
    Berentz and others against Bishop.
    
      Friday, May 28.
    Where a rule of arbitration is entere by the plaintiff in a suit against two defendants, he cannot proceed against one defendant only and obtain judgment against him where he has not given notice to the other defendant of the rule for appointing arbitrators.
    In Error.
    ERROR to the Court of Common Pleas of Dauphin COUHty,
    
      John Bishop, the plaintiff below,
    issued a capias on bond, against Henry Berentz, Michael Dochterman, and John Garher, in the Court of Common Pleas of * county, to September Term, 1816, which was returned non est inventus, as to Dochterman and Garber, and served, as to Berentz, and judgment was entered tit December Term following, against Bernetz. An alias capias returnable to the same December Term, issued against Dochterman and Gar-
      
      her, which was returned non est inventus, and a pluries cafias, to February Term, 1817, which was returned served, as to Gárber, and non est inventus, as to Dochterman. Prior t0 return day of February Term, the plaintiff entered a rule, expressing his determination to arbitrate the suit again’st Dochterman and Garber; and arbitrators were afterwards chosen by the prothonotary for both : but Garber only was served .with notice of the rule. On the 21st February, 1817, the arbitrators made an award against Garber only, on which judgment was entered in March following. The plaintiff, soon after March Term, 1817, took out a fieri facias returnable to February Term, 1817, which was returned nulla bona, and a testatum feri facias to Lancaster county, returnable to May Term, 1817, on which the property of Garber, was taken in execution, and a large portion of the debt paid by him.
    Elder, for the plaintiffs in error,
    took several exceptions to the proceedings below ; but the Court gave their opinion, only as to one, viz. that the plaintiff having entered a rule of arbitration against both defendants, could not proceed in the arbitration against one only, and notice not having been served on both, the proceeding in the arbitration, was erroneous.
    Ellmaker, for the defendant in error.
   The Court,

on this ground, reversed the judgment and execution, against Garber, and awarded restitution.

Judgment reversed, and restitution awarded.  