1. That the period fixed for the meeting of the arbitrators was less than 20 days from their appointment.

2. That the defendant below had not notice of the time and place of choosing the arbitrators.

3. That the defendant below had not 15 days notice of the time and place of meeting of the arbitrators.

Lewis, for the plaintiff in error.

1. The appointment of the arbitrators took place on the 20th September, and their day of meeting was appointed for the 5th October, whereas the arbitration act expressly requires, that it shall not be less than 20 days. The words of the act of 20th March, 1810, sect. 7 Purd. Dig. 13, are, "that it shall be the duty of the prothonotary to fix a day and hour certain, on which the arbitrators shall meet, which shall not be less than ten nor more than twenty days in the city and county of Philadelphia, and not less than twenty nor more than thirty days in the other counties of this commonwealth, after their appointment, and the place of meeting of such arbitrators shall also be fixed by the prothonotary: proved that if the parties can agree, they may fix the time when and the place where, the arbitrators are to meet. There was in the present instance no agreement fixing the time and place: indeed the defendant was not present when it was done: the only persons that took part in it were the prothonotary and the plaintiff. The principle established by this court was declared in Oppenheimer v. Comly, 3 Serg. & Rawle, 3, to be, that while the proceedings remain in court, that is to say until the arbitrators are appointed, it must appear by the record that every thing is regular. The arbitrators cannot be appointed ex parte, unless it appear on the record that the absent party had notice.

2. The second error was also a deviation from the act of assembly, which requires in the 1st sect. that the party entering a rule of reference shall serve a copy on the adverse party, and that the proof of service shall be the oath or affirmation of the party serving the same. No other proof can be admitted. The prothonotary has no right under the act to dispense with the proof it requires.

3. The defendant was entitled under the 8th section of the arbitration act, Purd. Dig. 13, to at least 15 days notice of the names of the arbitrators, and of the time and place they were to meet, to be proved by the oath or affirmation of the party serving the same. No such notice was given in the present case: and it cannot be contended that it was cured, because the defendant did not appear before the arbitrators. Indeed it was impossible to give 15 days notice, if the last day be excluded; for there would then be an interval of only 14 days from the 20th September to the 5th October. As to the suggestion that the defendant by having the sale set aside on one venditioni exponas, and by finally ruling the sheriff to bring the money into court, has released the errors, the defendant in er

(Kirk v. Eaton, for the use of Coleman.)

ror has not pleaded a release of errors: he has joined issue on the plea in nullo est erratum.

Cassat and Hopkins, contra. There is but one objection of any weight to the regularity of the proceedings, and that is that the period fixed for the appointment of the arbitrators was less than 20 days. As to the want of notice of choosing the arbitrators, it appears by the record that the defendant acknowledged the service of notice of the rule for their appointment: and it also appears that proof was made before the arbitrators of notice having been given of their time and place of meeting. Indeed, what passes after the arbitrators are chosen, need not appear on the record. Oppenheimer v. Comly, 3 Serg. & Rawle, 3. Then as to the objection of the period being less than 20 days, it sufficiently appears by the record, that the appointment of the day and place of meeting of the arbitrators was made with the defendant's consent. It is admitted that the prothonotary alone cannot fix on any period less than 20 days, but the party may agree upon any other time, according to the proviso in the 7th section. And as every act of an authorised public officer will be presumed to be rightly done, Jones v. Maffet, 5 Serg. & Rawle, 535, the court will construe the proceeding favourably to support and not destroy the validity of the judgment. Here the record does not say who made the appointment of the time and place of meeting. The expressions are," plaintiff and prothonotary appoint, &c. arbitrators to meet, &c.;" so that the appointment of the time and place of meeting, is a distinct matter from that of the arbitrators, and as the defendant and his attorney were present, the presumption is they consented to the appointment of the time and place of meeting. But can a man take a writ of error on a judgment on a scire facias? We contend that he cannot: it is only a derivative suit. Another ground against the writ of error is, that after execution and sale of the defendant's property, he moved the Court of Common Pleas to set aside the sale, and succeeded in the first instance; and again, he moved for a rule on the sheriff, for the purpose of ascertaining how the money levied had been appropriated. He did this on the ground of the previous proceedings having been good, and this is a waiver of his right to take advantage of an irregularity. The reversal of this judgment will be against the clear justice of the case, and will be followed by much inconvenience, the writ of error having been so long delayed, and the money paid over in part to other judgment creditors.

Durkee, in reply. This is not an attempt to reverse a judgment after a trial on the merits. The defendant was never heard before the arbitrators. The act of assembly is positive in the 1st section. as to the service of notice of the appointment of arbitrators: "the proof of service shall be the oath or affirmation of the person serving the same." The prothonotary had no right to record the acknowledgment of the party. The prothonotary says that the plaintiff appeared, but not that the defendant appeared. The words are,

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(Kirk v. Eaton, for the use of Coleman.)

"defendant and his attorney acknowledged the service." Then as as to the time, it must be not less than 20 days, unless under the proviso the parties agree, sect. 7. If any such agreement took place it ought distinctly to appear on the record. The argument is founded on an alleged waiver of the time prescribed by law, by the acts of the defendant. It is reasonable that appearance should cure a defect in process before trial, because the party appearing has his chance of defence on the merits. But even an appearance will not cure a defect in the declaration. Here the record does show that the defendant applied to the court below to set aside the sale, or for a rule on the sheriff, to show how the money had been appropriated. These motions might have been made by other persons. But if he had made these motions they would not be any waiver of defects in the judgment, or bar him of his writ of error.

The opinion of the court was delivered by

TILGHMAN. C. J. This is a writ of error to the Court of Common Pleas of York county, on a judgment obtained by David Eaton, for the use of Robert Coleman, against Caleb Kirk, on a scire facias post annum, &c. The original judgment was confessed by the defendant, and remains in full force. The scire facias was referred to arbitrators, under the act regulating arbitrations, and an award was made in favour of the plaintiff, for the sum of 2418 dollars and 12 cents, and costs. Execution was then issued, by virtue of which the defendant's land was levied on, and sold, and the money paid by the sheriff, part to the creditors of the defendant, who had a lien on his lands prior to the plaintiff's judgment, and the residue to the plaintiff, to be applied, as far as it went, towards the satisfaction of his judgment.

The errors assigned in the record of the judgment, may be reduced to two heads: 1. That the defendant was not served with notice of the rule of reference. 2. That the prothonotary appointed a less time than 20 days, for 'the meeting of the arbitrators.

1. The act of assembly directs, that the party at whose instance the arbitrators are appointed, shall take out a rule of reference properly authenticated, and serve it on the adverse party; and "that the proof of service shall be by oath or affirmation of the person serving the same." In this case, it appears by the record, "that the defendant and his attorney acknowledged the service of the notice." Now where can be the necessity of proof, when the party acknowledges the fact? If such acknowledgment had not been made, proof would have been necessary, and then the kind of proof required by the act, would have been essential. It was for the sake of the defendant that the law prescribed the mode of proof. defendant then, may waive the advantage that the law gave him. By so doing he saved the costs of the probate, and that was probably the reason of his dispensing with it. This exception, therefore, is not good.

The

(Kirk v. Eaton, for the use of Coleman.)

2. The 2d error is more substantial. It is enacted by the 7th section of the act, that it shall be the duty of the prothonotary to fix a day and hour certain, on which the arbitrators shall meet, which shall not be less than 20, nor more than 30 days after their appointment, (except in the city and county of Philadelphia,) and the place of such meeting shall also be fixed by the prothonotary; provided always that if the parties can agree they may fix the time when and the place where the arbitrators are to meet. In the present instance, the entry on the docket is as follows: "plaintiff and prothonotary appoint Samuel Heckert and George Haller, Esquires, and Jacob Upp, arbitrators, to meet at Clement Stillingers, York, on the 5th October next." This appointment was made on the 20th September, so that there was not 20, nor even 15 days, between the time of appointment and time of meeting. The defendant did not appear before the arbitrators, so that there is no ground for saying that he cured the defect of notice by his subsequent conduct. But the counsel for the plaintiff contend, that the appointment was made by the agreement of the parties, although the docket entry is equivocally expressed. It is possible that it may have been so, but strong as my inclination is, to support awards where there is no reason to think that injustice has been done, I cannot find enough on this record to warrant the conclusion, that the time of meeting was fixed by the agreement of the parties. It certainly is not so expressed. The words are, that the plaintiff and prothonotary appoint the arbitrators to meet on the 5th October. But this is not all. The defendant took no part in the appointment of the arbitrators, from which it may be presumed, that he was not present. This is a very material circumstance; if he was not present, he could not have agreed. If it had appeared that he was present, there might be some plausibility in the argument of the plaintiff's counsel. But that not appearing, we must not distort the docket entry, nor force the words from their obvious meaning. Understanding then, that the prothonotary fixed the time of meeting contrary to law, the proceedings of the arbitrators have no foundation to rest on, and the judgment must be erroneous. But the defendant asks for restitution. Under the circumstances of this case, that is a very important question. The plaintiff's original judgment, which was a lien on the defendant's land, is in force. But the lien is gone, by the sale of the land, because the purchasers will hold it, notwithstanding the judgment be reversed. Then if the money be put in the hands of the defendant, all security is gone. It appears, that the defendant is in bad circumstances. The proceeds of sale did not pay the whole of the plaintiff's debt. The plaintiff ought not to hold the money, after the reversal of the judgment. But he has a right to ask of the court, that they will place it, where it may be found if it shall be proved that he has not received satisfaction for his original judgment. We cannot presume, that the judgment has been satisfied. Its strength is not at all impaired by the reversal of the pro

(Kirk v. Eaton, for the use of Coleman.)

ceedings on the scire facias. I do not recollect that a case so circumstanced has hitherto been before the court, We have said, that in general, restitutio is a matter of course. But it will be found that in the cases which have been decided, the original judgment has been reversed, and then there is no room for presumption that there is any thing due to the plaintiff, or if the original judgment has not been reversed, there has been no suggestion, that the security of the plaintiff would be endangered by the restitution. The defendant will obtain substantial justice, and ought to be satisfied, if the money in the hands of the plaintiff be deposited in court, subject to the event of a trial on the issue of payment, in another scire facias to be sued out by the plaintiff. If indeed, the defendant had a right to an award of restitution ex debito justitiæ, then this court would be bound to give it, be the consequence what it may. But that I do not take to be the case. In Baker v. Smith, 4 Yeates, 185, the court quashed the execution, but refused to award restitution. In regard to executions levied on land, our situation is different from England. There, the land is not sold, and therefore the judgment retains its lien although restitution be made of the land. I mean in a case like the present, where the judgment on the scire facias is reversed, without touching the original judgment. But with us, the lien is destroyed by the sheriff's sale, which stands good, though the judgment be reversed. Suppose judgment on a scire facias on a mortgage should be reversed, for some defect in form, after the mortgaged property had been sold. Would it not be a bad administration of justice, if the mortgagee should be compelled to place the money in the hands of the mortgagor, in insolvent circumstances, and thus lose all security for his debt? And how, in principle, is that to be distinguished from the case before us? Courts of justice are studious to preserve to the parties, all the security in their power. And in this, they look to the defendant as well as the plaintiff. A writ of error is no supersedeas to an execution, whose operation has commenced before notice to the plaintiff. Yet, if the case require it, the money levied by the execution will be retained in court, till the event of the writ of error be known. 2 Saund. 101, (note b.) Willes, 271. There, the court ties the hands of the plaintiff, for the security of the defendant. Here, we ought not to shut our eyes on the consequences of giving this money to the defendant; which there is great reason to think he is indebted to the plaintiff. Neither is it a circumstance to be disregarded, that the defendant has suffered so considerable time to elapse, before he proecuted his writ of error. We observe too that the first sales of the defendant's land was set aside by the court below. The record does not state, on whose motion, but certainly the probability is, that the defendant moved it. We see too, that the matter for which we think ourselves obliged to reverse this judgment, was no more than a slip of the prothonotary, either in appointing the time of meeting of the arbitrators, or in making his docket entry.