The court unquestionably transcended its power in referring the matter back; for the provision of the statute which authorizes such a reference in certain cases, has regard to reports under the Act of 1836, and not to a report, such as this expressly was, under the Act of 1705. But though the error would otherwise have been fatal, it was helped by the plaintiff’s appearance and litigation of the merits a second time before the arbitrators. Having done that, he can no more allege the want of a submission than a defendant who had voluntarily appeared to an action, could allege the want of an original writ; he could not take his chance before the arbitrators, and afterwards dispute their jurisdiction. The maxim that a subsequent confirmation is equivalent to a precedent authority, is applicable to every such case. The plaintiff, therefore, is too late with his exception here.

Judgment affirmed.