Majority
p. 560Joseph Samble versus The Mechanics’ Fire Insurance Company. April Term, 1829. resisted the motion upon the ground, that questions of law might arise, which could not be disposed of by the referees.
Headnote
In an action upon a policy of insurance against fire, if the defendants admit that they are liable for the loss, and the controversy between the parties relates solely to items of injury, and the amount of loss sustained by the assured, the court will refer the matter to referees, to adjust the amount.In mixed questions of law and fact, where long accounts are involved, it is the practice of the court to hear the cause until the questions of law are disposed of, and then refer the accounts to referees. If the referees named are objected to by eitherparty, the court will draw them from the jury box. ;
Mr. P. A. Cowdry, on the part of the defendants in this cause, moved, that the matters in controversy between the parties be referred to referees, to adjust the amount of the plaintiff’s claimr The defendants (he said) admitted the making of the policy, and their liability for the loss, and their defence related to the amount of the plaintiff’s claim, and not to the principles upon which it was founded. The preliminary proofs showed a great number of items said to have been injured or destroyed; and Mr. Cowdry contended, that the accounts relating to the injury, should be referred to referees for adjustment.
Mr. J. Anthon, contra, for the plaintiff,
The defendants admit all the principles upon which the plaintiff’s claim rests, and confine their defence exclusively to the items of injury, and the amount of the loss. There cannot, therefore, be any questions of law involved in the controversy, and the duty of the referees will be confined entirely to the questions of fact presented by the account of loss. As the injury sustained by the plaintiff extends to a great variety of items, the amount and extent of his loss can be much more conveniently ascertained by referees than by a jury.
p. 561
Where there are mixed questions of law and fact presented by long accounts, our practice is to hear the cause until the questions of law are disposed of, and then send the accounts to referees for adjustment. The jury, in the meantime, are directed to bring in a verdict for an amount sufficient to cover the plaintiff’s claim, which is to be modified, or reduced to the amount reported by the referees. This practice saves much time, and the referees can look into the items of the accounts with a proper degree of accuracy and care. If the referees named are objected to by either party, the court will draw them from the jury box, and obtain an impartial tribunal by this means. This course will be resorted to in the present case, if the parties object to the referees now named to the court. _
Motion granted,
[E. Burr, Att’y for the plff. P.