Mussina v. Hertzog

5 Binn. 387, 1813 Pa. LEXIS 2

• Court: Supreme Court of Pennsylvania
• Decided: January 9, 1813
• Status: Published

Opinion

Tilghman C. J.

It is unnecessary to decide whether a party shall be permitted to except, after a plain and clear agreement not to file exceptions. That is not the present case. The first agreement is in the usual form, and neither party is barred by the terms jinal and conclusive. They are common to every rule of reference, and leave the report subject to the Court’s opinion, upon exceptions duly filed. The second agreement, was no doubt made to obviate objections to the form of action, and the nature of the demand. These are the legal objections referred to; objections that might be taken before the referees. It goes no further than the former as to the conclusiveness of the award. I am of opinion that the defendant was intitled to file exceptions.'

Yeates J. was of the same opinion.

Brackenridge J.

If the defendant had agreed not to file exceptions, he would have been bound. The case is the same as if A promise to pay for a horse what B says he is worth. Interest reipubhcce ut sit jinis litium. But it is a question of intention. Did the plaintiff so agree? I see nothing like it. There is enough for the agreement to operate upon, without precluding the defendant from filing exceptions.

The Court then proceeded to an examination of the merits, and ‘ , ;

Set aside the award.