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R

ULE to fhew cuafe why the report of referrees fhould not be fet afide. The facts were thefe :— Four actions had been brought upon four promifory notes, and the parties, being willing to refer them, by a written agreement entered a fifth action on the docket, in order to take in another note, which had become due fince the return of the preceeding writs ; and accordingly the whole were referred to perfons nominated by the Court, a rule for that purpofe being taken out in each action. The parties wee heard before the referrees, and the report agreed upon, when a difficulty occurred, how to apportion the fum that was found due,, or in what manner to make the report, if it was not apportioned. The referrees, therefore, applied to a gentleman of the law, who advifed them to connect the five rules, and make one general report, for the whole fum. Conformably to this advice, the following report was made. ‘‘ We the referrees appointed in the annexed five rules of ‘‘ Court to hear and determine the matters in variance between ‘‘ plaintiff and defendants in the five feveral actions commenced by ‘‘ the former againft the latter, do adjudge that the defendants are ‘‘ indebted to the plaintiff Ł 1301, 3, 11, and that the fame ought ‘‘ to be paid accordingly.’’ All the referrees figned the report, and two of them attended in Court, and give teftimony, that both parties were fully and patiently heard, and no objections were made, on either fide, to the mode of proceeding. Nor was there any fuggeftion in the courfe of the argument, that the referrees that acted with partiality, injuftice, &c.

The motion was fupported by Ingerʃol, Coulthurʃt and Heatly, for the defendants, and they contended, that the report was neither certain, mutual, nor final.

1ft. For that the report fays Ł 1301.3. 11, is to be faid ‘‘ accordingly’’— accordingly to what ? ^{(illegible text)} of payment was a ^{(illegible text)} part of the difpute ; and this was left uncertain. ​

1785.

2d. For that the report contains no directions that thefe ntoes fhould be delivered up ; and as defendant cannot apply to a Court of Chancery, as he might in England, for an injunction, they might ftill be circulated, and in the hands of a bona fide indorfee, fo that the defendant may be compelled to pay the money over again ; confequently the report is neither mutual, nor final, Cro. J. 315. Cro. C. 112. 1 B. M. 304. 2 B. M. 1224. Doug. 362. 5. Bac. 289. 313.

3d. The reports of referrees under the act of Affembly are acknowledged to be different from awards at common law ; but in fact there is little difference between them and verdicts. If, therefore, there actions had been tried by a jury, and a verdict given fimilar to this report, no judgment could be given on it. Co Litt. 227. Hob. 49. Stra.1024. For on what action can the Court award execution, or how can they apportion the fums?

Wilʃon, Sergeant and Sitgreaves, for the plaintiff, were defired by the Court to confine themfelves to the laʃt objection, as the firʃt was not fupported by teftimony ; and with refpect to the ʃecond, it would overfet too many reports, were the objections of want of mutuality and not being final, upon fuch grounds, to defeat the report.

Taking up, therefore, the third objection, they argued that the referrees noting charged with partiality or mifconduct, the objections to the form of the report, muft find a cold receptin with the Court. If judgment cannot be entered upon the record as it ftands, the Court may interrogate the referrees and divide the fum ; or they may allow the plaintiff to fue out execution in one action and releafe the others, or by their own authority, the Court may interpofe, and confolidate the actions. 2 Stra. 420. But, in fact, it was contended, that the actions were already confolidated by the confent of the parties in the filed agreement ; which is furely as much a part of the record, as a verdict, or a report ; and by the fubmiffion of all matters in variance, the caufe of action in each of the actions, is fubmitted in every one of them. Hob. 54. 12 M. 234. Stra. 514. 3. Bac. Abr. 288.

Ingerʃol in reply. Awards at common law differ fo widely from reports under our act of Affembly, that fcarce any authority upon the fubject of the firft, is applicable to the fecond. In the firft cafe, terms may be impofed before the Court will grant attachments ; but here the report is equivalent to a verdict, and the fole point now, is, whether, if it were truly a verdict, judgment could be entered upon it. It was not difcovered ‘till late in the argument that the parties themfelves had confolidaated the actions ;but upon the examination of the agreement nothing will appear that fhews that intention, or produces that effect. It enumerates all the four actions, fays that rules ( in the plural) fhall be entered in theʃe ʃeveral actions ; and then there is a fifth action entered in this very agreement, which it is fubfequently and feparately agreed to refer. At leaft, therefore, this laft action is not confolidated. ​

To disfcontinue, or releafs four, and fign Judgment upon the fifth would be impoffible, becaufe the report exprefsly comprifes more than the fifth action was brought for. And to call upon too referrees, and by their affiftance divide the fum, would be an illegal ftretch of power, which was not to be apprehended from the court. Nor, as to the point of confolidation, has the court authority to do more than grant imparlances in fome of the actions, to induce the party to confent that the trial of one fhall decide the reft, which would be no relief in the prefent cafe.

On the 15th of November the PRESIDENT delivered the opinion of the Court as follows.

SHIPPEN, PRESIDENT. The juftice and faimefs of the tranfaction, on the part of the plaintiff, is fo obvious ; and the confent of the parties to confolidate the actions, is fo nautrally implied from the whole of the proceedings, that may brothren ^[♦] think the report ought to be confirmed.

For myfelf, I doubt the legality of it,, becaufe I do not fee how it is poffible to enter judgment upon the report fo as to avoid error. The confolidation of actions is intended to face expence, and might have been ordered by the Court on motion ; but this agreement of the parties does not appear to me to amount to a confolidation, there being five feveral rules of reference in the five feveral actions ; and though, indeed, the referrees have undertaken to confolidate them, I much doubt their authority fo to do. Inftead of finding a grofs from due on all the notes, they might found what was due on each note, and have reported the feveral fums on the feparate rules of referrence. However, as my brethren think the report ought to ftand, let it be confirmed, and the plaintiff may make up the record as he thinks fafeft.