Tetter v. Rapesnyder

JUNE TERM, 1788. Tetter v. Rapesnyder. Rule of reference. An agreement was made to refer a case to three persons, to report, &c., without saying “ or any two of thembut the clerk in making out the rule, so expressed it: a report by two only of the referees was set aside. The parties, having consented to a reference, filed a written agreement appointing three persons, without saying, “ or any two of them,” to report; but the clerk, in making out the rule, had so expressed it. The three referees met, though only two of them signed the report; and now Lawrence moved to set it aside, on account of this variance between the rule and the agreement of the parties, offering to examine a witness, who was present at the transaction, to show that it was intended all the referees should concur. See Fitzg. 215. To this, Ingersoll, for the plaintiff, objected ; and said, that where parties have reduced their agreement to writing, particularly in the case of a record, nothing by way of addition or alteration was admissible. To prove a name meant, or a fraud committed, and some other similar circumstances, were, he insisted, the only exceptions to this principle. But— By the Court. — The question is not, whether parol testimony shall be given against a record; but whether the agreement filed in the court, was a sufficient authority to the clerk to make out the rule to any two of the referees. If this was his mistake, it certainly ought not to bear against the defendant. The witness being examined, and having proved the defendant’s allegation, the opposite counsel contended, that as the rule had been before the eferees and was inspected, not only by them, but by the parties, it' was tro te to make the objection : for, it would be unjust to allow this advantage the defendant, after the whole business had been discussed, and the report reed upon. *Lawrence proposed reading some eases to show, that the authority given to the referees, by the act of the parties, ought to have been strictly pursued. But— [MAJORITY — By the Court.] By the Court. There would have been something 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 business, though only two of them have subscribed the report, we can consider nothing but the evident mistake of the clerk ; and, for that reason alone— Let the report be set aside, See Russel v. Gray, 6 S. & R. 145; Kingston v. Kincaid, 1 W. C. C. 148; Lattimore v. Martin, Addis. 11; Howard v. Pollock, 1 Yeates 509.