Page:United States Reports, Volume 1.djvu/158

Rh 

1785.

To disfcontinue, or releafs four, and fign Judgment upon the fifth would be impoffible, becaufe the report exprefsly comprifes more than the fifth action was brought for. And to call upon too referrees, and by their affiftance divide the fum, would be an illegal ftretch of power, which was not to be apprehended from the court. Nor, as to the point of confolidation, has the court authority to do more than grant imparlances in fome of the actions, to induce the party to confent that the trial of one fhall decide the reft, which would be no relief in the prefent cafe.

On the 15th of November the PRESIDENT delivered the opinion of the Court as follows.

SHIPPEN, PRESIDENT. The juftice and faimefs of the tranfaction, on the part of the plaintiff, is fo obvious ; and the confent of the parties to confolidate the actions, is fo nautrally implied from the whole of the proceedings, that may brothren think the report ought to be confirmed.

For myfelf, I doubt the legality of it,, becaufe I do not fee how it is poffible to enter judgment upon the report fo as to avoid error. The confolidation of actions is intended to face expence, and might have been ordered by the Court on motion ; but this agreement of the parties does not appear to me to amount to a confolidation, there being five feveral rules of reference in the five feveral actions ; and though, indeed, the referrees have undertaken to confolidate them, I much doubt their authority fo to do. Inftead of finding a grofs from due on all the notes, they might found what was due on each note, and have reported the feveral fums on the feparate rules of referrence. However, as my brethren think the report ought to ftand, let it be confirmed, and the plaintiff may make up the record as he thinks fafeft.

Report confirmed. 

Cafe was made in this caufe for the opinion of the Court, ftating, that the defendant bought a bill of exchange drawn by Benjamin Harriʃon & Co. upon a houfe in France,  which was prefented to the drawee in February  1784, and protuiftion for non acceptance.  Before it was prefented, however, the drawee had become infolvent, and an arrêt was iffued by the French government, prohibiting the inftitution of fuits againft him for a certain time. When the bill became due ( the arrêt ftill continuing in force) it was again prefented, and, on the 5th of June 1784, proteft, and without any fuit or compulfion of law, the plaintiff, who was one of the partners of the company that drew the bill, repaid the defendant the principal, intereft, and charges, with 20 perent damages: But, afterwards, conceiving that he had paid the 20 per cent damages in his own wrong, he brought his action to recover back the amount. Rh Fleeʃon and William Re Juftice