Buckley v. Durant
BUCKLEY verʃus DURANT.
T
HIS was an action of Trover.— Non cul. pleaded, and iffue— Afterwards the caufe was referred, and report made, ‘‘ That‘‘ plaintiff pay to defendant Ł.3 ; upon which payment being made,
‘‘ defendant to reftore to plaintiff certain articles, for Tower and
‘‘ Converfion of which the action was brought.’’ Judgment niʃe had been entered on this report, and now Auguʃt 13, 1785, Lewis, for the defendant, offered to ftate his objections to the confirmation of the report. Sergeant and Baukʃon objected to going into the argument, and infifted that judgment fhould be made abfolute, becaufe
1785.
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 niʃe. Lewis admitted, that where the exceptions arofe from facts, fuch as mifbehaviour of the referrees want of notice &c. it was neceffary that they fhould be in writing ; but infifted, that where the objections arofe from the face of the report, as in the prefent cafe, and depended upon conftruction of law, there was no fuch neceffity. And accordingly the court permitted him to proceed.
He took three exceptions:
1ft. The act of Affembly giving references by rule of Court in actions depending, puts the report of referrees on the fame footing precifely with the verdict of a jury. Now, in Trovera a verdict can never be for reftoration of the fpecific chattles but for damages only, and fuch a verdict would be error : therefore he inferred the fame law in the cafe of a report.
2dly The report, on the face of it, fhews the action of the plaintiff to be legal—for Pawnee has a right to detain his pledge, until payment of the fum for which the pledge was given ; and until fuch payment, Pawner can have no action to recover the thing pawned, or damages. Now the report finds Ł.3. due from the plaintiff to the defendant, which at once defeats his right of action, and fhews that judgment fhould be for the defendant.
3dly A report fhould be fuch a (illegible text) as that the Court may give judgment and award execution thereon. Judgment cannot be for both plaintiff and defend at on one iffue ; and this report gives fomething to each—It is a report on both fides—Judgment and execution can be only for one.[♦]
the court inclined ftrongly to be of opinion with Lewis, particularly on the firft 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 d(illegible text)nero.