Brown v. Scott
BROWN versus SCOTT et al.
R
ULE to shew cuase why the report of referrees should not be set aside. The facts were these :— Four actions had been brought upon four promisory 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 since the return of the preceeding writs ; and accordingly the whole were referred to persons nominated by the Court, a rule for that purpose 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 sum 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 advised them to connect the five rules, and make one general report, for the whole sum. 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 several actions commenced by ‘‘ the former against the latter, do adjudge that the defendants are ‘‘ indebted to the plaintiff £ 1301, 3, 11, and that the fame ought ‘‘ to be paid accordingly.’’ All the referrees signed the report, and two of them attended in Court, and give testimony, that both parties were fully and patiently heard, and no objections were made, on either side, to the mode of proceeding. Nor was there any suggestion in the coure of the argument, that the referrees that acted with partiality, injustice, &c.The motion was supported by Ingersol, Coulthurst and Heatly, for the defendants, and they contended, that the report was neither certain, mutual, nor final.
1st. For that the report says £ 1301.3. 11, is to be said ‘‘ accordingly’’— accordingly to what ? (illegible text) of payment was a (illegible text) part of the dispute ; and this was left uncertain. 2d. For that the report contains no directions that these notes should be delivered up ; and as defendant cannot apply to a Court of Chancery, as he might in England, for an injunction, they might still be circulated, and in the hands of a bona fide indorsee, so that the defendant may be compelled to pay the money over again ; consequently 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 Assembly 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 similar 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 sums?
Wilson, Sergeant and Sitgreaves, for the plaintiff, were desired by the Court to confine themselves to the last objection, as the first was not supported by testimony ; and with respect to the second, it would overset too many reports, were the objections of want of mutuality and not being final, upon such grounds, to defeat the report.
Taking up, therefore, the third objection, they argued that the referrees noting charged with partiality or misconduct, the objections to the form of the report, must find a cold reception with the Court. If judgment cannot be entered upon the record as it stands, the Court may interrogate the referrees and divide the fum ; or they may allow the plaintiff to sue out execution in one action and release the others, or by their own authority, the Court may interpose, and consolidate the actions. 2 Stra. 420. But, in fact, it was contended, that the actions were already consolidated by the consent of the parties in the filed agreement ; which is surely as much a part of the record, as a verdict, or a report ; and by the submission of all matters in variance, the cause of action in each of the actions, is submitted in every one of them. Hob. 54. 12 M. 234. Stra. 514. 3. Bac. Abr. 288.
Ingersol in reply. Awards at common law differ so widely from reports under our act of Assembly, that scarce any authority upon the subject of the first, is applicable to the second. In the first case, terms may be imposed before the Court will grant attachments ; but here the report is equivalent to a verdict, and the sole point now, is, whether, if it were truly a verdict, judgment could be entered upon it. It was not discovered ‘till late in the argument that the parties themselves had consolidaated the actions ;but upon the examination of the agreement nothing will appear that shews that intention, or produces that effect. It enumerates all the four actions, says that rules ( in the plural) shall be entered in these several actions ; and then there is a fifth action entered in this very agreement, which it is subsequently and separately agreed to refer. At least, therefore, this last action is not consolidated.
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.