
    Dawson against Condy.
    
      Monday, October 22.
    In Error.
    The right of appeal from an award of arbitrators, where given sembiy°oam.S" not be taken by an agreement in writing, made part of the proceedings in the Court, or before a justice, where the suit is before him.
    ERROR to the Court of Common Pleas of Cumberland county,
    This was an amicable action to recover damages for nonperformance of a contract, not exeeding 100 dollars, brought by Redmond Condy against Michael Dawson, and entered by ' ' 
      agreement of the parties before a justice of the peace of Cumberland county. All matters in variance between the parties, were agreed by them, before the justice, to be referred to three referees, who oh the 21st August, • 1820, awarded in favour of the plaintiff; for forty dollars and costs. On the 24th August, 1820, the defendant, Dawson,- appealed to the Court of Common Pleas, and entered security. In September, 1821, the Court on motion of the plaintiff, granted a rule to shew cause why the appeal should not be struck off, on the ground that the parties had agreed that the award of the referees should be final, and that no appeal should be made from their award. There was no such agreement in writing of record before the magistrate, or in the Court, below, or now produced, but the plaintiff alleged, that it was a verbal agreement between the parties, made at the time of their agreeing to enter the action before the magistrate, and also, while the case was pending before the referees. On these points the depositions of the magistrate and referees were taken, by virtue of a rule to take depositions, granted by the Court below, and were now returned with the record, The Court of Common Pleas decided, that such agreement had been verbally made at the time when the parties agreed to enter the action before the magistrate, and that by, this agreement the right of appeal was taken away. They therefore dismissed the appeal.
    
      Metzgar, for the plaintiff in error, assigned as error,
    1. That an agreement not to appeal is not binding, unless it be in writing. 2. That there was no evidence to prove the alleged agreement. The witnesses contradicted each other. .
    
      Alexander, contra,
    contended, that the appeal was properly dismissed, as being in violation of the agreement of the'parties,. There could' be no question but such an agreement would be binding if it were in writing. It -was decided in Galbreath v. Colt, 4 Yeates, 551, that an agreement filed, that there shall be no'appeal, is binding. ■ An agreement not to take a writ of error is binding. 2 Binn. 169. An|agreement of recordnot.to appeal is binding. 4 Mass. Rep. 516. There is no rule of law or reason which requires that such an agreement should be iniyriting: more especially where it is ‘á part of the agreement to refer, and prior in time to the appearance- of the parties before the magistrate.
    
      Metz gar, in reply,
    observed, that he could find no case where an .appeal had been dismissed on account of an agreement not to appeal, unless the agreement were in writing. In all thexases cited, the agreement was of record. In the present case, the agreement was by .no means clearly proved. ■Besides, the agreement to refer in the, usual way was of record, and cannot1 be varied by parol evidence.
   The opinion of the Court was delivered by

Gibson'J.

The appeal, being secured by an. express provision of a statute,-instead of resting on the discretion either of the justice or the Common Pleas, is a legal right which can be-relinquished only by an express agreement. On an application to quash, by what kind of evidence is such agreement,to. be established ? Not,by parol; for it could not be put on the record; and' a superior Court, therefore, could not inquire whether it were sufficient to justify the judgment of the Court below. It is no. answer to-say, the1 inquiry may be oh depositions filed in the cause, and' that the evidence -may thus be subjected to the inspection of the superior Court. A Court of..Error cannot look beyond the record, .and nothing is more certain than that a paper does not become a part of the record, merely by being filed. But, admit that thir Judges of the superior Court might look at the depositions; are .they-to become triers of the facts? That .would require them to decide oh the credibility of the witnesses: a,matter about which they must necessarily be absolutely ignorant. Depositions can -be put on the record only by a,-bill of éxceptions, and even that, required the authority of an express- statute they can therefore be made the groundwork of a writ of error'in rio-óase where the bill of, exceptions does not lie. It is said- the Court may inquire'by parol evidence into the. grounds of a motion to quash a writ; and why not, to quash an appeal ? The difference is obvious. Every-Court necessarily has. a discretionary (controul over its own process; in .the .exércjse of which, its judgment is subject to the revision of no .tribunal whatever : the appeal is a matter of right, which, if denied by the Court .to which it is made, may be claimed in the Court of the last resort. I therefore ¡take the distinction to be this :—A Court may inquire by parol evidence, .as to any matter that is purely within its own discretion : but where the matter is the subject of a writ of error, it can consider of nothing which. is incapable of being made a part of the record, and as such the ground of an exception in the Court ahoye. The right of appeal, therefore, cannot be relinquished, except, by an agreement reduced to writing, and' made part of the proceedings, either before the justice, or in the Common Pleas'. Beside this^ the evidence on Which the motion was decided, was offered to add to the written agreement of reference before the justice ; and on that ground it should have been rejected; The judgment is reversed, and the record remitted to the Common ■ Pleas, with directions to reinstate the appeal.

Judgment reversed.  