
    [Philadelphia,
    January 26,1836.]
    BROWNING against McMANUS.
    JN ERROR.
    1. iVhere it appears, by the record of the court below, that a case was referred, under the act of 1705, to' three persons, and that on a subsequent day, one of them having declined to serve, another person was appointed iii his place, it will be presumed in the absence of contradiction by the record, that the substitution was made with the consent of both parties.
    2. Exceptions po an award, under the act of 1705, arising from alleged want of notice to the party making the exception, and the like, miist be made in the court in which the action was brought, and will not be considered in this court.
    Error to the District Court for the City and County of Philadelphia, to remove the record of an actipn, therein Catharine McManus was plaintiff, and William B.rowning was defendant.
    It appeared, by the record returned in this case, that on the 2d of January, 1.835, the case was referred, under the act of 1705, to Messrs. Coleman Fisher, Mordecai D. Lewis, and William S. Torr.
    The next entry on the record is as follows:
    “ March 6th. Coleman Fisher having declined to serve, Henry Manly was appointed referee ; in whose place, he being unable to attend on account of indisposition, John Elliott was appointed.”
    On the 9th of March, 1835, the report of the referees was filed, in the words following :
    “ Two previous meetings having been held in this case, and adjourned through the absence of one of the referees, on neither of which was the defendant presen) in person, or by counsel; the referees, at a meeting held March 6th, 1835, the plaintiff being present, with counsel and witnesses, after hearing the remarks of counsel, and receiying the testimony of the witnesses, find an award in favour of the plaintiff, in the sum of $684.
    (Signed) Mordeuai D. Ihswis,
    Wm. S. Torr, .
    John Elliot.”
    The following errors were assigned in this court:
    1. The court erred in substituting referees for those originally ¡appointed, without the knowledge or consent of the defendant below.
    •2. The court erred in rendering judgment on the report of referees ; because the same is erroneous:
    
      1. In that it does not appear that the referees were ever qualified. *
    2. In that the proceedings, being ex parte, no notice to the defendant of any of the meetings of referees, appears to have been given.
    3. In that the report is by referees, of whom two only appear to have been regularly appointed.”
    Mr, Haly, for the plaintiff in error, contended:
    1. That the court b.elow had no power to substitute a referee for one who had declined to serve; without the concurrence of both parties, Shippen’s Lessee v. Bush, (1 Dali. 251); and that the consent ought to appear upon the record. Russell v. Gray, (6 Serg. R. 145.)
    2. That the award was defective; because it did not appear that the referees had been sworn or affirmed. [KEttNEDV, J. — This is not required by the act of 1705 ; and it is not usual in practice.] ■
    3. That the award was bad; because the proceedings were ex parte, and no notice appears to have been given to the defendant or his attorney. The substitution having been made on the same day, that the meeting of the referees took place, notice ought not to be presumed.
    Mr. Zantzinger and Mr. D. P. Brown, for the defendant in error,
    jargued that the proceedings were regular, and that, at all events, the remedy of the party was by application to the court below, They cited Kyd on Awards, 34, (d) (Am. Ed.) Oppenheimer v, Comly, (3 Serg. Sp R. 3.) JVagley v. Stewart, (10 Serg. Sp R. 207.)
   Per Curiam.

The exceptions are such as might be proper in the .court below, op a motion to set aside the award; which is put, by the act of 1705, on the footing of a verdict; but they are not in place here. We are incompetent, for instance, to enquire whether the arbitrators were sworn, or the opposite party had notice; but these, being .extrinsic to the- record, were open to examination in the court below, by affidavit. The exception to the substitution has colour of foundation, but no more. The substituted arbitrator appears to have been appointed precisely as the others were. The minutes are unusually short and unsatisfactory; but in a court of general jurisdiction, every thing is to be presumed in favour of the regularity of,a proceeding. In the absence of contradiction by the record, then we are to presume that the defendant was present in person, or by counsel, and consented to the substitution.

Judgment affirmed.  