
    Brown v. Scott et al.
    
    
      Powers of referees.
    
    Power of referees to consolidate several actions into one.
    Rule to show cause why the report of referees should not be set aside. The facts were these : Four actions had been brought upon four promissory notes, and the parties, being willing to refer them, by a written agreement entered a fifth action on the docket, in order to take in another note, which had become due since the return of the preceding writs ; and, accordingly, the whole were referred to persons nominated by the court; a rule for that purpose being taken out in each action. The parties were heard before the referees, and the report agreed upon, when a difficulty occurred, how to apportion the sum that was found due, or in what manner to make the report, if it wa.s not apportioned. The referees, therefore, applied to a gentleman of the law, who advised them to connect the five rules, and make one general report, for the whole sum. Conformable to this advice, the following report was made : “ We, the referees, appointed in the annexed five rules of court to hear and determine the matters in variance between plaintiff and defendants in the five several actions commenced by the former against the latter, do adjudge, that the defendants are indebted to the plaintiff 1301Í. 3s. 1 lei., and that the same ought to be paid accordingly.” All the referees signed the report, and two of them attended in court, and gave testimony, that both parties were fully and patiently heard, and no objections were made on either side, to the mode of proceeding. Nor was there any suggestion, in the course of the argument, that the referees had acted with partiality, injustice, &c.
    The motion was supported by Ingersoll, Coulthurst and Heatly, for the defendants, and they contended, that the report was neither certain, mutual nor final.
    1st. For that the report says 1301l. 3s. 11d. is to be paid “ accordingly ” —accordingly to what ? the mode of payment was a chief part of the dispute ; and this was left uncertain.
    
    * 2d. For the report contains no direction that these notes should be delivered up ; and as defendant cannot apply to a court of chancery, as he might, in England, for an injunction,'they may still be circulated, and in the hands of a bond fide indorsee, so that the defendant may be compelled to pay the money over again ; consequently, the report is neither mutual nor final. Cro. Jac. 315; Cro. Car. 112; 1 B. M. 304; 2 Id. 1224; Doug. 362 ; 5 Bac. 289, 313.
    3d. The reports of referees, under the act of assembly, are acknowledged to be different from awards at common law ; but in fact there is little difference between them and verdicts. If, therefore, these actions had been tried by a jury, and a verdict given similar to this report, no judgment could be given on it. Co. Lit. 227; Hob. 49; Str. 1024. For on what action can the court award execution, or how can they apportion the sums ?
    
      Wilson, Sergeant and Sitgreaves, for the plaintiff,
    were desired by the court to confine themselves to the last objection, as the first was not supported by testimony, and with respect to the second, it would overset too many reports, were the objections of want of mutuality and not being final, upon such grounds, to defeat the report.
    Taking up, therefore, the third objection, they argued, that the referees not being charged with partiality or misconduct, the objections to the form of the report, must find a cold reception with the court. If judgment cannot be entered upon the record as it stands, the court may interrogate the referees and divide the sum; or they may allow the plaintiff to sue out execution in one action, and release the others, or by their own authority, the court may interpose, and consolidate the actiozis. 1 Str. 420. But, in fact, it was contended, that the actions were already consolidated by the consent of the parties in the filed agreement; which is surely as much a part of the reeoz’d, as a verdict, or a z-epoz-t; and by the submission of all matters in variance, the cause of action in each of the actions, is submitted in evezy one of them. Hob. 54; 12 Mod. 234; Str. 514; 3 Bac. Abr. 288.
    
      Ingersoll, in reply.
    Awards at common law differ so widely from reports under our act of assembly, that scarce any authority upon the subject of the first, is applicable to the second. In the first case, terms may be imposed, before the couz-t will grant attachments ; but hez-e the report is equivalent to a verdict, azid the sole point now is, whether, if it were truly a verdict, judgment could be entered upon it. It was not discovered until late in the argumezit, that the par-ties themselves had consolidated the actions ; but upon the examination of the agreement nothing will appear that shows that intention, or produces that effect. It enumerates all the four actions, says that z-ules (in the plural) shall be entered in these several actions / ind then there is a fifth action entered in this very agreement, which it is subsequently and sepaz-ately agz-eed to z-efer. At least, therefore, this last action is not consolidated.
    *To discontinue, or z-elease four-, and sign judgment upon the fifth, p,. would be impossible, because the report expressly comprises more ' than the fifth action was bi-onght for. And to call upon the referees, and by their assistance divide the sum, would be an illegal stretch of power-, which was not to be appz-ehended from the court. Nor, as to the point of consolidation, has the court authority to do more thazi grant imparlances in some of the actions, to induce the party to consent that the trial of one shall decide the rest, which would be no relief in the present case.
   On the 15th of November, the President delivered the opinion of the cozzrt as follows :

Shippen, President.

The justice and faiz-ness of the transaction, on the part of the plaintiff, is so obvious ; and the consent of the parties to consolidate the actions, is so naturally implied from the whole of the proceedings, that my brethren think the report ought to be confirmed.

For myself, I doubt the legality of it, because I do not see how it is possible to-enter judgment upon the report, so as to avoid error-. The consolidation of actions is intended to save expense, and might have been oz-dered by the court on motion ; but this agreement of the parties does not appear to me to amount to a consolidation, there being five several rules of reference in the five several actions ; and though, indeed, the referees have undertaken to consolidate them, I much doubt their authority so to do. Instead of finding a gross sum due on all the notes, they might have found what was due on each note, and have reported the several sums on the separate rules of reference. However, as my brethren think the report ought to stand, let it be confirmed, and the plaintiff may make up the record as he thinks safest,

Report confirmed. 
      
      
         Fleeson and William Rush, Justices.
     
      
       Merrihew v. Taylor, 1 Bro. App’x lxviii.; Rumsey v. Wynkoop, 1 Yeates 5; Prior v. Kelly, 4 Id. 128.
     
      
       In Groff v. Musser, 3 S. & R. 264, C. J. Tilghman, speaking of Brown v. Scott, said, “President Shippen thought that he arbitrators had no right to consolidate; and although he was overruled by his associates (who were not lawyers), yet I have always understood that his opinion has been held for law.” The case of Hart v. James, in the supreme court, post, p. 355, confirms the opinion of President Shippen; and in Groff v. Musser, the supreme court reversed a judgment of the common pleas, on the ground that arbitrators, under the act of 1810, had no right to consolidate, without the consent of the defendant. “ Whether the common pleas had power to direct an amendment,” said C. J. Tilghman, “is not so clear.” Judge Duncan was decidedly of opinion that they could not.
     