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ARBITRATION.

See CAPITAL AND LABOR: REFERENCE.

I. OF VOLUNTARY ARBITRATIONS.

1. Reference under act of 1705. Effect of award. 2. Controversies, not relating to the title of real estate, may be referred, by agreement.

3. Such agreement to be made a rule of court. 4. May be restricted to matters of fact. In such case, report to have the effect of a special verdict. 5. For what causes parties may except to an award.

6. How awards to be enforced.

7. Award made in an action pending, and referred by agreement, to have the effect of a verdict.

8. Court, on setting aside award, may refer the matter back to the arbitrators.

9. Voluntary arbitration laws extended to the inspectors of the penitentiaries.

II. OF COMPULSORY ARBITRATIONS. (1.) OF THE RULE OF REFERENCE. 10. Of the entry of the rule of reference.

11. Plaintiff must first file a declaration or state

ment.

12. Case set down for trial not to be referred, unless previously continued.

13. Defendant to file an affidavit of defence, before entering a rule of reference.

14. Prothonotary to enter rule, and deliver copy to the party.

35. Condition of plaintiff's recognizance.

36. Condition of defendant's recognizance. 37. Certain parties may appeal without paying costs or giving bail.

38. Bail on appeal from award. 39. In case of corporations.

40. By executors, &c.

41. Costs to be still paid on appeal. 42. To be taxed in appellant's bill.

43. Appeal not to be withdrawn unless by consent. 44. Execution to issue on judgment upon award.

(6.) MISCELLANEOUS PROVISIONS.

45. Penalty for neglect to serve copy of rule and certificate.

46. Penalty on arbitrator for neglect of duties of appointment.

47. Documents withheld from arbitrators not to be evidence on the trial.

48. Proceedings where prothonotary is interested. 49. Compulsory arbitration law not to extend to Philadelphia.

III. GENERAL DIRECTIONS RESPECTING REFEREES AND ARBITRATORS.

(1.) RESTRICTIONS ON RIGHT TO ARBITRATE. 50. Certain causes not to be referred.

15. Copy of certified rule to be served on the oppo- (2.) POWERS AND DUTIES OF REFEREES AND ARBIsite party. Mode of service.

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TRATORS.

51. Power of referees and arbitrators to issue subpœnas and attachments.

52. Form of subpoena.

53. Form of attachment.

54. Power to punish for disorderly conduct. 55. Form of certificate of fine in such cases. 56. To be transmitted to a justice, and fine collected by execution.

57. Arbitrators may require payment of costs on adjournment.

58. Arbitrators may compel production of books, &c., in actions by and against canal and railroad companies.

(3.) MISCELLANEOUS PROVISIONS.

59. Prothonotary and justices may issue subpœnas. 60. Depositions of witnesses may be taken. 61. Penalty for attempting to corrupt arbitrators. 62. Punishment of arbitrators for taking bribes. 63-4. Compensation of arbitrators.

65. Fees.

66. How fines to be recoverable.

IV. COURTS OF CONCILIATION.

67. License for establishment of tribunal.

68. Form of petition. By whom signed. Testimony as to character of petitioners. When license refused.

69. Qualifications of petitioners. Petition to be verified.

70. When license to issue. 71. Conditional license.

diction. Vacancies, how filled. Reference to adjoin72. One tribunal for each trade. Term and jurising county. Umpires. Their award to be final. 73. Composition of tribunal. Organization. 74. Compensation. Expenses.

75. Power of chairman. Of umpires. Attorneys, &c., not to appear. Decision of questions of evidence. Committees. Their duties. Rules of practice.

76. Questions in dispute to be plainly defined in writing. Submission, &c., to be stated. Umpires to be sworn. To file award within ten days. Record. Duties of judge. Judgment in award.

77. Citation of act.

78. Form of petition.

79. Form of license.

80. Form of submission. Form of award.

I. Of voluntary arbitrations.

1. In all cases (w) where the plaintiff and defendant, (x) having accounts to pro- 1705 § 3. 1 Sm. 50. duce one against another, (y) shall by themselves, or attorneys or agents, consent Reference under to a rule of court(z) for referring the adjustment thereof to certain persons, act of 1705. mutually chosen by them in open court, the award or report of such referees, (a)

being made according to the submission of the parties, and approved of by the Effect of award. court, and entered upon the record or roll, (b) shall have the same effect, and shall be deemed and taken to be as available in law, as a verdict given by twelve men; (c) and the party to whom any sum or sums of money are thereby awarded to be paid, shall have judgment, or a scire facias (d) for the recovery thereof, as the case may require, and as is hereinbefore directed concerning sums found and settled by jury.

2. It shall be lawful for all persons desirous to end, by arbitration, any contro- 16 June 1836 § 1. versy, suit or quarrel, except such as respect the title of real estate, to agree, in P. L. 717. writing, that their submission of the same to the award or umpirage of any person Controversies, not or persons, shall be made a rule of any court of record of this commonwealth, (e) relating to the title having jurisdiction, which the parties shall choose, and they shall insert such their of real estate, may agreement in their submission, or the condition of the bond or promise whereby agreement. they may oblige themselves, respectively, to submit to the award or umpirage of any person or persons.(g)

be referred by

Ibid. § 2.

3. When any agreement shall be made as aforesaid, and inserted in the submission, or promise, or condition of the respective bond, the same shall, upon produc- Such agreement to ing an affidavit thereof, (h) made by the witnesses thereto, or any one of them, in be made a rule of the court of which the same is agreed to be made a rule, and filing the said affi- court. davit in court, be entered of record in such court, and a rule shall, thereupon, be made by the said court, that the parties shall submit to, and finally be concluded by the arbitration or umpirage, which shall be made pursuant to such submission. 4. It shall be lawful, also, for the parties to any suit(i) to consent, as aforesaid, to a rule of court,(k) for referring all matters of fact in controversy in such suit to

(w) This act is not supplied by the revised act of 1836. Pennington v. Bowman, 10 W. 285. Brooke v. Bannon, 3 W. & S. 384. Nor by the act of 21 March 1806. Massey v. Thomas, 6 Binn. 336. Kimmel v. Shank, 1 S. & R. 24. Duer v. Boyd, Ibid. 209. Sutton v. Horn, 7 Ibid. 228. Herman v. Freeman, 8 Ibid. 9. White v. Shriver, 2 W. 471. Book v. Edgar, 3 Ibid. 30. Gallup v. Reynolds, 8 Ibid. 424. Pennington v. Bowman, 10 Ibid. 285. Coleman v. Lukens, 4 Wh. 356. But the act of 1836 is, in substance, a reenactment of it. Painter v. Kisler, 59 P. S. 333.

(x) There must be an action pending. White v. Shriver, 2 W. 473. Book v. Edgar, 3 Ibid. 31. Or an agreement for an amicable action entered, before or at the time of filing the award. Massey v. Thomas, 6 Binn. 335. Herman v. Freeman, 8 S. & R. 9.

(y) Though the act only mentions cases where accounts are to be produced, it has, by long and universal practice, been extended to every kind of action depending in court. Book v. Edgar, 3 W. 31. Hooton v. Will, 1 Dall. 450.

(z) The agreement need not expressly provide that the submission be made a rule of court; a reference to the action is sufficient, for then there is a plain implication of an intended rule. McAdams's Executors v. Stilwell, 13 P. S. 98. Ford v. Keen, Ibid. 179. And see Large v. Passmore, 5 S. & R. 51. Book v. Edgar, 3 W. 31. Okison v. Flickinger, 1 W. & S. 257.

(a) The award must be signed by all the referees. Okison v. Flickinger, 1 W. & S. 258.

(b) An execution issued before judgment on the award, is void. Book v. Edgar, 3 W. 29.

(c) A reference and award have a conclusive effect in determining a dispute about a personal right. Speer v. McChesney, 2 W. & S. 234. But in ejectment, it does not bar another action. Duer v. Boyd, 1 S. & R. 209. As to its effect in ejectment, see Ives v. Leet, 14 S. & R. 303. Referees cannot give costs, when a verdiet would not carry them. Guier v. McFaden, 2 Binn. 587. Stuart v. Harkins, 3 Ibid. 321. Clark v. McKisson, 6 S. & R. 87. Holdship v. Alexander, 13 Ibid. 230.

(d) By act 12 April 1848, § 12, P. L. 537, the defendant, on a verdict in his favor, may have judgment and execution, without resorting to a sci. fa., as required by the act of 1705; see "Defalcation," 3.

(e) If the submission contain no agreement that it be made a rule of court, it is wholly imperative, under this section. Benjamin v. Benjamin, 5 W. & S. 562. Marshall v. Bozorth, 17 P. S. 409. Otis v. Northrop, 2 M. 351. Nor is a provision, that the submission is

Ibid. § 3.

"under the act of 1836," equivalent thereto. Benjamin v. Benjamin, 5 W. & S. 562. The common law, however, requires no particular form to constitute a valid submission; nor is it necessary that it should be in writing; neither is it necessary that the award should be in writing, unless required by the submission; an agreement of the parties to refer, and the award of the referee, whether in writing or not, are equally binding on them. McManus v. McCulloch, 6 W. 357. See Gay v. Waltman, 89 P. S. 453.

(g) General covenants, providing for the settlement, by arbitration, of disputes that may arise between the contracting parties, do not take away the jurisdiction of the courts. Gray v. Wilson, 4 W. 39. If, however, parties stipulate that disputes, actual or prospective, shall be submitted to the arbitrament of a particular individual or tribunal, they are bound by their contract, and cannot seek redress elsewhere. Leebrick v. Lyter, 3 W. & S. 365. Monongahela Navigation Co. v. Fenlon, 4 Ibid. 205. McGheehen v. Duffield, 5 P. S. 499. Snodgrass v. Gavit, 28 Ibid. 221. Lauman v. Young, 31 Ibid. 306. McCahan v. Reamey, 33 Ibid. 535. Herdie v. Bigler, 47 Ibid. 60. Reynolds v. Caldwell, 51 Ibid. 298. Irvin v. Schultz, 46 Ibid. 74. Hartupee v. Pittsburgh, 97 Ibid. 107. But in order to oust the jurisdiction of the courts, it must clearly appear that the subject-matter of the controversy was within the prospective submission. Lauman v. Young, 31 P. S. 306. And see Memphis Railroad Co. v. Wilcox, 48 Ibid. 161. O'Reilly v. Kerns, 52 Ibid. 214. Reading Industrial Manufacturing Co. v. Graeff, 64 Ibid. 395. And if the stipulation in the contract were, to refer all matters of dispute growing out of it, to the judgment of three arbitrators, mutually chosen, it is not available as a defence to an action on the contract, unless accompanied by proof that the party setting it up, offered to choose arbitrators, and that the other refused to do so; in the absence of such proof, it will be presumed that the prospective submission was waived. Snodgrass v. Garit, 28 P. S. 321.

(h) An agreement, submission and award, are not entitled to entry, without such affidavit; but the want of it will render the judgment voidable only, not absolutely void. Wall's Administrators v. Fife, 37 P. S.

394.

An affidavit is not requisite on the submission of

a pending suit. Shisler v. Keavy, 75 Ibid. 79.
(i) This is confined to actions at common law; a
suit in equity cannot be referred. Cotton v. Babcock,
64 P. S. 462.

(k) Where an action is pending, it is unnecessary

16 June 1836 § 3.

P. L. 717.

May be restricted

to matters of fact.

In such case, report to have the

effect of a special

verdict.

Ibid. § 4. For what causes,

parties may except to an award.

Ibid. § 5.

referees, as aforesaid, reserving all matters of law arising thereupon for the decision of the court, and the report of such referees(1) setting forth the facts found by them, shall have the same effect as a special verdict, and the court shall and may proceed thereupon, in like manner as upon a special verdict, and either party may have a writ of error, to the judgment entered thereupon, as in the case of a judgment entered upon special verdict.

5. The party against whom an award shall be made, as aforesaid, may except (m) thereto, within such time as the court, by their rules, shall direct, for either of the following causes, and for no other, viz. :

I. That the arbitrators or umpire misbehaved themselves in the case, or II. That they committed a plain mistake in matter of fact, or matter of law, (n) or III. That the award was procured by corruption, or other undue means.(0) 6. If exceptions shall not be filed within the time limited as aforesaid, or if How awards to be upon exceptions filed the court shall confirm the award, the party neglecting or refusing to perform and execute the same, or any part thereof, shall be liable to all the penalties of contemning a rule of court, when he is a suitor or defendant in such court, and the court, on motion, may issue process accordingly, or the said court may, on motion, award an execution or executions, to carry the same into effect.

enforced.

Ibid. § 6.

Award made in an action pending, and referred by agreement, to have the effect of a verdict.

Ibid. § 7. Court may refer

7. In all cases where the parties to any suit shall, by themselves, their attorneys or agents, consent to a rule of court, (p) for referring the matters in controversy in such suit to certain persons mutually chosen by them, the award of such referees, (7) if made according to the submission of the parties, being approved of by the court,(r) and entered upon the record, shall have the same effect, and shall be deemed and taken to be as available in law as the verdict of a jury, and the party in whose favor such report shall be made, whether plaintiff or defendant, shall have judgment thereon, and the like process for the recovery thereof, as on a verdict in an action commenced by such party.(s)

8. If, upon exceptions filed to any award, it shall appear to the court that the referees have made a mistake, in fact or law, it shall be lawful for such court to the matter back to refer the cause back to the same referees, for such further or other proceedings therein as shall be expedient. (t)

the arbitrators.

10 April 1848 § 2. P. L. 425.

9. The inspectors of the eastern and western penitentiaries shall, in addition to the powers and duties already given to them, have power, and are hereby directed Voluntary arbitra- to agree to refer to arbitrators or referees, under and pursuant to the provisions of tion laws extended the voluntary arbitration laws now in force, all disputes which have arisen or may the penitentiary. arise between the said prisons, their agents, or the inspectors thereof, or either of

to the inspectors of

to provide that the submission be made a rule of court. McAdams's Executors v. Stilwell, 13 P. S. 90. Buckman v. Davis, 28 Ibid. 211. Quay v. Westcott, 60 Ibid. 163. Summy v. Hiestand, 65 Ibid. 300. Insurance Co. v. McLaughlin, 80 Ibid. 53. It is implied, when it appears to be the intent of the parties. Painter v. Kaisler, 59 Ibid. 332. Reading Industrial Manufacturing Co. v. Graeff, 64 Ibid. 395. A reference to the action is sufficient. Coleman v. Lukens, 4 Wh. 347. Ford v. Keen, 13 P. S. 179. But consent to make the reference a rule of court, will not be implied, when such intent does not appear, or a contrary intent is manifest. Brendlinger v. Yeagley, 53 Ibid.

464.

(1) All the referees must agree to an award unless the agreement of reference authorizes an award by a majority. Walters v. Pittit, 12 C. C. 431.

(m) A court of error will not notice exceptions resting on facts extrinsic of the record. Exceptions founded on alleged want of notice, substitution of one referee for another, adjournments to another place without the assent of the parties, and the like, are peculiarly the province of the court below, and will not be considered on error, even though the depositions be sent up with the record. Browning v. McManus, 1 Wh. 177. Rogers v. Playford, 12 P. S. 184. Buckman v. Davis, 28 Ibid. 211. And see Fairchild v. Hart, 4 Phila. 227.

(n) It is not such mistake in law, that the referees refused to enforce the penalty of the act of 1798, for the non-production of books and papers. Gardner v. Lincoln, 5 Phila. 24.

(0) The same causes which would induce the court to set aside a verdict, and grant a new trial, are sufficient to vacate an award. Williams v. Craig, 1 Dall. 315.

(p) It must be such as can be enforced by execution, or it is bad. Coleman v. Lukens, 4 Wh. 347. Pennington v. Bowman, 10 W. 283. Sicard v. Peterson, 3 S. & R. 468. Williams v. Landon, 14 Ibid. 338. Wood v. Earl, 5 R. 44. Brown v. Long, 4 Clark 436. Johnston v. Brackbill, 1 P. & W. 364.

(9) The parties may stipulate that the decision of less than the whole number of referees shall be final. Ford v. Keen, 13 P. S. 179. The reference cannot be revoked, after the award is filed. Keavy v. Shisler, 8 Phila. 54; s. c. 75 P. S. 79. See Johnson v. Andress, 5 Phila. 8.

(r) An award under this section has not the effect of a judgment, unless approved by the court and judgment entered on it. Steele v. Lineberger, 59 P. S. 308.

(s) Such award cannot be enforced by attachment, nor in any other mode than the proper writ of execution. Coleman v. Lukens, 4 Wh. 347. It has no greater effect than a verdict, until judgment absolute be entered on it; the entry of a judgment nisi does not constitute a lien. Stephen's Executors' Appeal, 38 P. S. 9.

(t) An award may be referred back to the referees to correct informalities. Thompson v. Warder, 4 Y. 336. Snyder v. Hoffman, 1 Binn. 43. Shaw v. Pearce, 4 Ibid. 485. Christmas v. Thompson, 3 S. & R. 133. The court has no power to alter an award, even if illegal on its face. Post v. Sweet, 8 S. & R. 391. But if substantially defective, it should be set aside. Etter v. Edwards, 4 W. 63. And after a reversal on error, the court cannot, without the consent of the parties, refer it back. Coleman v. Lukens, 3 W. & S. 37. Yet, if the parties appear before the referees, the error will be thereby cured. Brooke v. Bannon, 3 W. & S. 382. If the submission provide that the award shall be final and conclusive, and that neither party shall have a right to appeal, or file exceptions to it; the parties are concluded by their agreement, and have withdrawn from the court its power to rectify a mistake of fact on the part of the referees, on exception to the award. McCahan v. Reamey, 33 P. S. 533. But for corruption or misbehavior of the arbitrators, any award, either at common law, or statutory, may be assailed, notwithstanding a stipulation that there shall be no exception or appeal. Spear v. Bidwell, 44 P. S. 23.

P. L. 428.

them, and any person or persons who may have sent or shall send raw materials to 10 April 1848 § 2. them, respectively, for the purpose of being manufactured by the convicts in the said prisons, or either of them; and to take such further proceedings in such references as shall enable a full and fair hearing and investigation of all the accounts, statements and proofs touching the same, and a just and speedy decision of such claims and disputes, by such referees to be mutually chosen by said parties; and the decision of such referees or arbitrators in the premises to be filed under a rule of court, shall be final and conclusive; and the sum awarded shall be collected and paid to the successful party, as like amounts are, in such cases of reference, by law recoverable; and in case said parties cannot agree upon a third referee or arbitrator, he shall be selected and appointed by the other two referees so to be chosen by the said parties.

II. Of compulsory arbitrations.(u)

(1.) Of the rule of reference.

10. It shall be lawful for either party in any civil suit or action, (v) his agent or 16 June 1836 § 8. attorney, to enter at the prothonotary's office (w) a rule of reference,(x) wherein he P. L. 719. shall declare his determination to have arbitrators chosen, on a day certain, (y) to Of the entry of the be mentioned therein, not exceeding thirty days thereafter, for the trial of all rule of reference. matters in variance in the suit between the parties.

11. Provided, That it shall not be lawful for the plaintiff in any suit to enter such rule, until after a declaration or statement of the cause of action shall have been filed by him. (z)

Ibid. § 9. Declaration.

Ibid. § 10.

12. And provided also, That no suit or action which shall be set down for trial at any court, shall be referred (except by consent of parties) within thirty days Case set down for before, nor during the sitting of such court, unless such suit or action shall have trial not to be been previously continued to the next term.

referred.

14 May 1874 § 1. P. L. 159.

defence, before

13. It shall not be lawful, in any civil suit or action in any court of this commonwealth, wherein the affidavit of claim is or may be required, and in which the plaintiff, by himself or his agent or attorney, shall have filed an affidavit of claim Defendant to file setting forth the nature and amount thereof, and shall have also filed a declaration an affidavit of or statement, for the defendant to enter a rule of reference, declaring his intention entering a rule of to have arbitrators chosen, unless he shall have previously filed an affidavit of reference. defence, specifically setting forth the nature and character of the same; and a rule of reference shall in no case prevent the plaintiff from moving for, or the court from entering, judgment for want of a sufficient affidavit of defence.

P. L. 719.

14. It shall be the duty of the prothonotary with whom any such rule shall be 16 June 1836 § 11. filed, to enter the same of record, and to deliver to the party filing the same, a copy thereof, duly certified.(a)

15. It shall be the duty of the party, his agent or attorney entering the rule as aforesaid, to cause a copy of such certified rule to be served on the opposite party, his agent or attorney, (b) at least fifteen days before the day fixed in such rule for

(2) The compulsory arbitration law is not unconstitutional. McDonald v. Schell, 6 S. & R. 240. And see Commonwealth v. Bennett, 16 Ibid. 244.

64

(2) An action on a sheriff's bond may be arbitrated. Gordon v. Commonwealth, 10 W. 443. Or on an insolvent bond. Bowman v. Sharp, 6 W. 324. Or an arbitration bond. Stout v. Commonwealth, 2 R. 341. A recognizance of bail in error. Stevenson v. Docherty, 3 W. 176. A recognizance of bail for stay of execution. Pettit v. Wingate, 25 P. S. 74. A sci. fa. on an award in favor of a defendant. Hill v. Crainford, 8 S. & R. 477. Appeals from reports of county auditors, by act 14 April 1838, § 10; see County Auditors." 21. And account-render, by act 30 March 1821. § 1; see "Account," 1. So, if judgment on a special verdict be reversed and sent back, the case may be arbitrated. Steinbrook v. Steinbrook, 2 P. & W. 165. And a sci. fa. to revive a judgment, notwithstanding a plea of nul tiel record. Lange v. Stouffer, 16 P. S. 251. But a suit in equity, commenced by bill, cannot be arbitrated; nor a case in which a judgment by default has been opened on terms; nor an action on a bail-bond; nor a cause which has been brought to an issue of law, by demurrer. Taggart v. Fox, 1 Gr. 192. Nor an issue of fact directed by the court. Hoffman v. Walborn, 1 Pears. 18. A criminal prosecution, whether by indictment or action, is not within the purview of the compulsory arbitration act; as an action to recover a penalty for a breach of the revenue laws. Buckwalter v. United States, 11 S. & R. 193. On the other hand, an action for a penalty, which is imposed, not to punish the act as an offence, but to compensate the party aggrieved, as an action to recover the penalty for omitting to serve notice of the

Entry of rule.

Ibid. § 12.

meeting of arbitrators, or the penalty for taking illegal fees, which are strictly private injuries, may be referred, at the option of either party. Commonwealth v. Bennett, 16 S. & R. 243. Mevay v. Edmiston, 1 R.

457.

(w) A rule of reference may be entered before the return-day. Hertzog v. Ellis, 3 Binn. 209. Henness v. Meyer, 4 Wh. 358. Burke v. Matthews, 2 Phila. 282. But in such case, the summons must be served before, or contemporaneously with, the service of the rule of reference. Fehr v. Reich, 36 P. S. 472.

(x) A rule of reference, not acted on, may be treated by either of the parties as a nullity. Camp v. Bank of Owego, 10 W. 133. The cause is not out of court, until the arbitrators are chosen. Hoffman v. Locke, 19 P. S. 57. But if the first rule have been acted on, a second cannot be entered, until the first is discharged by the court. Barnet v. Hope, 5 Binn. 518. Smith v. Bartolett, 18 Leg. Int. 110.

(y) The time may be altered, after entering the rule, if before notice. Crawford v. Gable, 2 P. S. 444.

(2) If the declaration be filed on the same day on which the rule is entered, the award is good, and the court will not inquire which was prior in time. Wright v. Guy, 10 S. & R. 227. If the declaration be defective, the remedy is by appeal, and not by writ of error. Waage v. Weiser, 5 Wh. 307. Orlady v. McNamara, 9 W. 192. Royer v. Myers, 15 P. S. 89.

(a) See infra 48, for the proceedings where the prothonotary is a party.

(b) If there be several defendants, service must be made on each of them. Pedan v. Cox, 3 S. & R. 245. Marshall v. Lowrey, 6 Ibid. 281. Ranck v. Becker, 12 Ibid. 412. Beltzhoover v. Commonwealth, 1 W. 126.

16 June 1836 § 12. the appointment of arbitrators; and the manner of such service shall be, by deliv

P. L. 719.

Copy of certified

rule to be served 'on other party. Mode of service.

16 June 1836 § 13. P. L. 719.

Fixing the number of arbitrators.

Nominations to be

tiff.

ering such copy to the party personally, his agent or attorney, or if the said party cannot be found, and have no agent or attorney, by leaving such copy at his last place of abode; and in the case of a corporation, such copy shall be served on the president, or other principal officer, cashier, secretary or chief clerk of the corporation.

(2.) of the appointment of the arbitrators.

16. On the day fixed for the appointment of arbitrators, if both parties attend, (c) either in person or by their agents or attorneys, the arbitrators shall be chosen in the following manner, viz.:

I. The number of the arbitrators, which shall be either three or five, shall be fixed by the parties, or if they cannot agree, by the prothonotary, Provided, That the parties may agree to refer the cause to any one person whom they shall concur in choosing.

II. If the number fixed be three, the plaintiff shall then nominate one person, if made by the plain- five, he shall nominate two, and if all, or either, be objected to by the defendant, he shall nominate other persons in place of those objected to, until he shall have nominated six persons for every person so allowed by him to be nominated.

And by the defend

ant.

How umpire to be chosen.

Mode of appointment where the parties cannot agree.

Ibid. § 14.

Proof of service of
the rule to be
made.

Prothonotary to

III. The defendant shall then nominate in like manner, an equal number of persons, subject in like manner to objection on the part of the plaintiff.

IV. If the parties agree in the choice of arbitrators, as aforesaid, the umpire shall be chosen as follows: The parties shall nominate alternately, beginning with the plaintiff, seven persons, the opposite party having the right to object to the nomination, and if all the persons thus nominated be objected to, the prothonotary shall nominate a suitable and disinterested person; if he be objected to, he shall name another, and so on, until he shall name seven persons, and if all be objected to, he shall make out a list of five such persons, and the parties shall then strike out alternately, beginning with the plaintiff, until the name of only one person be left, who shall be the umpire.

V. If the parties cannot agree in the choice of arbitrators, as aforesaid, the prothonotary shall make out a list, containing the names of five suitable and disinterested persons for each of the number of arbitrators, so as aforesaid fixed upon, from which list, the parties shall strike out, alternately, beginning with the plaintiff, until the number be left which was so fixed, and the persons so selected shall be the arbitrators.

VI. If the parties agree as to one or more of the arbitrators, and differ as to one or more, the like proceedings shall be had to supply the deficiency, and complete the number of arbitrators so fixed upon.

17. If only one of the parties attend on the day fixed for the appointment of the arbitrators, the proceedings shall be as follows:

I. If the party attending be the party by whom the rule of reference was entered, proof shall be made that the notice was duly served on the opposite party in the manner hereinbefore provided, and the proof of the service shall be the oath or affirmation of the person by whom it was made.

II. It shall be the duty of the prothonotary to fix the number of the arbitrators, fix the number and to nominate for the absent party, and to object to the nominations made by the party present, if he shall think it necessary.(d)

act for absent

party.

Mode of appoint

ment in case of disagreement.

Ibid. § 15.

III. If in such case all the persons nominated on either side shall be objected to, the like proceedings shall be had for the choice of arbitrators as if both parties were present, except that the duties required to be performed by the prothonotary in such case shall be performed by the recorder of deeds, the sheriff, coroner or treasurer of the proper county.

18. The day, hour and place of meeting of the arbitrators shall be fixed by the Time and place of parties, if present, and able to agree thereupon, but otherwise it shall be the duty of the prothonotary to determine the same: Provided, That in such case the day and [of] meeting shall not be less than ten or more than twenty days after their appointment. (e)

meeting, how fixed.

But if one appear and act as the agent of the other, an award against both will be good, on error. Whitehill v. Whitehill, 17 S. & R. 295.

(c) The appearance of one of the defendants for himself and on behalf of his codefendants is sufficient, if acquiesced in. Whitehill v. Whitehill, 17 S. & R. 295.

(d) If but one party attend, the number of arbitrators must be fixed exclusively by the prothonotary; if fixed by the prothonotary and the party, it is error. Mitchell v. Wilhelm, 6 W. 259. Feehrer v. Rudy, 7 W. & S. 183. Smith v. Bartolett, 18 Leg. Int. 110. But in the absence of evidence to the contrary, it will be presumed, that the number was fixed upon by the officer, in accordance with his duty. Withers v. Haines, 2 P. S. 435. And if the prothonotary record that he acted for the absent party in choosing arbi

trators, but do not specify the mode of selecting them, the presumption is, that he did it in due form of law. Steele v. Herrington, 1 Gr. 442. Where the plaintiff's attorney handed a list of three names to the prothonotary, to which he added those of four other persons, and thereupon the plaintiff's attorney and the prothonotary alternately struck one name from the list, until the first three persons were left, who were certified to be the arbitrators appointed, the court set aside the proceedings, and said that they were highly irregular and improper. Cave v. Crumley, 1 Clark 312.

(e) If the prothonotary fix the time of meeting at a period less distant than the law prescribes, in the absence of the opposite party, the judgment is erroneous. Kirk v. Eaton, 10 S. & R. 103. Unless the defect be cured by an appearance. Ibid. Stout v. Commonwealth, 2 R. 341.

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