The opinion pf the court was delivered by
Huston, J.To understand the first exception on looking into the declaration, it states, that John Jlndreios had contracted by articles of .agreement, to sell to WilliqmLee a tract of land, and specified the terms; that William Lee had sold the said land to N. B, Lee, the plaintiff, and authorised him to receive the deed, on payment of the purchase money: — that N. B. Lee had paid, &e. The other two errors are to the award,
A preliminary. question was made, whether a writ of error qould be sustained — or whether the agreement did not estop the parties and prevent the court from inquiring into the matter. In 5 Bin. 389, an agreement that an award shall be final and concluí sive, was decided to be open to exceptions, but it is algo stated, that if the agreement had been, that no exceptions should be filed to it, none could have been heard. I had occasion while in the Commot? Pleas to examine this matter in a case, (Benner v. Cambridg,) where I was satisfied injustice to a large amount had been done; and then found so many cases in our own reports, in which the court had assumed this matter to be settled, that I considered myself bound, and gave an opinion to that effect; and stated, that but for those cases I would have interfered, and I did this to bring the matter to the consideration of the Supreme Court. A writ of error was taken, and judgment affirmed; as I knew by seeing the record remitted to me to be carried into effect. I have not now had *101leisure to examine .the cases fully, but I find in 6 Bin. 99, areference of a matter of law to a particular counsel enforced and no inquiries into it on a writ of error — and in 4 Yeates, 551, a case stated for the opinion of .the Circuit Court whose opinion if was agreed should be conclusive, an appeal was not sustained, though the law expressly gives an appeal from the decision of the Circuit Court on a case stated. And thejfee were circumstances in the case favorable to the appeal; although it was respecting costs in the Quarter Sessions, which never could have come before that court, except in a case stated by consent. This case goes far to answer the objection tQ the form of this action; which, it is ptended should be in the name of William Lee for the use of N. B. Lee, and 1 would observe,! that before the reference, the party had in some measure waived this illegality, if it be one, by pleading to the merits, instead of demurring to the declaration. It is purely a technical objection.
There would seem to be something unequal and therefore unfair in admitting this exception at this time. If the report had been, for .the defendant, the plaintiff could not have made it: the defendant ought not then to be permitted to go before the arbitrators on the terms of this agreement, with a secret determination to let it remain conclusive on his opponent, but of no avail .against himself.
I admit that bribei’y or corruption would vacate an award made under any submission; so if the award was in terms which could not be enforced, &c. &c. but nothing of the kind appears here. It is not alleged even that it is. unjust, every objection is to some supposed technical irregularity.
I would not advise any counsel, however, to consent that his client should refer on such terms, unless he was satisfied that in law and justice he would lose the cause, and if parties will take their cause out of court and agree that it shall be decided in a way and on terms different from those prescribed by the law, I know of no reason why they should not be bound by such an agreement as much as any other. If they take .it out of court and compromise it, they are bound, unless there be some fraud or unfairness; although one of them may soon after discover that he would have gained his suit in cpurt.
Judgment affirmed.