Majority
p. 219Hawkins and others against Bradford.
Headnote
On a reference, if a receipt given after the rule made, be offered in evidence on the part of the defendant, and objected to by the plaintiff, the special matter and facts should not be returned to the court, but the referees should admit it and make the report upon it, that the party aggrieved may bring it fully before the court. Quaere, if a special return of facts without a decision be, in any case, a report within the meaning of the rule.Van Vechten moved for a rule against the referees in this suit, to show cause why an attachment should not issue
p. 220
against them for not making up their report, or that they be ordered so to do. The affidavit .on which the application was founded set forth that at the meeting of the [*161] referees, *after the counsel of the plaintiffs had opened their case, and stated the nature of their demand, the counsel for the defendant presented a plea to the referees on receipt of which they refused to hear any testimony on the part of the plaintiffs, and neither reported any thing due to them, nor did they make any report in favor of the defendant.
Spencer, contra,
resisted the application, and submitted to the court a special statement of the matter in the nature of a report. The facts as there stated were, that after the due assembling of the referees, &c., they called on the counsel of the plaintiffs to specify his clients’ demand, which, excepting the question of interest, was originally admitted by the defendant’s counsel to amount to about 1,400 dollars, but that there was a defence, which would supersede the necessity of proving the exact sum claimed, though it might be ascertained by the books and bills before the referees; that the defence was, payment of 1,469 dollars in full satisfaction, for proof of which a receipt was offered in evidence, and an acknowledgment, under the hand of the plaintiffs’ attorney, admitting certain things which the subscribing witness would have sworn to, if present. That the plaintiffs objected to the admission of this testimony, but before the question of admissibility could be argued, the defendant produced- the following plea: “And now at this day, that is to say, on the 19th day of July, 1803, before George Hale, Samuel Edmonds, and Roswell Hotchkis, referees herein appointed, it being the first day and time of their meeting hereon and upon the matters referred to them in the above cause, comes the said John, by Erastus Root, his counsel, and says that the said Joseph, &c., ought not further to maintain their said action against him the said John, because he says, that
p. 221after the 14th day of May last past, from which day, day was given to the said referees to make their report until the first Monday in August next, before the justices of the supreme court, &c., at the city-hall of the city of Albany aforesaid, the aforesaid action was continued, to wit, on the 28th day of May, in the year aforesaid, at the city of Albany, in the county of Albany aforesaid, the said John did pay to the said Joseph, &c., the sum of one ^thousand four hundred and sixty-nine dolías in [*162] full satisfaction, and discharge of all and singular the matters and things, and the sums of money due to the said plaintiffs, and for the recovery whereof this aforesaid action hath been brought and prosecuted, and which said sum of one thousand four hundred and sixty-nine dollars was then and there accepted, taken and received by the above plaintiffs, in full satisfaction and discharge of all and singular the matters and things, and of the sums of money due to them, and for the recovery whereof this aforesaid action hath been brought and prosecuted, and this, &c., wherefore,” &c. That thereon the referees adjourned the further hearing, and returned the said plea. This was a report; it was all the referees could do, as they could not undertake to decide whether the plea was good or not, that being matter of law.
The motion is that the referees be ordered to make a report, they having, instead of that, made a special return of all the facts, to which they have annexed the plea of the defendant, offered to them at the hearing. The application must be granted; therefore, let the rule bq that the referees report by the first day of next term.[1]
observed, that the bench were of opinion the referees should, in making up their report, allow the receipt, if they believed it genuine, and to have been fairly obtained,
(a) (a) Attachment is the proper course to compel a report, where referees refuse to make one. Thompson and others v. Parker, 3 Johns. Rep. 260 .
p. 222
in order that the plaintiff, on whose affidavit the application was made, might, if he thought himself aggrieved, or that it was improper to allow a receipt given after the rule to refer, apply to the court to set aside the report on that ground, at which time the question might be fully' argu^d.[2]
fggP The Court desired , that all cases submitted to them without argument should • be so endorsed, because ~ they might otherwise be laid aside under an idea that an argument would take place.
[1] [1] See Code of Procedure, sea 212.