¶1The statute empowers the Court to appoint one or more judicious and disinterested men as auditors. After the Court have elected the number, and the rule has been made out and delivered to the party, the statute makes no provision for a part of them in any case to proceed to the audit.
¶2But it is suggested, that the presence of one was dispensed with by the parties, who agreed to proceed before the remaining two. It is true, the maxim that consent will take away error ought to be carried to a liberal extent; but then this consent should be made properly to appear to the Court. The Court cannot know it from the mere suggestion of the party. It should in some mode be spread on the record, either by being entered on the rule over the signatures of the parties, or noticed by the sitting auditors in their report, and not proved by parol testimony. Report accepted.