Mussina v. Hertzog

An agreement by rule of Court to submit all matters in variance before whom the parties were to appeal. without counsel, to legal grounds, referee determine all matters justly, honestly and equitably’ the report of a majority of them conclusive does from filing exceptions to the report.

EXCEPTIONS by the plaintiff to a report of referees. There were cross actions on the case between these parties, who had been partners, and brought suit respectively in this form, for matters arising out of unsettled partnership transactions. The present action was by amicable agreement to July term 1812, whereby the parties submitted ail matters in anee between them in this action, to Peter Wiltberger, Thomas Mifflin, and William Bethell, who were “ to hear the par“ties and their allegations, and determine the controversies “ between them, and their award or the award of any two “ them to be final and conclusive; this reference to be under “ the act of 1705, and not subject to the provisions of the late “ arbitration laws. Report into office, and judgment.” On the 6th of July 1812, they entered into an additional agreement. “ According to our original agreement and un- “ derstanding, we agree that we will appear before the re- “ ferees by ourselves, without the personal assistance of at- “ torney or counsel. And we further agree to waive all objections arising upon legal grounds, and to let the referees “determine all'matters, claims and controversies whatever, “that we may have each against the other, justly, honestly “ and equitably, and their report, or the report of a majority “ of them, to be final and conclusive upon us.” The referees having awarded in the plaintiff’s favour, exceptions were filed; and a question preliminary to the merits, was the right of the defendant to file them. contended that by the agreement of the 6th of July 1812, the award was not subject to exceptions; it was the same as if the parties had agreed not to file exceptions. argued that the terms final and conclusive were not a bar, because every rule of court contained them; they meant final and conclusive, subject to the approbation of the Court; and the second agreement, was intended merely to waive objections to the form of action, which was case instead of account render, and in one of the suits, damages were claimed for a cause of action local in its nature, and which arose in Louisiana. Had the parties agreed not to file an exception, this Court would have disregarded the agreement. Kyd on Awards, 14, 20. Kill v. Hollister (a). If the jurisdiction of this Court is not ousted by an engagement to refer, as these authorities prove, neither can it be by an agreement not to except. Any man may waive a legal advantage. He may release errors, or he may stipulate not to assign them; and surely the Court will hold him to his agreement. Whether an agreement to refer, implies a negative, that he will not sue, has been the only question; but if he covenants not to sue, he is certainly estopped. The only point then is the true meaning of the last agreement; which if any thing can imply a negative, does imply that the report shall not be questioned.