This suit was commenced in the Court of Common Pleas of Dauphin county, by Philip Breidenbach against Michael, Haak- The original plaintiff died after the commencement of the suit, and the now plaintiffs his executors were substituted in his place by virtue of an act of assembly providing for such cases. The pleadings are entered in short minutes, and I have found less difficulty . , . ,. , i , ,. , , in deciding the cause, than m understanding the record, which is confused to an extraordinary degree. It is an tion of debt on an arbitration bond, dated 4th August * 1 The defendant pleaded; 1. No award. 2. That the tors had misbehaved themselves in making the award. 3. ' -Recovery by the plaintiffs for the same cause in another . , •->/-. r r, action on the case, m the Court or Common Pleas of Dauphin county. To the first plea the plaintiff replied award which was set forth in hcec verba, and assigned for breach that the defendant had not paid the sum of 120/. mentioned in the award. To the second plea the plaintiff replied that the arbitrators hadnot misbehaved themselves, audio the ,. , ,, , , . , •third plea he replied, “ that there was no recovery for the same cause.” It is then stated in the record that there wure “ issues, and rule for trial.” I presume from the judge’s , , ,, - JO charge that issue was also joined on the plea or payment, with, leave to give the special matter in evidence. It has -always been the desire of this Court to support the judg- - r , • r • r- , 1-1-I 1 • ments oi the interior Courts, which have been given after trial of the merits. In order to accomplish this, we consider the short entries of pleadings in the same light, as if were formally drawn up, provided there is enough to shew the meaning of the parties. In the. present case it is hard to say whether the plea of a former recovery, &c. was intended to be tried by Court or jury. In fact it seems to have been tried by both, first by the jury and afterwards by the Court. Both tribunals however agreed in deciding against the 1 he matter m dispute between the parties,- is the damage done to the plaintiffs by the erection of a dam by the defendant on his own land, in consequence of which a stream • water was thrown back in such a manner as to overflow the plaintiff’s land, and injure his bark mill and spring, &c. former action had been brought, in which the plaintiff complained of the damage done by.the erection of the dam on *14the 10th day of August 1785, and the continuance of it until the 3d November 1788. The arbitration bond was founded on the same dispute. The defendant alleges, that the arbitrators gave damages for the same nuisance down to the 4th August 1786 so that the plaintiff if he succeeds in this action, will recover damages twice for the continuance of the nuisance from the 10th August 1785, to the 4th August 1786. The president of the Court of Common Pleas seems to have thought that this was the real point of dispute, and this he submitted to the jury as a matter of fact; for the Court suffered the defendant to give in evidence, the record of the former action under his plea of payment. The charge of the president is entered at large in the minutes, and that part which appears to me most material, for the decision of this cause, is in substance as follows. “ It is “contended for the plaintiff that the suit of November 1788, “ was not for the original matter which was determined by “ the arbitrators, but for only a continuance of the nuisance “ subsequently to the award, and for the damages sustained “ by the plaintiffs after the date of it; that although the de- “ claration states the erection of the nuisance on the 10th '■'■August 1785, and'the continuance of it from that period “to the time of purchasing the writ, yet that the actual claim . “ of the plaintiff, and the verdict rendered by the jury, did not “include damages for any injury sustained, previously to the “ date of the award. We are decidedly of opinion, that, not- “ withstanding the time stated in the declaration, the plaintiff “ was at full liberty to give evidence of damages done during “ part of the time laid, and the plaintiff’s counsel contend “that in that case the plaintiff did give evidence of damages “ sustained for a period, which did not overreach the date “ of the award. If this were the case, of which you are to judge “ from the facts adduced in testimony, then the plaintiff has “ not received payment or satisfaction for any part of his “ demand, and you will render a verdict for the amount “ awarded, with interest from the date of it to this time.”
It appears clearly from this part of the charge, that the jury were left to decide from the facts given in evidence; and it also appears, that when the defendant offered evidence to prove that in the former suit, the plaintiff gave evidence of damage sustained during the whole time laid in *15the declaration, and that the verdict was given accordingly, the Court rejected the evidence; so that the plaintiff was' permitted to give evidence to the same point on which the defendant’s evidence was refused. This cannot be right. Either the record was the only admissible evidence of the proceedings in the former suit, or it was not. If it was, neither plaintiff nor defendant should have been permitted to go out of it. But at all events,-what was permitted to one should have been permitted to the other. This alone is reason sufficient for reversing the'judgment and ordering a venire de, novo. It was said by the defendant’s counsel on-the argument, that the plaintiff gave no evidence to shew the time for which he recovered in the former suit. But I cannot reconcile this with the charge of the Court. There was another part of the president’s charge complained of by the defendant. He gave his opinion that when the arbitrators awarded that the defendant should pay 120/. in two years, viz. in yearly payments of 30/. each, the true construction was that the whole sum should be paid in two years, and the matter contained in the scilicet rejected; whereas according to the defendant’s construction, four years should be given for payment. But I think the charge was right. The business of a scilicet is to render something-more clear or certain which was expressed in doubtful or general terms before. If instead of doing this it contradicts or destroys what went before, it must be rejected altogether.
I cannot forbear expressing my hope that before this ac- ■ lion is brought to trial again, the’ pleadings, except the declaration j will by permission of the Court of Common Pleas be made de novo, and that they will be drawn up in form so as to leave no room to doubt what is their meaning. If the defendant intends to contest the validity of the award, his way is to plead no artvard; the plaintiff must then reply and set forth the award and breach, upon which the defendant must demur; short pleas ought not to be received but by consent. If either party requests his adversary to draw up his plea at large and it is refused, it will be good cause of demurrer, assigning the same specially for cause of demurrer. I am of opinion on the whole that the judgment should be reversed, and a venire facias de novo awarded.
Brackenridge J. concurred.Judgment reversed.