Davis for the use of Hazard and Morgan against The President, &c., of the Schuylkill and Susquehanna Canal Navigation, &c.

[Philadelphia, Thursday, December 26, 1811.] *Davis for the use of Hazard and Morgan against The President, &c., of the Schuylkill and Susquehanna Canal Navigation, &c. If referees themselves certify to the court that they have committed a mistake in their award, the court will inquire into it, although no exception upon this ground has been filed within the four days after report into office ; but although exceptions stating other mistakes of the referees as well as that admitted, have been filed after the four days, and before the next term, yet the whole matter is not opened by the certificate of the referees, but the party is confined to the exception stating the mistake which they have certified. Meredith on behalf of the defendants, moved to dismiss certain exceptions to a report of referees in this cause, upon the ground that they had not been filed in time. By the record it appeared that the cause was referred under a rule of court on the 80th of October 1810, the report to be made into office, and judgment to be entered thereon. On the 9th of August 1811 the report of the referees was filed in the prothonotary’s office, awarding á sum due to the plaintiffs, and judgment nisi was entered. On the 12th of August notice of the report was given to Messrs. Hazard and Morgan, who on the 22d of October, and not before, filed exceptions. Meredith and Hallowell contended that by the perfectly established practice of this court, the exceptions should have been filed within four days after notice, and that of course the present exceptions could not stand. They cited Shewell v. Wykoff, 1 Dali.- 312, and Kyd on awards 380, note (a). JRawle contra, relied upon the following certificate of the referees, which had been filed on the 16th October 1811, as taking the case out of the general rule. “ We beg *leave to certify to the court, that upon reflection on the report made in the above case, we are all satisfied that we have committed a plain mistake, considerably to the prejudice of Ebenezer Hazard .and Benjamin B. Morgan, by the omission of two items in our statements, one of 112 dollars, the other of 240 dollars and interest thereon. If the court think proper to recommit the case to us, we are willing to act again as referees, on due notice to the opposite parties.” The court will receive exceptions after the four days, if they arise out of the face of the report; Buckley v. Durant, 1 Dall. 129 ; which shows that the rule is not inflexible, but is intended principally if not wholly for the government of the attorneys in the cause. The defendants cannot complain of the delay, because the award was in favor of the plaintiff. Reply. The certificate of the l’eferees is merely evidence of a mistake. It does not conclusively prove it; and therefore the mistake must stand upon the same footing with any other latent error, to be made out by due proof, after regular exception. The certificate is ex parte. To admit it, may lead to tampering with referees, and to the complete overthrow of the rule. As to the delay, this and other cases between the same parties in the Common Pleas, wrere referred at the same time. We are precluded from exceptions there, because a term has intervened. It never was heard of that the court has granted a new trial after the four days, upon a certificate of mistake by the jury; and yet the cases are the same. [MAJORITY — Tilgbman C. J. Yeates J. Brackenridge J.] Tilgbman C. J. I consider the certificate of the referees as of itself constituting an exception to the general rule. It was given before the next term after the report was filed; and as the judgment was in favor of the plaintiff; he, and not the defendants, is the sufferer by delay. Besides, the rule requiring exceptions within the four days seems to be for the government of the attorneys; but this is the case of a certificate by the referees that they have committed a plain mistake. The case has never occurred before; and I am . *sat’s;6-e(i that the present circumstances form a safe exception to the general rule. As to the case of a jury, I give no opinion. Yeates J. I am satisfied that the decision of the question shall be as a majority of the Court incline; but I do not feel authorized to go so far. Brackenridge J. I do not think that the general rule extends to such a case as the present; and there is in my mind a clear distinction between this ease and that of a jury. It may be very wrong to permit a jury to state their mistakes after they are completely discharged; but referees are never treated with the same strictness as juries. They explain the ground of their award, and I see no impropriety in permitting them to be heard under circumstances like the present, when they certify to the court, that they are satisfied they have committed a plain mistake. Rawle then proceeded with the exceptions, of which the first two embraced the matter referred to by the referees. When he was about opening the third, the Chief Justice informed him that the Court were unanimously of opinion that he should be confined to the errors alleged by the referees themselves in their certificate. The case was then arranged by the parties. [See contra Tilghman v. Fisher, 9 Watts 441.]