Hawkins v. Bradford — 1 Cole. & Cai. Cas. 216

Majority

p. 216

Joseph Hawkins and others v. S. Bradford.

Headnote

VAN VECHTEN moved for a rule,, against the referees in this suit, to show cause, why an attachment should not issue 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 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 favour 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 acknowledge

p. 217

fnerlt, under the hand of the defendant’s 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, 1303, before George Hale, Samuel Ed- “ monds and Roswell Hotchkis, referees herein ap- ££ pointed, 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 6£ 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 after 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 “ dayr 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 dollars in full S£ satisfaction, and discharge of all and singular the i£ 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 prose-4£ outed, and which said sum of one thousand four “ hundred and sixty-nine dollars, was then and there <£ accepted, taken and received by the above plain- “ tiffs, in full satisfaction and discharge of all and

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C<¡ s*n§u^ar matters and things, and of the sums of “ money due to them, and for the recovery whereof, “ this aforesaid action hath been brought and prose- “ outed, 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 be, that the referees report by the first day of next term.

N. B. After giving the opinion of the court, Kent, J. observed, that their honours would advise the referees in making up their report to allow the receipt, if they believed it genuine, and to have been fairly obtained, in order that the plaintiff, on whose affidavit the application was made, if he thought himself aggrieved, or that it was improper to allow a receipt given after the rule to refer, might apply to the court to set aside the report on that ground, at which time the question might be fully argued.

The Court desired that all cases submitted to them without argument, should be so indorsed, because

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they might otherwise be laid aside, under an idea that an argument would take place.