[Sunbury,
July 2, 1827.]
The COMMONWEALTH, for the use of ROGERS, against BENNETT.
IN ERROR.
An appeal lies from the judgment of a justice of the peace, in an action for the penalty incurred by neglecting to serve notice under the arbitration act of the 20th of March, 1810.
Such an action may be referred, under the said act of the 20th of March, 1810.
Writ of error to the Court of Common Pleas of Lycoming county.
This suit was originally brought in the .name of the Commonwealth, for the use of Seth Rogers, against John Bennett, before a justice of the peace, to recover the penalty of twenty dollars, imposed by the' eighth section of the arbitration act of the 20th of March, 1810, for neglecting to serve notice of the time and place of the meeting of arbitrators on Solomon Barless, an arbitrator in the case of John Bennett v. Seth Rogers, pending in the Court of Common Pleas of Lycoming county; in which case a rule of reference had been entered by Bennett. The justice gave judgment for the penalty against the defendant, who appealed to the Court of Common Pleas. A rule, was afterwards granted by that court, to show cause why the appeal should not be stricken off, and *244the proceedings stand in the meantime. The court discharged the rule, and sustained the appeal.
The defendant afterwards entered a rule of reference under the act of the 20th of March, 1810, and the arbitrators gave an award for the defendant, upon which judgment was entered.
The record was removed, by writ of error, to this court, where Armstrong, for the plaintiff in error, contended,
1. That the court below erred, in refusing to strike off the appeal, none being allowed by the eighth section of the act of the 20th of March, 1810, regulating arbitrations. He cited, 4 Serg. & Rawle, 190. 2 Serg. & Rawle, 463.
2. That the action being for a penalty, the arbitrators had no jurisdiction of the case. To this point he cited, United States v. Buchwalter, 11 Serg. Rawle, 197. 13 Serg. & Rawle, 44. Id. 102.
Beecher, contra, referred to 5 Binn. 463.
The opinion of the court was delivered by
Gibson, C. J.
The right of trial by jury is supposed to be guarded by the constitution, and we are, therefore, to construe acts of assembly, which admit of construction, and would otherwise impair it, so as not to infringe on the constitution. The penalty in question, is made recoverable as debts of less amount than five dollars and thirty-three cents are recoverable, in respect to which the judgment is without appeal. But there are other consequences peculiar to an action for a debt of this class; such, for instance, as the judgment being without stay of execution, and these we must suppose to have been exclusively in the contemplation of the legislature, to whom-we ought not gratuitously to impute an intention to destroy a right secured by the constitution.
The remaining point is attended with still less difficulty. A prosecution for a criminal matter, whether by indictment, information, or action for the forfeiture, is not within the purview of the compulsory arbitration act, all the provisions of which are adapted exclusively to the proceedings in civil suits. But an omission to give notice of the time and place of the meeting of the arbitrators, is without the least smack of criminality whatever. The penalty is imposed not to punish, but to compensate; and, although the justice has ignorantly entitled the suit in the name of the commonwealth, for. the use of the party aggrieved, yet that cannot alter the nature of what the legislature had in view — satisfaction for a private injury, without the smallest cast of an offence against the public.
Judgment affirmed.