Hart et al. v. James. Two Actions

Hart et al. v. James. Two Actions. Reference. Referees have no power to consolidate. Where referees had made one report, in two several actions ref erred to them, on promissory notes, and afterwards filed a supplementary report, distinguishing the sums found in each action, the court set aside both reports. Where referees wore to report to the next term, it was held, that the agreement did not authorise the issuing an execution, upon a report into office, during vacation; although a term had intervened between the entering the rule, and the appointment of referees. These actions were brought upon three promissory notes, two of which (included in one declaration) had been indorsed to the bank ; and the third was in the possession of Messrs. Hartshorne & Large, as a collateral security from the plaintiffs, for the payment of a debt amounting to nearly the sum mentioned in the note. In both actions, judgment had been entered) generally, on the 28th day of April 1788, with an agreement in each, that the quantum should be ascertained by a reference, and a report made to nex.t term. The referees, however, were not appointed until the 8th of July 1788, six days after the commencement of the term, and they made no report until the 5th of August following ; when one report was made in favor of the plaintiffs, for one sum, including what was due in both actions. On the 8th of August, the plaintiffs applied for writs of execution ; but, :pon the prothonotary’s expressing a doubt as to the manner of issuing them, on account of this consolidation of the sums in the report, the plaintiffs prevailed on the referees, separately, and without the consent or knowledge of the defendant, to sign the following explanatory certificate : “ For the better explanation of our report in the actions of John Hart and Chamloss Hart against Benjamin James, we find due to the plaintiffs in the first action the sum of 325i. 19s. 5d., and, in the second, the sum of 668i. 2s. 9d.” This certificate was filed on the 15th of August, when writs of fieri facias were taken out, without giving notice of the report to the defendant; who, however, accidentally heard of it, and on the 18th of August, after the executions were issued, he filed the following exceptions. *1. That one report is made in two actions, severally referred. [*356 2. That the referees filed a supplementary report, without the knowledge of the defendant, at the instance of the plaintiffs. 3. That the first report is on condition, and therefore, the referees have mistaken a plain point of law ; the second report being made after their authority had expired. 4. That the promissory notes for which the actions were brought, are not in the plaintiff’s hands, but assigned for a valuable consideration, and therefore, there is no legal cause of action.. The exceptions being opposed by Fisher, for the plaintiffs, and supported by Ingersoll and Fallas, for the defendant, the Court seemed clearly of opinion, that the first report could not be maintained ; that the supplementary report was irregular: and that the rule of reference to report to next term, did not authorise the issuing executions upon the report into office, during the vacation (particularly without notice to the defendant), although a term had intervened between the entering of the rule, and the appointment of the referees, See Brown v. Scott, ante, p. 145, and the note to that case. See Barre v. Affleck, 2 Yeates 274. [MAJORITY] No opinion was given on the other points, but the execution and report were, for the above reasons, set aside, and the actions, by consent, referred de novo.