President. It is not alledged, that the absent referee had not notice, nor that there was any fraud or misbehaviour in the parties or referees ; neither is this a motion for an attachment for non-performance, but to set aside an award, in which all is fair on both sides ; nor have the arbitrators exceeded their power, or not purified the submission ; for the submission and their power is from the act of the parties, not of the court. The material point in all these cases seems to be the consent of the parties. The rule of court seems to be rather matter of form, to secure a fair and effectual execution of the agreement of the parties. The consent to substi*12tute the referee, in room of the one absent is in writing, annexed to the copy of the rule, in the presence of the referees, who were both judges and jury ; is recited in the report, and will appear on the record. There is a majority without the absent referee, and (he having notice) that is enough. The award would be good if the new name were not there. Shall its being there by the consent of the parties make it bad. This consent ought to be construed as inserted in the rule ; for, in equity, that is considered as done, which ought to have been done. What would have been the defendant’s answer, if this question had been made at the time ? The defendant ought not to be permitted to mislead the plaintiff, by a reference, and now take advantage of his own deceit; and, having had one chance, at pleasure lay it aside, when he finds it against him, to recur to another.
Church v. Roper, 1 Rep. Cba. 140. Owen v Hurd 2 T. Rep. 643.-See 3 T. Rep. 592. Note.-In an arbitration, the award was, that a lease should be surrendered, and, (with consent of the parties) that certain other persons should settle the value of the improvements ; the plaintiff, having surrendered the lease, brought his bill for the value of the improvements, ascertained by the other persons. And, though it was objected, that this was extra-judicial, the court of chancery decreed performance; considering this as part of the principal award, which the other party had executed. The court of King’s Bench refused an attachment for non-performance an award made by an arbitrator substituted by the real parties (though not the parties on the record) instead of the arbitrator named in the rule. But in the case of lessee of Lattimore v. Martin, no application for an attachment or judgment on the report was made ; for Mr. Woods having made some objection on the merits, and a mistake of the referees ; it was agreed to refer it back to the same persons, who had made the report.