The plif. filed an affidavit that the deft, was out of the state, and has been for a long time, and that he could not ascertain where he resided. The suit was docketed by the counsel of Blaekstock and referred by consent. This reference was afterwards, on motion and by consent, stricken out, and the case again referred to the present arbitrators. In all these proceedings the deft., Blaekstock, had acted by his counsel, without personal appearance, and he ought not now to be permitted to make this objection to the award.
Under the circumstances the court discharged the rule, stating at the same time, that as a general rule of practice, notice to counsel would not be considered sufficient. See Sirman vs. Bernard’s admx. post. Rule discharged.