Wilkins v. Burr

Tilghman C. J. In considering this case the Court can take no notice of Mr. Gratz or of the house of Simon Gratz Co.; becaue the action was not brought for their use, nor does it appear by legal evidence that they have any interest [391] in it. The affidavit of Joseph Gratz might be received by the court as the ground of a motion; but when the motion came -to be heard on its merits, no regard could be paid to it, because he was an incompetent witness. Taking the matter as it stands then between the parties to the action, the defendant only asks the performance of the plaintiff’s agreement, founded on a good consideration, and entered into with deliberation. The defendant has performed his part by abstaining from filing a bill in equity, and it is impossible for us to say that he may not be injured if this action is suffered to proceed. When the plaintiff wrote the order for discontinuing the suit and delivered it to Mr. Clay the attorney for the defendant, it became irrevocable. There is no suggestion of any kind of deception, imposition or improper conduct in obtaining the order. The case falls then within the reason of thaCprinciple, by which courts compel the specific execution of agreements concerning suits depending before them. I apa of opinion therefore, that the rule should be made absolute, annexing one condition which justice requires. The cause has been depending a considerable time in this court, and it is possible that if the plaintiff brings a new action he may be barred by the statute of limitations. The defendant must therefore engage, that if the plaintiff discontinues this suit, and brings another, the statute ’ of limitations shall not be pleaded. Yeates J. and Brackenridge J. concurred. Rule absolute,