1789.
Whether this agreement was made in perfon, or by a Broker, mutually employed, it is equally binding on the parties ; and, under the agreement,all the underwriters were fully entitled to interfere upon the former trial, and to crofs-examine the witneffes then produced. Although, therefore, we fhould not have allowed the fpecial verdict to be read without full proof of the agreement; yet, on receiving that fatisfaction, we think it would be unfair to fupprefs it ; and, for the future, we defire, that all fuch agreements may be entered on the records of the Court.
The admiffion of this evidence, however, cannot be conclufive ; as it is manifeft, that teftimony has been given on the prefent occafion, different from what was given on the former ; and, confequently , a very different verdict may with great juftice and propriety take place.
HAMILTON EXOR. verʃus CALLENDER'S EXORS.
T
HIS action being referred by confent, the following report was made:–“ The Referrees upon full confideration of all
“ the circumftances, are doubtful as to the law upon one point,
“ and have agreed to make their award fpecial, fubject to the opi-
"nion of the Court. <
“ The cafe fubmitted to them appeared to be as follow:– On
“ the 16th of March, 1773, Robert Callender was indebted to James
“ Hamilton in the fum of Ł2120, fterling, for which he gave to
“the faid James Hamilton, a bond and warrant of attorney, and a
“ mortgage upon an eftate in the county of Cumberland. It ap-
“ peared hat intereft was paid thereon to March 1776, and that
“ receipts for fuch payments are indorfed on the mortgage.
“ Robert Callender died, and, fometime after, his executors fold
“ part of the mortgaged promiffes to Mark Bird, who undertook to
“ pay off the principal fum, together with the intereft that fhould
“ become due after the date of his purchafe.
“ It is agreed that James Hamilton remitted one year's intereft
“ to the executors of Callender ; and that Mark Bird gave his bond
“ bearing date the 3d of May, 1783, to James Hamilton for Ł651
“ fterling, being the whole of the intereft then due on the mort-
“gage, exclufive of the year's intereft remitted. No difcharged
“ was given upon the mortgage either for the year's intereft re
“ mitted, or for the amount of the bond: nor does it appear, that
“ the executors of Callender had any notice of the bond, or that
“ they had been applied to for the payment of any intereft after the
“ fale to Bird.
“ Bird hasnever paid any part of the principal, or intereft ;
“ and, in the end of the year 1784, a Scire Facias iffued on the
“ mortgage ; but the fale was poftponed from time to time ; and,
“ in the meantime, Bird became a bankrupt. On the 19th of May,
“ 1787, however, the eftate held by Bird was fold under the Scire
