
    [Pittsburg,
    September 19, 1825.]
    BOSLER and another against POE.
    IN ERROR.
    Though a rule of arbitration be entered on the return day of the writ, and is there» fore irregular under the arbitration act, yet the appearance of the defendant before the arbitrators and going into a defence cures the irregularity and makes an award against him good.
    The' error assigned in this case by the plaintiffs in error, Henry C. Bosler, and Anthony Beelen, who were defendants below, was that George Poe, the plaintiff below, and defendant in error, had taken out a rule of arbitration on the return day of the writ, contrary to the provisions of the act of the 28th March, 1820, which' enacts that no rule of arbitration shall be entered by the plaintiff till after the first day of the term after suit brought.
    The facts of the case were, that a capias was issued in ease, marked no bail required, to April term 1823, in the Court of Common Pleas of Allegheny county, by Poe, against Bosler and Beelen. On the 21st of April, 1823, which was the first day of the term after suit commenced, the plaintiff filed a statement and entered a rule for the appointment of arbitrators, on the 6th of May. On that day the plaintiff appeared, but not the defendant, and arbitrators were chosen, to meet on the 27th, at which time they meet and reported, that “being duly sworn, and after hearing the proofs and allegations of the parties,” they found in favour of the plaintiff the sum of five hundred and forty-three dollars and sixty-one cents. Judgment was entered thereon.
    
      Ross and MlDonald, for the plaintiffs in error,
    contended, that the rule was irregular arid the judgment-void. The arbitration law must be strictly pursued, otherwise the arbitrators have no jurisdiction, and the want of jurisdiction is not cured by the defendant’s appearance before the arbitrators, especially if it does not appear, as in this case that the defendants knew the arbitration was illegally entered, nor that they did not object to the proceed ings. In general, want of jurisdiction is not cured by appearance. An act of assembly declares that where certain proceedings are directed by act of assembly, they must be strictly pursued. If the proceedings were not according to the act of assembly they can at the furthest only be treated as a voluntary arbitration, not a a compulsory one under the law. 1 Binn. 219. 2 Binn. 40.
    
      Baldwin and Biddle, contra.
    If the whole proceedings are void, then no final judgment has been given and no writ of error lies. But the provision in the act of the 28th of March, 1820, was for the benefit of the defendant, who was still left at liberty to enter a rule of arbitration at any time after the suit commenced. Therefore he may waive his privilege where the plaintiff enters the rule too soon. At all events if the party appears and pleads his cause, he cures defects in the entry of the rule. Man}7 matters which might have been pleaded in abatement are abandoned by appearance,* and plea to the merits. A freeholder cannot legally be arrested, but if he is arrested, and submits, and pleads to the merits, the judgment is good. If both parties appear before the justice prior to the time when the process is returnable, the judgment is good. 5 Binn. 30. 4 Dall. 107. 2 Serg. & Rawle, 459.
   The opinion of the court was delivered by

Gibson, J.

The objection is, that the plaintiff below entered his rule of arbitration on the return day of the writ, and in answer to a suggestion, that the defendants had waived the irregularity, by appearing before the arbitrators, and making defence, the argument is, that consent cannot give jurisdiction to a tribunal which has been constituted contrary to the express provisions of a statute. But nothing, in this provision of the act, prevents a plaintiff from entering a rule of arbitration before the first day of the term, with the assent of the defendant. Beside the confusion which arose from proceeding to a decision of the cause before the parties were in court, the mischief was, it frequently happened, that a reasonable time was" not afforded, to prepare for defence; and this particular provision was intended to be for the benefit of defendants. This is put beyond doubt, by the express saving of the rights of defendants, if they think proper, to enter rules of arbitration as if the supplementary act had not been passed. The legislature did not intend to restrain the jurisdiction of arbitrators, but particular parties, under certain circumstances, from having recourse to it; and a violation of this restraint may, therefore, let in an objection to the award, on the ground of irregularity, but not of want of jurisdiction. . Like exemption from arrest, or of being held to answer, even on being summoned, unless the writ were served ten days before the return day, (on which a freeholder may insist,) this privilege, under the arbitration acts, is one which the party for whose benefit it was intended, may waive. Have the defendants waived it, in the case under consideration? By appearing before the arbitrators, and making defence, they have declared their assent to the proceeding as explicitly as if they had entered it on the record; and having had the benefit of their defence, as far as it was available, it would be unjust to permit them now to say. that the proceeding was a nullity. By becoming actors under the plaintiff’s rule, they made it their own; and by the express words of the supplementary act, a rule'of arbitration may be entered by. the defendant, before the first day of the term to which the writ is returnable. The assignment of error, therefore, 'is not sustained.

Judgment affirmed.  