Page:United States Reports, Volume 1.djvu/156

Rh 1785.  modes prescribed in England. This act expressly confines the remedy of the mortgages to the recovery of the principal and interest  due on the mortgage ; and the proceedings under the law shew the uniform construction of it. The Scire Facias is to show cause why the land should not be fold for payment of the principal and interest due on the mortgage :  When judgment is obtained, the levari ƒacias is to levy the principal and interest money only.  There is no penalty, no judgment for a penalty, and we might as well refuse to stay procedings in a suit on a single bill,  till a subsequent debt was discharged,  is in this cafe of a mortgage. Upon the execution in both cafes, not more can be levied than the principal and interest.

Rule made absolute. 

ULE to shew cuase why the report of referrees should not be set aside. The facts were these :— Four actions had been brought upon four promisory 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 preceeding 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 wee heard before the referrees, 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 was not apportioned. The referrees, 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. Conformably to this advice, the following report was made. ‘‘ We the referrees 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 £  1301, 3, 11, and that the fame ought ‘‘ to be paid accordingly.’’  All the referrees signed the report, and two of them attended in Court, and give 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 coure of the argument, that the referrees that acted with partiality, injustice, &c.

The motion was supported by Ingersol, Coulthurst and Heatly, for the defendants, and they contended, that the report was neither certain, mutual, nor final.

1st. For that the report says £ 1301.3. 11, is to be said ‘‘ accordingly’’— accordingly to what ? of payment was a  part of the dispute ; and this was left uncertain. Rh