Christman v. Moran , 1848 Pa. LEXIS 282 ( 1848 )

Gibson, C. J.

It is most true that arbitrators assembled and sworn, have not power to supply a vacancy, in .their number ; but they may supply it with the express or implied assent of the parties; and this distinguishes the ’case in hand from' Cross v. Wilson, 7 W. 495, in which the party affected by the award had done nothing to sanction the proceeding which led to it. In that case he had gone away protesting; in this he 'remained protesting, but participating. lie proceeded with' his defence protestando, but intending to take his chance before the arbitrators, and thus obtain the advantage of being loose or bound at his election. But he was bound to give up his chance or his objection, for they could not exist together. Had the arbitrators awarded in his favour, he might, notwithstanding his protest, have enforced the award; and mutuality of submission requires that both should be bound or neither. But had even both parties agreed to proceed, each reserving the same objection, neither would, according to the principle of the argument, have been bound, and the hearing would have been a mockery. By agreeing to go on, both waived the exception, and both are bound to stand to the award.

Judgment affirmed.