¶1The opinion of the Court was delivered by
¶2Could the award in this case be supported under the Act of 1806, or the Act of 1836, it would be the duty of the court to confirm it, and they would give the Act an enlarged interpretation to effect the object. But it cannot be brought within the purview of the Act of 1806, because that act requires that the parties shall agree that their submission be made a rule of court ; which is not done here, but, on the contrary, the parties bind themselves under a penalty to abide by the award, which rather leads to a contrary inference. The authority to make the reference a rule of court should appear either expressly or by plain implication.
¶3Then, although the submission might be good according to the usual practice, under the old Act of 1705, (which the Act of 1836 has re-enacted) yet the award is bad, being made by only two of the arbitrators, when the reference was to three. It, therefore, falls within the principle decided in Welty v. Zentmyer, (4 Watts 75.)
¶4Judgment on the award reversed, and case remitted for further proceedings.