Buckley v. Durant

Buckley v. Durant. Award. Where exceptions to a report of referees arise from the face of the report, and depend upon construction of law, they need not be' filed in writing, within four days. This was an action of Trover. Non end. pleaded, and issue. After-wards, the cause was referred, and report made, “ That plaintiff pay to defendant 3¿.; upon which payment being made, defendant to restore to plaintiff certain articles, for trover and conversion of which the action was brought.” Judgment nisi had been entered on this report; and now August 13, 1785, Lewis, for the defendant, offered to state his objections to the confirmation of the report. Sergeant and Banhson objected to going into the argument, and insisted, that judgment should be made absolute, *because no exceptions to the report had been filed in writing, which •- they contended ought to have been done, within four days from the entry of the judgment nisi. Lewis admitted, that where the exceptions arose from facts, such as misbehavior of the referees, want of notice, &c., it was necessary that they should be in writing; but insisted, that where the objections arose from the face of the report, as in the present case, and depended upon construction of law, there was no such necessity. And accordingly The Court permitted him to proceed, He took three exceptions:— 1. The act of assembly giving references, by rule of court, in actions depending, puts the reports of referees on the same footing precisely with the verdict of a jury. Now, in trover, a verdict can never be for restoration of the specific chattels, but for damages only, and such a verdict would be error; therefore, he inferred the same law in the case of a report. 2. The report, on the face of it, shows the action of the plaintiff to be illegal — for pawnee has a right to detain his pledge, until payment of the sum for which the pledge was given; and until such payment, pawnor can have no action to recover the thing pawned, or damages. Now, the report finds 3i. due from the plaintiff to the defendant, which at once defeats his right of action, and shows that judgment should be for the defendant. 3. A report should be such a one as that the court may give judgment, and award execution thereon. Judgment cannot be for both plaintiff and defendant on one issue; and this report gives something to each; it is a report on both sides; judgment and execution can be only for one. Shewell v. Wycoff, post, p. 312; Shoemaker v. Smith, 2 Binn. 239; Hamilton v. Gallagher, 4 Yeates 202; Davis v. Canal Co., 4 Binn. 296; Thellusson v. Cramond, 1 W. C. C. 319. Mr. Sergeant mentioned, that on a former argument of this cause, this exception was combated by an observation, that even if judgment could not be entered on the report, according to the common forms, yet the reference being made under the eye of the court, they would grant an attachment to compel compliance with the report, and the case of Ralston i>. Stewart was mentioned, where the supreme court, it was said, established this point. Time had been given to the plaintiff’s counsel to search for notes of this case; and no note being now produced, Mr; Lewis said, that although he was concerned in that cause, with the gentleman who cited it (Mr. Sergeant), yet he could not remember that any such point had been adjudged, and contended, that the act of assembly gave no such authority, and that no instance of such an attachment had ever been known in our practice. The case of Stewart v. Ralston, is cited by President Shipper, in Kunckle v. Kunckle, post, p. 365, where it was held, that a party may be compelled by attachment to perform a specific act, ordered by the award. And see Blackburn v. Markle, 6 Binn. 174, and s. c. in 12 S. & R. 143. [MAJORITY — The Court] The Court inclined strongly to be of opinion with Lewis, particularly on the first point; but no judgment was given, that the parties might, if they would, accommodate the matter by a new reference ; and, accordingly, it was afterwards referred de novo.