Page:United States Reports, Volume 1.djvu/431

420 

1789.

Whether this agreement was made in perfon, or by a Broker, mutually employed, it is equally binding on the parties ; and, under the agreement,all the underwriters were fully entitled to interfere upon the former trial, and to crofs-examine the witneffes then produced. Although, therefore, we fhould not have allowed the fpecial verdict to be read without full proof of the agreement; yet, on receiving that fatisfaction, we think it would be unfair to fupprefs it ; and, for the future, we defire, that all fuch agreements may be entered on the records of the Court.

The admiffion of this evidence, however, cannot be conclufive ; as it is manifeft, that teftimony has been given on the prefent occafion, different from what was given on the former ; and, confequently, a very different verdict may with great juftice and propriety take place. 

HIS action being referred by confent, the following report was made:–“ The Referrees upon full confideration of all

“ the circumftances, are doubtful as to the law upon one point,

“ and have agreed to make their award fpecial, fubject to the opi-

"nion of the Court. <

“ The cafe fubmitted to them appeared to be as follow:– On

“ the 16th of March, 1773, Robert Callender was indebted to James

“ Hamilton in the fum of Ł2120, fterling, for which he gave to

“the faid James Hamilton, a bond and warrant of attorney, and a

“ mortgage upon an eftate in the county of Cumberland. It ap-

“ peared hat intereft was paid thereon to March 1776, and that

“ receipts for fuch payments are indorfed on the mortgage.

“ Robert Callender died, and, fometime after, his executors fold

“ part of the mortgaged promiffes to Mark Bird, who undertook to

“ pay off the principal fum, together with the intereft that fhould

“ become due after the date of his purchafe.

“ It is agreed that James Hamilton remitted one year's intereft

“ to the executors of Callender  ; and that Mark Bird  gave his bond

“ bearing date the 3d of May, 1783, to James Hamilton for  Ł651

“ fterling, being the whole of the intereft then due on the mort-

“gage, exclufive of the year's intereft remitted. No difcharged

“ was given upon the mortgage either for the year's intereft re

“ mitted, or for the amount of the bond: nor does it appear, that

“ the executors of Callender had any notice of the bond, or that

“ they had been applied to for the payment of any intereft after the

“ fale to Bird.

“ Bird hasnever paid any part of the principal, or intereft ;

“ and, in the end of the year 1784, a Scire Facias iffued on the

“ mortgage ; but the fale was poftponed from time to time ; and,

“ in the meantime, Bird became a bankrupt. On the 19th of May,

“ 1787, however, the eftate held by Bird was fold under the Scire “ Facias