Bower against Blessing.
to be bound by certain terms, if the verdict should be in his favour, but not accepted by the other party, is not obligatory on the party who filed it.
It is discretionary with the Court before whom the cause is tried, to open the judgment entered upon such a verdict, ami this Court cannot interfere with their decision.
Queryy whether such a paper can be noticed as part of the record, by a Court of Error0
In Error.
ON the trial of this ejectment in the Common Pleas Dauphin county, on the 30th January, 1819, the defendant filed a paper expressed thus:
*244“ On a verdict being rendered for the defendant in this cause, he agrees that referees be appointed by the Court to ascertain the real debt due from him to George Bower, and that the same shall be paid immediately upon the report being returned and approved by the Court, and in case of nonpayment, then that the verdict be set aside, and judgment be rendered in favour of the plaintiff in this cause.”
The verdict was for the defendant, and on motion of the counsel for the plaintiff, a rule was granted to shew cause why it should- not be. set aside, which, after argument, was discharged by the Court, who entered judgment on the verdict.
On the 13th March, 1820, the counsel for- the plaintiff moved to set aside the judgment and execution, and to have arbitrators chosen conformably to the agreement filed in the cause, which the. Court, after argument, refused, being of opinion that the judgment entered on the verdict, could not be set aside after the period which had intervened between its entry and the time when the motion was made.
This opinion, being filed at the request of the plaintiff’s counsel, was removed with the record on a writ of error.
Fisher, for the plaintiff in error,
insisted, that# the Court below had no power to enter judgment on the verdict, until the defendant had complied with the terms stipulated-by his agreement, in pursuance of which, it was their duty to have appointed referees. The Court permitted this paper to be filed; it formed part of the record, and was combined with the verdict. It was upon the faith of this agreement that the verdict was given. In such a case, chancery would interpose by injunction, to prevent an execution upon a judgment at law. 3 Dessausure’s Cha. Rep. 323, 4, 5. 1 Madd. Cha. 103. 109. 110, 111. This Court, possessing equitable powers, and frequently, where a case of equity arises on the record, exercising chancery jurisdiction* are now called upon todo so, to prevent a failure of justice. Moody v. Vandyke, 4 Binn. 31. Miller v. Milford, 2 Serg. & Rawle, 35. Hart v. Porter’s executors, 5 Serg. & Rawle, 203, Lessee of Ma*245thers v. Akeuright, 2 Binn. 93. Ebert v. Wood, 1 Binn. 216. The plaintiff had a right to move for a new trial, and when the Court refused to grant it, they should have appointed auditors. The defendant had received the benefit of the agreement, by obtaining a verdict, and equal justice should have been measured out to the parties.
Elder and Hopkins, for the defendant in error.
This cause, like every other which comes before a Court of error, mast be determined from the record alone, of which the paper in question forms no part. It was never assented to by the plaintiff; it was not read to the jury, nor was it noticed in the charge of the Court. Although the note on which suit is brought be filed, it is no more a part of the record, than depositions filed in the cause. Woodbury v. White, 7 Mass, Rep. 448. But viewing this paper as part of the record, it has been rejected by the plaintiff, and therefore is not obligatory on the defendant. Instead of accepting the terms offered, when the verdict was given, he immediately moved for a new trial, and it was not until he was disappointed in the result of that motion, and after the lapse of two Terms, that he thought of resorting to the alleged agreement. This was a case in which the plaintiff elected one of two courses that were offered to him, at the same time rejecting the other; as in the case of Bassler v. Niesly, 2 Serg. & Rawle, 355, where the plaintiff filed a paper binding himself to pay whatever auditors might determine, and it was held, that the defendant might accept the offer or reject it, and sue for his money in another action. So the grantee of a rent charge, may at his election bring a writ of annuity or distrain. If he recover in annuity, the land is discharged ; and if he recover by distress, the person is discharged from the annuity. Co. Litt. sec. 219. 144, 5. If an offer is not accepted, it is not to be regarded. Turton v. Benson, 1 P. Wms. 496. Tuttle v. Love, 7 Johns. 470.
The opinion of the Court was delivered by
Tilghman C. J.
This was an action of ejectment brought by George Bower, against Anthony Blessing, in which there was a judgment for the defendant. Every thing on the record, so far as concerns the pleadings, verdict and judgment, *246is regular and free from error. But the plaintiff alleges error in a collateral matter, which he supposes to be part of the record. During the trial, the defendant filed a writing, by which he declared, “ that in case the verdict should be in his favour, he agreed that referrees should be appointed by the Court, to ascertain the real debt due from him to the plaintiff; and that the same should be paid immediately upon the report being returned, and approved by the Court; and In case of non payment, the verdict should be set aside, and judgment entered for the plaintiff.” It is not pretended, that the plaintiff was a parly to this writing, or that it was read to the jury, or that the jury in any manner referred to it, or incorporated it in their verdict. On the contrary, there is no doubt, that the plaintiff considered it as injurious to him, and intended by the defendant to influence the jury, (who would be sure to hear of it,) to find against the plaintiff, contrary to law. The plaintiff’s subsequent conduct shewed, that he disavowed this writing ; for on the verdict being entered for the defendant, on the 31st January, 1819, instead of requesting the Court to appoint auditors, he moved for a new trial, on which an argument was had, and on the 5th October, 1819, the Court rejected the motion, and entered judgment on the verdict. On the 13th March, 1820, the plaintiff moved the Court to set aside the judgment, and an execution which had issued on it, and appoint auditors to ascertain the debt due to him from the defendant. On the 29th January, 1821, the Court delivered their opinion against the motion, giving as their reason, that after so long a time, they ought not to open the judgment.
Without giving a positive opinion, I very much doubt, whether a Court of Error can take notice of the writing filed by the defendant. It was no agreement, but an ex parte paper, filed without the consent of the plaintiff, and intended to injure him. Considering our blended jurisdiction of law and equity, wé have been in the practice of'receiving verdicts, imposing terms on the parties. When these verdicts are recorded, and judgments entered on them, they are strictly part of the record. But, the writing now under examination, seems rather to be an act, by which the party submitted himself to the power of the Court, before whom his eause was tried, in a manner out of the usual course of proceeding, *247and not cognisable by a Court of Error. I would not be understood, however, as deciding this point, because a decision is unnecessary. In another point of view, the cause is against the plaintiff, even supposing the writing alluded to, to be part of the record. The plaintiff certainly had his choice, to become a party to the defendant’s offer, or reject it. It could not be forced upon him. The Court had no right to compel'him to have his debt ascertained by auditors. He had a right to insist on bringing another action, and submitting his case to a jury. Now, I think it appears, that he has made his choice, to have nothing to do with the defendant’s offer. For, instead of moving for auditors at the proper season, when the verdict was entered, he took quite a different course, and applied for a new trial. After this, he could never insist on accepting the defendant’s offer; although, undoubtedly the Court might, in their discretion, have made such order in the matter, as they thought proper. They have exercised their discretion, by refusing to set aside the judgment; but on that point, we have no power to control them. I am of opinion, that there is no error in the record, and therefore the judgment should be affirmed.
Judgment affirmed.