
    Daniel Whitney, Administrator, &c. Plaintiff in Error, versus William Cook.
    After a report of referees appointed by a rule entered into before a justice of the peace, pursuant to the statute of 1786, c. 21., has been made at the next term of the Court of Common Pleas after it was agreed upon, and is recommitted, the parties to the rule still have day in Court, and the amended report may be well made at a succeeding term, during which, the referees shall have agreed upon it.
    Such a rule may be made between A., and the administrator of B. and C,, who were partners in trade, and of whom C. survived, submitting all demands between A. and the deceased partners of either of them.
    If, in such case, the referees award that a sum of money is due from the estate of C., the surviving partner, and that the administrator shall pay the costs of reference, these costs are a charge on the partnership fund [as it must be presumed that they were awarded on account of the partnership debt found due].
    The writ of error, in this case, was brought to reverse a judgment of the Court of Common Pleas for this county, rendered upon the report of referees appointed pursuant to the statute of 1786, c. 21.
    It appears from the record, that the defendant in error, having demands heretofore against Daniel Whitney and Amos Whitney, who were partners in trade, and are since deceased, of whom Amos was the survivor, and on whose estates" the plaintiff in error had taken separate administrations, the parties, by a rule entered into before a justice, submitted all demands which the defendant in error had against the deceased partners or either of them, and all demands which the deceased partners or either of them had against the * defendant in error, to certain referees, who made [*140] a report to the Common Pleas at July term, 1807, holden next after the report had been agreed on. The Court would not receive the report, but recommitted the rule. The referees, afterwards, during the January term of the Common Pleas, in 1808, viz. on the 23d of February, agreed on another report, which was made to the Court during the same term. In this report, they award that there is due from the estate of the said Amos Whitney, surviving partner as aforesaid, in the hands of the said administrator, 1,002 dollars, with costs of Court, to be taxed in due form of law, the said Whitney to pay the costs of reference, and that the said Cook recover the same accordingly in full of all the demands submitted. On this report, judgment was rendered, to reverse which this writ of error was brought.
    The errors assigned were — 1. That demands were submitted in favor of said Cook against said Whitney, as administrator on two several estates, and all demands in favor of said Whitney, as administrator on two several estates, against said Cook, in one rule or process. — 2. That the award was only with respect to one of said estates, making no mention of the other, nor what additions or deductions were made an account of the other. — 3. That it is not determined out of which of said estates said Whitney should pay the costs of reference. — 4. That the award was not made to the next Court of Common Pleas, but to one commenced before the award was made.
    
      Bigelow, for the plaintiff in error
    contended that there ought to have been two rules of submission; but his principal reliance was on the fourth error assigned, for which he cited the case of Durell vs. Merrill, in this Court , and particularly the reasons urged by Sedgwick, J., in delivering his opinion, why the report of * referees in a case of this sort should be made to the [*141 ] Court begun and holden next after it is agreed upon.
    
      Selfridge, for the defendant in error
    agreed that this would have been a fatal error, if the report had been originally made to a Court sitting at the time that the report had been agreed upon. But in this case, the report was first made at the term of the Common Pleas, holden in July, 1807, and from that time the Court had by the statute cognizance thereof in the same manner as if the same had been made by referees appointed by a rule of the same Court. At that term, the parties appeared, and the rule was recommitted. The action was thence continued until the final report was made. The parties had day in Court, and were not liable to be taken by surprise, if they paid due attention.
    
      Bigdow
    
    in reply. When the rule was recommitted, it was in the hands of the referees as a new rule, and their second report was a new and distinct report, and must be made pursuant to the requisitions of the statute, or a valid judgment could not be rendered upon it.
    
      
       1 Mass. Rep. 411.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

There are two principal errors assigned in this case: — That the report was not made to the next Court of Common Pleas, pursuant to the statute; and that it was not competent for the parties to submit these several demands, by one rule before a justice.

If the first report had been made to the Court at the same term during which it had been agreed upon, and the judgment had been •then entered, it must have been reversed.

This process is considered by the statute as a species of action, and is so called. But it is not pending in Court, until the report be agreed on and made to the Court. That the parties may know when to appear, the statute provides, that the report shall be made to the Court of Common Pleas, next to be holden after [ * 142 ] the report * is agreed upon. If it be not made to the next Court, neither party is chargeable with loches for not appearing, and the Court can have no jurisdiction. So, if the report be originally made after the next term, the Court can have no jurisdiction, as no negligence can be imputed to either party for not afterwards appearing, if no report had been made at the next term.

When the Court have once regular jurisdiction of this species of action, the statute provides that they shall have cognizance of it in the same way and manner, and the same doings shall be had thereon, as though the report had been made under a rule of the same Court. In this last case, the Court may recommit the rule, and receive the same report, or an amended, or new one, at the same or at any future term; the parties being always in Court, unless they depart through their own default.

Under this provision it is contended by the defendant in error, that although the original report must have been made at the Court holden next after it was agreed on, to give the Court jurisdiction, yet when the Court once had regular jurisdiction, it may proceed, as in cases ol their own rules, to receive a new report on recommitment at the same or any other term.

And we are of opinion that in this there is no error; for the Court once having jurisdiction, this jurisdiction shall continue until judgment be rendered upon some report made under the rule, or that all proceedings under it are disallowed. The difference between the cases of an original report, and of a new or amended report, arises from the provisions of the statute. After a report is regularly made, and the rule recommitted, the parties have day in Court until a final decision.

There seems to be no other construction, unless it could reasonably be decided that the Court have no power to recommit, and that, if the original report is not received, all proceedings under this process are at * an end. A decision of this [ * 143 ] kind would be against contemporaneous practice under this statute, and against public convenience. For it often happens that reports under this statute are rejected for some informality, and on a recommitment the form is amended, and the report is returned at the same term.

If the referees had power, upon a rejection of the report, again to make a new report without recommitment at any future term af ter the rejection, the matters referred might be kept in suspense at the pleasure of the referees. But if an order of recommitment is necessary, then if the referees unreasonably delay to proceed, the order may be discharged, and their powers determined.

This delay of proceeding may exist before an original report be made: to guard against which, I am inclined to believe that the statute, the object of which was to provide for justice speedily and cheaply, intended that the report should be made at the Court holden next after the rule should be entered into. The practice, however, has been otherwise; and if this practice be correct, we ought not unnecessarily to multiply opportunities for unreasonable delay.

As to the second error, it is true that the rule cannot embrace demands between different parties. But in this case the parties were the same in all the demands, although the plaintiff in error acted in different rights; all the demands submitted are demands between the same parties, and a rule of this kind is provided by the statute. And it is convenient that rules of this kind may be made.

In the present case, the demands of the defendant in error annexed to the rule were against the partnership, and which he could substantiate against the administrator of the surviving partner. But each partner might have made payments or advances on the partnership account, as well as on his own ; to meet which the defendant * in error might have several demands. It [ * 144 ] was, therefore, most convenient that the same amicable judicature should adjust all these demands; and we are of opinion that the parties to the rule might give them authority for those pur poses by the submission. It appears by the report that these separate demands were not supported on either side, or were balanced; for a report is made for a sum due from the surviving partner, which, it is stated, is in full of all the matters submitted.

Costs are also awarded against the administrator; and it is objected, that the administrator has three different funds in his hands, and the referees have not reported on which fund the costs must be a charge. Clearly, they must follow the damages awarded, which are expressly reported to be a charge on the partnership fund. For we must presume that the costs are awarded on account of the partnership debt found to be due.

The judgment must be affirmed, with costs for the defendant in error.  