Shaw against Pearce

[Philadelphia, Saturday, July 18, 1812.] *Shaw against Pearce. A rule of reference directing the report to be made to the next court or next term, makes it incumbent upon the referees to make report to the next term after the submission; but if the report is not then made, it may be made to any succeeding term, and to an adjourned court as part of the term. If a report is set aside for mere informality, the court may send it back to the referees, without consent pf parties: but if it is set aside in consequence of a material error in the manner of conducting the business, consent of both parties is essential to induce the court to send it back. Qu. Whether the court would not recommit it if the referees requested it ? In this case, the matters in dispute between the parties were on the 23d of March 1805 referred under a rule of Court, report to be made to the next Court; and on the 20 th of June 1812, a report was filed in the prothonotary’s office, awarding to the defendant 5842 dollars 80 cents. Exceptions were filed on the 3d of July, and on the 6th instant the report was read at the present adjourned Court, and set down upon the argument list. The cause being now called up, J. R. .Ingersoll for the plaintiff, contended that it wa,s not regularly before the Court. In strictness the report should have been made to the next Court after the submission; but allowing the practice to govern the cause must be considered as continued from term to term, and therefore as having gone over to the next December term, by a continuance at the last March term. The exceptions cannot be argued until that time shall arrive. Though a trial had taken place since March, the postea would not be returnable until December. In Massachusetts, reports of referees stand upon much the same footing under their statute. Mott v. Anthony, 5 Mass. Rep. 489; Southwoth v. Bradford, 5 Mass. Rep. 524. Levy contra, said that the word term or court comprehended the whole time of the Court’s sitting, and therefore that a report might be made at any time during the sitting and at an adjourned Court as well as at the regular session. Granting this to be the case, it followed that the present report was made as much within the terms of the rule, as if it had been made on the first day of March term, and therefore was as regularly before the Court at this time, as it could be at any time. [MAJORITY — Tilghman, C. J. Yeates J. Brackenridge J. Tilghman C. J.] Tilghman, C. J. I construe the rule of reference thus,— report to be made to the next term succeeding the entry of the rule. Yet Mr. Ingersoll does not contend that the award is void for that reason. He allows that a report made at a succeeding term is good; that the rule is understood to *be continued, although its terms have not been strictly complied with. That being the case, I consider the whole sitting of the Court, including its adjournment, as one day, although when justice requires it, the Court will discriminate the different days of their sitting. The case of trials at Nisi Prius, where the postea is returned to the Court after the trial, depends upon a different principle from reports of referees. These reports may be returned at any time during the Court’s sitting, and judgment entered as on a trial in banc. Yeates J. said that he construed the rule thus, that report was to be made to the next term after it was agreed upon and filed; and therefore that the present report was made to the next December term, and not now before the Court. Brackenridge J. My opinion of the principle is this. A rule of reference is a rule of Court, binding upon the referees. They are bound to obey it under pain of contempt. The next term is inserted to avoid delay; and if they will not report to that term, an application may be made for a rule to show cause why an attachment shall not issue against them. I conceive the next term means the term next after the submission. If the award is not made then, it may be made to any term, and to an adjourned Court as part of a term. The Court therefore proceeded to investigate the exceptions, and after hearing the referees, they were of opinion that the referees had erred in delegating their power to accountants whom they had found it necessary to employ, and in refusing at the instance of one of the parties, to open a matter upon which the accountants had decided. The report was therefore set aside. Levy thén moved the Court to refer the report back to the same referees, with instructions to examine and decide upon such items of the account reported, as either party might except to. His motion he said was founded upon the practice of the Court; and upon its authority as a Court of Equity, to prevent the entire loss of so many meetings of the referees, and so much labor of the accountants. A^rrsoii cited Snyder v. Hoffmann, 1 Binn. 43, and said that the Court never referred an award back to the same referees, without the consent of parties, except to correct informality; and the plaintiff for many reasons declined consenting. Tilghman C. J. When there is a mere informality in the report, the Court may send it back without consent. But where, as in the present cáse, the award is set aside in consequence of a material error on the part of the referees, in the manner of conducting the business, consent of both parties is essential to induce the Court to grant such a motion. It is not necessary to say what would be the case, if the referees themselves requested that the report should be recommitted to them. But that is not the present case. On the contrary, one of the referees has expressed an unwillingness to perform the duty in any other manner, than that already practised. Per Curiam. Motion refused. [Cited in 4 W. 65. J