Page:United States Reports, Volume 1.djvu/367

356 1788.  1. That one report is made in two actions. severally referred.

2. That the Referees filed a supplementary report without the knowledge of the Defendant, at the instance of the Plaintiffs.

3. That the first report is on condition, and therefore the Referees have mistaken a plain point of law; the second report being made after their authority had expired.

4. That the promissory notes for which the actions were brought, are not in the Plaintiffs hands, but assigned for a valuable consideration, and, therefore, there is no legal cause of action.

The exception being oppofed by Fisher for the Plaintiffs, and supported by Ingersoll and Dallas for the Defendant, THE COURT seemed clearly of opinion, that the first report could not be maintained ; that the supplementary report was irregular ; and that the rule rule of reference to report to next term, did not authorise the issuing execution upon the report into office during the vacation (particularly without notice to the Defendant)  although a term had intervened between the entering of the rule, and the appointment of the Referees.

No opinion was given on the other points, but the execution and report were, for the above reasons, set aside, and the actions, by consent, referred de novo. 

ENRY STARRET, while attending the Court as a suitor, was taken by a Ca. Sa.  and Chambers moved that he might be discharged from the arrest, citing 4 Bac. 421. 3 Bl. C. 289. 2 Stra. 1094. 1 Barn. 17.

Yeates and C. Smith opposed the motion, and contended, that there was a distinction between an arrest on mesne and on judicial, process; for, though, in the former case, the Court would discharge a sutor, witness,&c. from an arrest made during an attendance upon them, yet, in the latter, they would not, becaufe the party would afterwards be remediless. Wood's lest. 503. 600. 4. ''Com. Dig.'' 475. 11 Mod. 234. 252. There is, likewise, another reason: the Capias on mesne process might be taken out merely on a suggestion ; but on judicial process, the debt is certain, and fixed by the judgment of the Court.

Chambers and Hartley, in reply. The protection, of suitors &c. is established to promote an equal administration of justice, and to prevent the oppression of a rich and powerful man, over a poor one who is soliciting justice. There is no express authority that extends the doctrine to this case; but in 4 Cum. 575. ''tit. Priv.'' it is laid down, that an execution shall not be discharge, he shall himself be committed. The books cited in Comyms, Crompton and Wood's Inst. are of little authority. M‘KEAN