Johnson v. Parmely — 17 Johns. 129

Majority

p. 111

*Johnson against Parmely.

Headnote

Where a cause is not referribie under the statute, it involving1 no matter oí account between the parties, the court \v¡il not exercise any control over Lhe proceedings, or interfere to set aside the report of the referees, though they may have admitted illegal or improper evidence ; and the submission or rule of reference, has, by consent of the parties, after issue joined in the cause, been entered in the book of common rules.

MOTION to set aside a report of referees. It was in an action of trover for a horse and two cows. After the cause was at issue, the parties entered a rule of reference, by consent, in the book of common rules, in the clerk’s office. The report and affidavits were submitted to the court without argument.

The affidavits show several incorrect decisions on the part of the referees, as to the admissibility of evidence; but we cannot interfere to set aside the report, which was in favor of the plaintiff, because it is not a case referribie under the statute. There is no pretence of any matter of account between the parties, in any manner connected with the claim or defence. This court will not, therefore, exercise any summary control over the proceedings. It is to be regarded as a mere arbitration, subject to the general law of arbitrament and awards. The entry of the submission in the book of common rules makes no difference. The motion of the defendant must be denied, with costs. (Miller and another v. Vaughan, 1 Johns. Rep 315 . Stevenson v. Beecker, 1 Johns. Rep. 492 .)

Motion denied.