
    [Philadelphia,
    March, 25, 1824.]
    NONES against GELBAUD and others.
    If the plaintiff takes out a rule for arbitration, before special bail is entered, it is a waiver of bail; but the defendant has ho .right to enter a rule before he has put in bail. If he does, and obtains an award in his favour, the court will set it aside, unless the plaintiff consents* tu the proceeding of the arbitrators.
    
      PHILLIPS, on behalf of the plaintiff,
    moved to strike off the award of arbitrators filed in this case, because one of the defendants, who had been arrested and held to bail, had entered a rule for arbitration, without having entered special bail. The defendant, he contended, was not in court, when he entered the rule. The writ was returnable to December Term, 1823: the rule for arbitration was entered on the 4th of February last, and the award filed in the present 'month. The plaintiff appeared before the arbitrators, and objected to their proceeding, but they went on, and awarded, no cause of action. If the plaintiff had gone into his case before them, he would have waived the bail.
    
      D. P. Brown, contra.
   Per Curiam.

If the plaintiff takes out a rule for arbitration before bail entered, he waives the bail:, But the defendant has no right to enter the rule until he has given hail, because if. he has, he may deprive the plaintiff of bail, and that was not the intention of th<j act of assembly. In this case the plaintiff did not consent to proceed before the arbitrators. Ifhehad, itwouldhave been a waiver of bail.. But he positively objected to their proceeding, notwithstanding which they did proceed, and made an award that there was no cause of action. Under the circumstances, it is the opinion of the court that the rule for arbitration was illegally entered and the award should be set aside.  