Newcomb v. Wood

ERROR to the Circuit Court of the United States for the Northern District of Ohio.

Nov. 1, 1872, John Wood, assignee in bankruptcy of Philip E. Robertson, filed his petition in the District Court of the United States for the Northern District of Ohio, against Stephen L. Newcomb, to recover the value of certain goods sold to the defendant by Robertson, May 6, 1872, within four months before the latter filed his petition in bankruptcy. An issue of fact having been made by the pleadings, the case was, Nov. 18, 1873, by consent of the parties, referred by the court to Henry C. Hedges, Joseph C. Devin, and A. K. Dunn, as referees, with power to hear and determine all questions of law and fact, and report thereon to the court. Neither of the referees was sworn or affirmed, although the customary oath or affirmation was not expressly waived or insisted upon. Both parties were represented by counsel. Jan. 10, 1874, a report signed by Devin and Hedges was duly filed, awarding the plaintiff $6,356 and costs. Newcomb filed exceptions to the report, on the ground that the referees were not sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein, according to the best of their understanding, as is required by law. The exceptions were overruled, and the report was confirmed by the court. A new trial having been refused, a judgment was rendered against him, which was affirmed by the Circuit Court. He then sued out this writ, and assigns the following errors:--

That the District Court erred,--

1. In appointing referees in said cause.

2. In overruling the exceptions to their report.

3. In rendering judgment upon said report, it having only been signed by two of the persons named as referees, none of whom were sworn.

4. In refusing to grant a second trial of said action.

Mr. Jeremiah M. Wilson for the plaintiff in error.

Mr. Walter H. Smith, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.