Pearce against The Seminary, 2 Watts 340

The opinion of the Court was delivered by Rogers, J. Whenever either party is dissatisfied with an award of arbitrators, the act of the 20th of March 1810 gives an appeal, under certain specified restrictions, with this proviso; that the appellant shall not be permitted to produce in evidence in court any books, papers, or documents which he shall have withheld from the arbitrators. Statutes are not to be construed to take away a common law right, unless the intention is manifest.

Nor can you deprive a citizen of a right of trial by jury, or restrict or impair that right by implication from any general language in a statute. The constitution declares, that the trial by jury shall be as heretofore. Again, penal statutes must be construed strictly according to the intention of the legislature. The eleventh

section of the act of 1810, in many of its restrictions, is in derogation of a common law right; the operation of the clause in question is highly penal. It must be viewed therefore with a strict reference to the above rules of construction. To bring a case within the act, the papers must have been in the power of the appellant when called for before the arbitrators, and voluntarily withheld from them. Brisbane v. Mitchell, 8 Serg. & Rawle 428.

They must be in his exclusive power, for if the paper be the paper of both, and as much in the possession of one as the other, as was the case here, they cannot, although not given in evideuce, be said, with any propriety, to have been withheld from the arbitrators. Under such circumstances no presumption can arise that the paper has not been produced with any improper motive. In strictness the papers were not withheld. They were in evidence, but for some reason which has not been explained, were withdrawn from the arbitrators.

The appellee says they were withdrawn to affect the costs on the appeal; and if so, it was a trick unworthy of the counsel who advised it, but which I am unwilling to credit without proof. Besides the object could not be effected without the defendant’s counsel; for, after the evidence was given, it could not be withdrawn by the act of one without the consent of the other. The testimony was under the control of the arbitrators. If he consented, he cannot complain; for consensus toilet errorem.

The defendant might also have avoided the payment of costs by directing judgment to be rendered for the amount really due. Judgment affirmed.