concurred.
Steoud, J. (after recapitulating the facts). — The objection to this award is, that it was not competent to the two arbitrators to proceed in the case in the absence of the third, and under the circumstances stated. The plaintiff’s counsel, in reply, relies upon two grounds. 1. That the entry of the appeal is a waiver of all objections to the award. 2. That the act of assembly empowers a majority of the arbitrators to proceed, as was done in this case, and that therefore their award is good.
With respect to the waiver, it is to be remarked, that in Dundas v. Bladen, 4 Rawle 463, which was brought originally in the supreme court, a similar state of facts existed, so far as concerns the entry of the appeal, and yet the award was set aside. It is true, in that case, this objection does not appear to have been taken; yet it was too obvious to have escaped the attention of the court, and I therefore consider myself at liberty, if not bound, to infer that it was deemed insufficient. Besides which, after the party had made a written protest, it would seem to me unwarrantable, in a matter of doubt, like the present, where no decision could be referred to as a guide, and where the consequences of a withdrawal from the hearing might have been so greatly and irreparably injurious, (for the party might not have been able to procure bail, or pay the costs, sometimes *131amounting to a very large amount, on the appeal) to infer acquiescence, in the face of an unequivocal written declaration to the contrary.
The main question is therefore to be examined : “does the act of assembly authorize a majority of the arbitrators, in the absence of one of their number, and against the will of one of the parties, to continue the hearing of a cause partially proceeded in before the whole number, and to render an award against the dissenting party'?”
The precise question here stated has never been decided. An intimation of an opinion upon it was cautiously thrown out in the decision of Douglass a. Kenton ; but the question itself was, at the same time, declared to be “open for discussion.” Having been counsel for the plaintiff in that cause, I did not sit upon the argument, and of course took no part in the decision. Nor had I, as counsel, been led to investigate this question, as the difficulty which induced the application to the court had not reached its crisis when my connection with the case ceased; and, furthermore, (and but for this consideration, I should not deem it proper for me on the present occasion to express an opinion) it is ascertained that this question cannot arise in Douglass v. Kenton.
Before I proceed to the examination of the act of assembly, it may be well to notice certain general principles of law applicable to the doctrine of authorities.
1. In the words of lord Coke, “ there is a diversity between authorities created by the party for private causes, and authorities created by law for the execution of justice.” And he thus illustrates this proposition : “if a man make a letter of attorney to two, to do any act, the survivor shall not do it; but if a venire facias be awarded to four coroners to empannel a jury, and one of them die, yet the others shall execute the same.” Co. Litt. 181, b. The latter clause of his proposition, as well as the illustration, shows that he had in view authorities of a ministerial character.
2. In regard to authorities of a public nature created by law, there is a difference when the duties required are ministerial, and when they are deliberative. We have seen that in respect to ministerial duties, where the authority is conferred on several, the survivors (and it might be added, survivor) may act with perfect legality. But it is further to be noted, in this kind of authority, that all who are alive must concur in the performance. But in authorities of a *132public nature, when the duties are deliberative) though all must convene and confer together, yet a majority may decide. Case of Baltimore Turnpike, 5 Binn. 485; Grindley v. Barker, 1 Bos. & Pul. 236 ; Ex parte Rogers, 7 Cowen 526. In general, the law which creates such authorities, expressly empowers a majority, or other definite proportion of the whole body, to act with the same effect as the whole. The number legally requisite to perform the duties appropriate to such authorities, whether it be the entire body, a majority, or other fixed proportion, constitutes the quorum; and, not to pursue this investigation unnecessarily into all its distinctions, it may be stated as the result of all the cases having any bearing on this particular inquiry, that in authorities of public concern, created by law, the appropriate duties of which are of a deliberative character, the quorum must be convened, and confer together, although a majority, in case of disagreement, may decide. See¿ besides the cases above referred to, Rex v. Grimes, 5 Burr. 2601 ; Rex v. Varlo, Cowp. 250; Rex v. Monday, Ibid. 537 ; The King v. Bellringer, 4 D. & E. 813.
The only matter to be ascertained then, is, what number constitutes a quorum of arbitrators, under the act of 1810.
By the 2d section, the number to compose an arbitration, must be three, five, or seven. The remainder of this section, and the three following sections, direct the mode by which the selection of the arbitrators is to be made. They are to be residents of the county where the action is pending, according to the 6th section. The 7th section provides for the fixing of a time and place for the meeting. In the 8th, particular directions are given as to the manner of notifying the arbitrators, &c., when and where they are to meet. The 9th and 18l.h sections authorize the appointment of suitable persons to supply the place of those who, having been originally chosen and duly notified, neglect to attend at the proper time and place. The number being thus complete, their duties and powers arc minutely detailed in the 10th section, which, from its important bearing, it will be fit to give with very little abridgement. “ The arbitrators thus appointed, and met, shall be sworn or affirmed,” &c. &c. ; and they being all thus sworn or affirmed, “ justly and equitably to try all matters in variance submitted to them, either of them shall have power to administer oaths or affirmations to such persons called before them, as they, or a majority of them, shall believe to be proper, disinterested and competent witnesses, as well as to judge of the credibility of their testimony, and the propriety of admitting in evi*133dence any written document that may be produced ; and to call on either party to produce any books, papers or documents, that they shall deem material to the cause; and likewise to decide the law and the feet that may be involved in tire cause to them submitted. And, moreover, the said arbitrators, or a majority of them that are present, shall have full power to adjourn their meetings from day to day, or for a longer time, and also from place to place, if they think proper; and if both parties appear, either by themselves, their attorneys or agents, before the arbitrators, on the first, or any subsequent day of meeting, &c., the arbitrators shall proceed to ¡¡"wstigaffc, examine and decide the cause, &c., to them submitted, and report their determination, and make out an award, signed by all, or a majority of them, and transmit the same to the prothonoiary within seven days after they have agreed upon their report,” &c.
The purport of this section to my mind, is exceedingly plain. In order to supply vacancies, by the 9th and 18th sections, as already noticed, such arbitrators as should attend, in compliance with the notice served upon them, were empowered, without oath or affirmation, to elect, in certain contingencies, their colleagues; and the whole number, being thus appointed and met, are all to be sworn or affirmed to try the matter submitted to them. Questions arising in. the course of the trial, such as the competency of witnesses, calls for the productions of papers, and in short the whole law and fact involved in the cause, may be decided by a majority of them ; and to make the power of the arbitrators, if possible, more free from doubt, and as showing conclusively that nothing less than the complete number were deemed competent to perform the duties required of the tribunal, the substance of what had been before mentioned, is repeated thus ; “and if both parties do appear before the arbitrators, &c., the arbitrators shall proceed to investigate, examine and decide the cause to them submitted, and report their determination, and make out an award signed by all or a majority of them.” Precisely this, and nothing less or more would have been the implied powers of such a tribunal, had the act been silent on the subject. The whole number most have met and heard the evidence, &c,, i. e. have proceeded to investigate the cause; and the decision — the award might, then have been made by a majority. It was supposed by the plaintiff’s counsel, that the language, “ and, moreover, the said arbitrators, or a majority of them that are present, shall have full power to adjourn their meetings from day to day, &e.,” evidences that by majority in *134other parís of the section, is meant, a majority of those present: because, if I understood the argument, it is not made the duly of those assembled, though less than the entire number, to adjourn ; but it is left to their discretion by the words “if they think proper.” These words however, according to my view of them, are restricted to a power of changing the place of meeting. On the construction claimed, should three only be present, or indeed but one, although the whole number appointed were seven, it would be competent for two, in the first place, and one in the other, to proceed in the investigation, and make a binding award. It is plain, however, that this language furnishes no ground for such a conclusion. This clause is, indeed, thrown in parenthetically : most-probably it formed no part of the section as first reported, but was deemed necessary to meet the contingency of a part of the arbitrators only attending at a meeting subsequent to that at which they had been organized ; and, regarded in this light, it strengthens the argument which requires the presence of the whole number, in order to proceed in the hearing of the parties.
But this investigation may be advantageously prosecuted a little further. Enactments subsequent to the act of 1810, and in title or subject supplementary to it, corroborate the views which I have ex-presed. The act of the 28th of March 1820 (Purd. Dig.) provides a mode of supplying vacancies in the original number of the arbitrators occasioned by death ; a work quite unnecessary, at least until the survivors, where these amount to a majority of the whole number primarily appointed, have, by experiment, ascertained that they could not agree. And the “act relating to proceedings in the action of account render,” passed March 30,1821, (Purd. Dig. tit. Ab.) which extends the arbitration act of 1810 and its supplements to the action of account render, expressly declares, “that the arbitrators appointed by virtue thereof, (i. e. of those acts) shall hear, and a majority of them determine on the whole merits of the cause, and report,” &c. These acts being in pari matería, are to be construed together; and can it be contended, that on points perfectly analogous, the legislative intent is so widely different 1
In the state of New York, a statute, which appears so far as concerns the particular point under investigation to bear a very close analogy to our arbitration act, has received a construction whicli fully supports the view which I have taken. The decision may be found in M'Inroy v. Benedict, 11 Johns. Rep. 402.
*135On the whole, fly opinion is, that by abandoning the state, the place of the arbitrator became vacant to all intents and purposes. For, as before remarked, the 6th section of the act requires the arbitrators to be residents of the county where the action is pending. I am also of opinion, that by such abandonment of the arbitrator, the tribunal, of which he was a constituent member, became dissolved, and consequently, the award made by the two remaining arbitrators was a nullity, and must be set aside. I infer the dissolution of the arbitration from the analogy of this tribunal to municipal corporations, in regard to which the doctrine is well established, that when an integral part of the corporation is gone, without whose existence the functions of the corporation cannot be exercised, and when (he corporation has no means of supplying that integral part, and has become incapable of acting, the corporation becomes then virtually dead or extinguished. 2 Kents Comm. 248 ; Angel & Ames 505.
It remains to be examined whether it is competent to this court to set aside the award.
On general principles, I regard this point free from doubt, and happily, we have the express decision of the supreme court, not only that we have the power, but that it is our duty to interpose, provided the circumstances of the case require revision. In Thompson v. White, 4 Serg. & Rawle 140, Chief Justice Tilghman uses this language : “ the appeal seems to have been the only remedy immediately contemplated by the legislature. Nevertheless, as the award was to have the effect of a judgment, it has been decided that a writ of error would lie on it, in consequence of which it might be revised for errors appearing on the face of the proceedingsAnd in Sheetz v. Rudebaugh, 2 Rawle 149, Huston, J., delivering the unanimous opinion of the court, says : “ many cases have occurred in this court, which have induced the court to reconsider the decisions as to the practice under this law [arbitration act of 1810] ; and on mature and frequent reflection, we have come to the conclusion, that in the cases in which writs of error have been taken to reconsider, and if wrong reverse, reports of arbitrators under the compulsory arbitration act, the court in which the cause veas pending, and to which the report was made, is the proper tribunal to obtain [grant] redress.* When appeal is the proper remedy, the party must appeal; but in those cases where writ of error has been resorted to, the application is hereafter to be made to the court of common pleas A
In the case before us, the error does appear on the face of the pro*136ceedings, and therefore a writ of error would lil^upon the record, according to Thompson v. White; and wherever a writ of error .might be resorted to, it is declared in Sheetz v. Rudebaugh, that “ the court in which the cause was pending, and to which the report was made, is the proper tribunal to grant redress.” Even if I disappoved of this doctrine, I should nevertheless deem it an unquestionable duty to conform to it. But in my judgment, the doctrine is sound. It concerns the community that suits should be brought to a termination with as little delay as possible. It is the right of the injured party, in each particular case, to demand that this should be done. The language of the constitution is emphatic on this head. The act of assembly constituting this court, enjoins the making of “ such regulations of practice as may most facilitate the progress of justice,” a direction, it is true, not in strictness adapted to the present inquiry, but in its spirit fully comprehending it. I feel myself therefore constrained to say, that the rule to set the award aside should be made absolute.
Rule discharged, (a)
See ac t of the 16th of June 1836, sect. 22.