The opinion of the court was delivered by

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 *233the 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.