Mitchell v. Wilhelm

6 Watts 259

Opinion

Per Curiam.

It is plain, the number was not fixed exclusively, by the prothonotary. The entry, that the plaintiff made default, that the prothonotary chose for him, and that it was agreed the number of the arbitrators should be three, indicates too clearly, that the officer acted throughout only as the representative of the absent party; but the error in -permitting the defendant to have a voice in fixing the number as well as in choosing, is cured by the plaintiff’s subsequent appearance and want of dissent when the arbitrators were sworn. The remaining point, however, is fatal. No authority is given to supply vacancies a second time; and there would be no end to change, if such there were. The parties might begin with one set and end with a different one Even the late act on the subject, authorizes nothing like the power assumed here; which, by the way, was altogether unnecessary, as the consequences of absence for sickness might have been obviated by an adjournment.

Judgment reversed, and cause remitted for procedure below.