COMMON PLEAS, Philadelphia
County:
TETTER verʃus RAPESNYDER.
T
HE parties, having confented to a reference, filed a written agreement appointing three perfons, without faying or any two of them, to report; but the Clerk, in making out the rule, had fo expreffed it. The three referees met, though only two of them figned the report ; and now Lawrence moved to fet it afide, on account of this variance between the rule and the agreement of the parties, offering to examine a witnefs,who was prefent at the tranfaction, to fhew that it was intended all the referees fhould concur. See Fitzg. 215.To this, Ingerʃoll, for the Plaintiff, objected ; and faid, that where parties have reduced their agreement to writing, particularly in the cafe of a record, nothing by way of addition or alteration was admiffible. To prove a name meant, or a fraud committed, and fome other fimilar circumftances, were, he infifted, the only exceptions to this principle.
But, by the court:–The queftion is not, whether parol teftimony fhall be given againft a record ; but whether the agreement filed in the Court, was a fufficient authority to the Clerk to make out the rule to any two of the referres. If this was his miftake, it certainly ought not to bear againft the Defendant.
The witnefs being examined, and having proved the Defendant's allegation, the oppofite counfel contended, that as the rule had been before the Referees, and was infpected not only by them, but by the parties, it was too late to make the objection; for, it would be unjuft to allow this advantage to the Defendant , after the whole bufinefs had been difcuffed, and the report agreed upon.
1788.
Lawrence propofed reading fome cafes to fhew, that the authority given to the Referees by the act of the parties, ought to have been ftrictly purfued.
But, by the court:–There would have been fomething equitable in the objection to the report, if only two of the Referees had met; but, as it appears that they all entered on the bufinefs, though only two of them have fubfcribed the report, we can confider nothing but the evident miftake of the Clerk ; and, for that reafon alone,