this commonwealth, to enter a|t the prothonotary’s office a' “ rule of reference,” &c.

Upon an attentive consideration of the whole act, I am clearly of opinion that it was not the intention of the legislature to give either party the power without consent of the other, to take a cause out of court, and submit it to arbitrators, after it had been once decided either by a jury or referees, or a justice of peace or alderman, and was remaining in this court for decision on a matter of law. The arbitrators are sworn “ justly and equitably to try all matters in vari- “ anee submitted to them;” and they have power to decide “ the law and the facts that may be involved in the cause “ submitted to them.” All the details of the act are founded on the supposition that there were facts to be decided. In order therefore to comply with the general spirit and intention of it, the generality of the expressions in the first section must be restrained to cases where a trial had not already taken place.

This point being disposed of, I proceed to consider the defendant’s objections to the proceedings before the aider-man.

Judgment was entered for the plaintiff 22d July 1805. Sometime in the month of August following, more than twenty days after the judgment, the defendant appeared before the alderman, and offered to enter special bail. The sufficiency of the bail was not objected to, but the alderman refused to take it, because more than twenty days had elapsed from the date of the judgment. An execution was issued November 1, 1805, and the defendant excepts to it as having been illegally issued. This is the only point to be decided. It depends on the act commonly called the hundred dollar act, passed 28th March 1804. By the fourth section, twenty-days after judgment are given for either party to appeal. By the ninth section it is declared that “ in all cases where “ the defendant is a freeholder, or shall enter special bail to “ the action, and the judgment shall be above five dollars “ thirty-three cents and not exceeding twenty dollars, there “ shall be a stay of execution for three months; and where “ the judgment shall be above twenty dollars, and not exceed- “ ing sixty dollars, there, shall be a stay of execution for six *198“ months; and where the judgment shall be above sixty dol- “ lars, and not exceeding a hundred dollars, there shall be a ,, ’ c . c . „ “ stay ox execution tor nine months.

The stay of execution was intended solely for the benefit of the defendant; and it is not said within what time the bail shall be entered. But as no more than twenty days are allowed for entering an appeal, there is nothing to prevent the plaintiff from taking out execution, if the bail is not entered within twenty days. In the case before us, the plaintiff did not apply for an execution at the end of the twenty days, and before he did apply, the defendant offered good bail, which was refused. If the bail had been taken when offered, the plaintiff would have derived as much benefit from it, as if it had been entered within twenty days. I can see nothing in the act which prevents the entry of bail after twenty days, if an execution has not been taken out; and without an express provision for that purpose, I think the defendant ought not to be deprived of the stay of execution.

I am therefore of opinion that the alderman acted improperly in refusing the bail, and issuing an execution. It follows that the execution must be set aside. The judgment must be affirmed, no objection having been made to it.

Yeates J.

I fully subscribe to all that the Chief Justice has said about this case not being within the arbitration act; but differ from him on the other point. Under what is called the forty shilling act, passed 28th May 1715, 1 St. Laws 113, the judgment of the justice of the peace is conclusive to both parties without further appeal, and execution if required is immediately awarded against the defendant. The five pound act, passed 1st March 1745, (Id. 304) directs, that in debts between forty shillings and five pounds no execution shall be issued against a freeholder in less than three months after judgment, unless it be verified by affidavit, that there is danger of losing the debt by such delay; and when the defendant is not a freeholder, the execution against him shall be respited for the like term of three months, on his entering into recognisance with one sufficient surety in the nature of special bail, conditioned to deliver the body of the defendant to the sheriff, or to pay the debt adjudged. The act also gives an appeal to either party, ex*199cept on the report of auditors, within six days after the judgment rendered, but riot after, upon giving the security' prescribed by the law. Under this law, it has been decided in this court in Calvert v. Pitt in 1789 (1 Dal. 406), that the defendant after judgment given against him by a justice, ought to enter into a recognisance instanter with at least one good surety: but he may afterwards withdraw his security, or appeal to the Common Pleas within the six days allowed by the act.

The twenty pound act passed 19th April 1794 (3 St. Laws 536) stays execution when the debt is above five pounds and not exceeding ten pounds, for six months from the date of the judgment, if the defendant is a freeholder, or enters special bail; and where the debt is above ten pounds and not exceeding twenty pounds, execution is stayed for nine months in the case of a freeholder, or entry of special bail.

The decision of this case rests on the true construction of the hundred dollar act passed 28th March 1804, (6 St. Laws 383) which was made perpetual with a few alterations, by an act passed 9th April 1807, repealing former laws on the subject (8 St. Laws 78).

The third section directs that where the debt does not exceed five dollars thirty-three cents, the judgment of the justice shall be final; if referees are chosen, and judgment be rendered on their report for a sum not exceeding fifty-three dollars, it shall also be final. Under section fourth, where either party refuses to refer, the justice shall decide, “ either “ party having the right to appeal within twenty days after “ judgment being given.” The seventh section directs, that where judgment is given by default, “ twenty days shall be “ allowed for an appeal, before any further proceedings are “ had.” And by the ninth, section, stay of execution is directed in particular enumerated cases, where the defendant is a freeholder, or gives special bail. If the debt is above sixty dollars and does not exceed one hundred, a stay of execution of nine months is allowed.

It has been urged by the defendant’s counsel, that George Boots offered to alderman Wharton to become security for the debt, in the nature of special bail, after the expiration of the twenty days, and was refused; and that the law fixing no *200time for the entry of the special bail, in order to stay the execution, a defendant is entitled to enter it any time within the nine months, provided the plaintiff has not issued his execution.

This appears to me contrary to the general spirit of the act under consideration, and opposed to the principle of the resolution of this court in Calvert v. Pitt before cited. I have endeavoured to inform myself on this subject since the argument; and from what I have been able to collect, I have reason to believe that the construction generally received and acted upon by the justices of the peace, is directly opposed to the position of the defendant. The period of twenty days is allowed for an appeal, and no further proceedings can be had on a judgment by default till that time is expired.It appears to me that within this interval it is incumbent upon him to determine on the measures which he means to pursue. He may either enter his appeal, or, if he is no freeholder, may give special bail to stay execution according to the terms of the act, during that space of time; but I think he ought not to be permitted to take either step afterwards. If he should receive such permission, though he might be possessed of goods and effects more than sufficient to pay the debt, the creditor would be thereby prevented from suing out execution, till the end of the time prescribed; and tlie debtor might afterwards surrender himself to gaol in discharge of his bail, and thus defeat his creditor from the recovery of a just demand. I am of opinion the judgment should be affirmed in toto.

Brackenridge J. concurred with the Chief Justice.

Judgment affirmed and execution set aside.

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