Page:United States Reports, Volume 1.djvu/141

130 

1785.

no exceptions to the report had been filed in writing, which they contended ought to have been done, within four days from the entry of the judgment ''niʃe. Lewis'' admitted, that where the exceptions arofe from facts, fuch as mifbehaviour of the referrees want of notice &c. it was neceffary that they fhould be in writing ; but infifted, that where the objections arofe from the face of the report, as in the prefent cafe, and depended upon conftruction of law, there was no fuch neceffity. And accordingly permitted him to proceed.

He took three exceptions:

1ft. The act of Affembly giving references by rule of Court in actions depending, puts the report of referrees on the fame footing precifely with the verdict of a jury. Now, in Trovera a verdict can never be for reftoration of the fpecific chattles but for damages only, and fuch a verdict would be error : therefore he inferred the fame law in the cafe of a report.

2dly The report, on the face of it, fhews the action of the plaintiff to be legal—for Pawnee has a right to detain his pledge, until payment of the fum for which the pledge was given ; and until fuch payment, Pawner can have no action to recover the thing pawned, or damages. Now the report finds Ł.3. due from the plaintiff to the defendant, which at once defeats his right of action, and fhews that judgment fhould be for the defendant.

3dly A report fhould be fuch a as that the Court may give judgment and award execution thereon. Judgment cannot be for both plaintiff and defend at on one iffue ; and this report gives fomething to each—It is a report on both fides—Judgment and execution can be only for one.

inclined ftrongly to be of opinion with Lewis, particularly on the firft point ; but no judgment was given, that the parties might if they would accommodate the matter by a new reference : and, accordingly, it was afterwards referred dnero. 

APIAS to June, 1784. The Bail bond fued to September, 1784, judgment was figned on the bill bond fuit, niʃe fpecial bail filed in 30days. Default was made in filling fpecial bail, and a ƒi: ƒa: iffued to June 1, 85. The Mr. Lewis mentioned, that on a former argument of this caufe, this exception was combated by an obverfation, that even if judgment could not be entered on the report according to the common forms, yet the reference being made under the eye of the Court, they could grant an attachment to compel compliance with the report, and the cafe of Ralʃon vs Stewart was mentioned, where the Supreme Court it was faid, eftablifhed this point. Time had been given to the plaintiff's Counfel to fearch for ounces of this cafe ; and no note being now produced, Mr. Lewis that although he was concerned in that caufe with the gentleman who cite it (Mr. Sergeant) yet he could not remember that any fuch point had been adjudged, and conceded that the act of Affembly gave no fuch authority, and that no inftance of fuch an attachment had ever been known in our practice.