
    *Arnolds v. Jacksons.
    Decided, Feb. 6, 1818.
    i. Order o!i Reference — Setting Aside Notice. — If, after great uelay in executing- an order of reference made pendente lite, the Court set it aside, on motion of one of the parties, without any previous notice or rule to shew cause; but it do not appear, by a bill of exceptions, or otherwise, that any step had been taken to carry such order oi reference into eifect; after which, a fair trial is had, and judgment entered accordingly; such judgment ought to be affirmed.
    
      2. Joint Bond — Debt—Evidence.—In debt on a joint obligation, to winch the defendants plead payment, they cannot give in evidence a Covenant between one of the plaintiffs and one of the defendants, with parol testimony that the plaintiffs settled with that defendant, who was the principal debtor, and in such settlement kept their accounts separately, and that each was entitled to one moiety of the debt; that the defendants gave notice that a discount would be claimed by them on account of said covenants; and that the plaintiff who was party to the covenant, said that the same was not settled, and that he intended to allow a credit for it.
    James and George Arnolds brought an action of debt, in the County Court of Harrison, on a joint single bill, dated April 19th 1796, against Edward and John Jack-sons; to which they pleaded payment. The suit was referred, by consent of parties, on the 24th of August 1809, to William Haymond, whose award was to be the Judgment of the Court. It was after-wards continued from term to term, (no award appearing to have been made,) until November 1811, when, on motion of the plaintiffs, the order of . reference was set aside. In March following, the defendants moved the Court to set aside the last order, “because the said order of reference was set aside without notice or a rule;” which motion was over ruled, and the cause continued. A trial was had in, November 1812, when the defendants, for the purpose of claiming a discount, offered in evidence to the Jury a Covenant under seal, dated July 24th, 1795, concerning a land warrant, between the defendant Edward Jackson and the plaintiff George Arnold only; “the testimony of witnesses, who proved that the plaintiffs settled with defendant Edward Jackson, who was the principal debtor in this cause, and in such settlement kept their accounts separately, and that each was entitled to one moie.ty of the debt; with evidence also that, prior to the last term, the defendants by their Counsel gave notice to the plaintiffs that the said Covenant would be relied upon as a discount; and that the plaintiff George said that the same was not settled, and that he would or intended to allow a credit of $600 for it, being the treasury price of the warrant:” which evidence was objected to by .the plaintiffs, and rejected by the Court, as inadmissible; whereupon, the defendants filed a bill of exceptions. *A verdict and Judgment being rendered for the plaintiffs, a Writ of Supeirsedeas was granted by a Judge of the General Court, and the judgment reversed, on the ground that “the County Court erred in setting aside the rule of reference, without notice to the defendants and good cause shewn.” Judgment was therefore entered, that the order setting aside the said rule of reference, be set aside, together with all the subsequent proceedings, and the cause remanded, for farther proceedings to be had thereon.
    To this Judgment, the plaintiffs obtained a Supersedeas from this Court; 1st, because the evidence offered by the defendants, as stated in their bill of exceptions, was properly rejected by the County Court; 2d, because the County Court did right in
    setting aside the order of reference; as the delay to execute it was a sufficient reason, and there was nothing stated in the record to shew that the Court erred; for no bill of exceptions was taken to their opinion in that respect; and 3d, because the motion to the Court, at the subsequent term, to set aside the rescinding order, did not shew that the referee had acted, or offered to act, or that the defendants had applied to him to act, or taken any steps to procure a decision of the cause: — besides, no bill of exceptions . was taken to the Court’s opinion over ruling that motion, so as to shew that they erred in so doing; and, as nothing was shewn to the contrary, it was to be presumed that they-acted rightly.
    
      
       See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   By this Court, the Judgment of the Superior Court was reversed, and that of the County Court affirmed.  