delivered the opinion of the court,
It was expressly agreed by the parties that the arbitration should be “ final and without exception or appeal.” The agreement was in writing, and comes up with the record. A party is precluded by an express agreement not to appeal and file exceptions. This is settled law. See McCahan v. Reamey, 9 Casey 535, where the authorities are collected by Mr. Justice Strong.
It was alleged, however, that the case did not come within the rule above stated, because: 1. The award was procured by fraud; 2. That the arbitrators were guilty of improper conduct; 3. That the defendant did not assent to the agreement to waive exceptions •and appeal, and therefore it bound neither party; 4. After-discovered testimony; and 5. That the arbitrators charged excessive fees.
The alleged fraud, as charged, consisted in this: that the defendant procured the award by giving false testimony in his own behalf, at the arbitration ; there was no sufficient proof of misconduct on the part of the arbitrators; the allegation that the agreement for the finality of the submission was not assented to by the defendant is contradicted by 'the record; the after-discovered testimony amounts to nothing, and could not be taken advantage of in this manner if it did, while the alleged over-charge by the arbitrators furnishes no ground for setting aside their award. The proper place to raise this question is upon a taxation of the costs.
There is nothing to take the case out of the rule of law above referred to.
Judgment affirmed.