Hart v. James

by Supreme Court of the United States

HART et al. verʃus JAMES. 2 Actions.

T

HESE actions were brought upon three promiffory notes, two of which (included in one declaration) had been indorfed to the Bank; and the third was in the poffeffion of Meffrs. Hartʃhorne and Large, as a collateral fecurity from the Plaintiffs, for the payment of a debt amounting to nearly the fum mentioned in the note. In both actions judgments had been entered generally, on the 28th of April, 1788, with an agreement in each, that the quantum fhould be afcertained by a reference, and a report made to next term. The referees, however, were not appointed until the 8th of July, 1788, fix days after the commencement of the term, and they made no report until the 5th of Auguʃt following; when one report was made in favor of the Plaintiffs, for one fum, including what was due in both actions. On the 8th of Auguʃt the Plaintiff's applied for writs of execution; but, upon the Prothonotary's expreffing a doubt as to the manner of iffuing them, on account of this confolidation of the fumes in the report, the Plaintiff's prevailed on the referees feparately, and without the confent or knowledge of the Defendant, to fign the following explanatory certificate:– “ For the better explanation

“ of our report in the actions of John Hart and Chamleʃs Hart againft

“ Benjamin James, we find due to the Plaintiffs in the firft action the

“ fum of Ł325. 19. 5. and, in the fecond, the fum of

“ Ł 668. 2. 9.” — This certificate was filed on the 15th of Auguʃt, when writs of ʃicri ƒacias were taken out, without giving notice of the report to the Defendant ; who, however, accidentally heard of it, and on the 18th of Auguʃt, after the executions were iffued, befiled the following exceptions. 1. That one report is made in two actions. severally referred.

2. That the Referees filed a supplementary report without the knowledge of the Defendant, at the instance of the Plaintiffs.

3. That the first report is on condition, and therefore the Referees have mistaken a plain point of law; the second report being made after their authority had expired.

4. That the promissory notes for which the actions were brought, are not in the Plaintiffs hands, but assigned for a valuable consideration, and, therefore, there is no legal cause of action.

The exception being oppofed by Fisher for the Plaintiffs, and supported by Ingersoll and Dallas for the Defendant, THE COURT seemed clearly of opinion, that the first report could not be maintained ; that the supplementary report was irregular ; and that the rule rule of reference to report to next term , did not authorise the issuing execution upon the report into office during the vacation (particularly without notice to the Defendant) although a term had intervened between the entering of the rule, and the appointment of the Referees.

No opinion was given on the other points, but the execution and report were, for the above reasons, set aside, and the actions, by consent, referred de novo.