Page:United States Reports, Volume 1.djvu/441

430 

1789.

deeds or other writings, which are not the immediate foundation of the suit, but only leading to it, may be read.

We are all, therefore, of opinion, that a new trial ought not to be granted.

Judgment for the Plaintiff. 

HIS cause had been referred, and the Referees, having examined the evidence in prefence of both parties, agreed upon their report ; but about an hour before it was delivered into Court (though it was signed the preceding day) J. B. McKean, on behalf of the Defendant, had obtained a rule to shew caufe, why the rule of reference should not be struck off.

There was no charge of irregularity of partiality againft the Referees ; and, after argument by Lewis for the Plaintiffs, and Ingerʃol and J.B. McKean for the Defendant, the rule to shew caufe was discharged.

And McKEAN, Chieƒ Juʃtice, observed, that the motion was much too late to annul the reference, when the Referees had investigated the whole transaction, had agreed upon their report, and were clear from any imputation of misconduct,or any precipitancy in refusing to hear the testimony offered by either party. 

HIS action was tried at July term 1788, when, by consent, a verdict was given for the Plaintiff, for the fum of Ł687.5. with fix pence costs, subject to the opinion of the Court on the following facts:–

“The Plaintiff executed and acknowledged a mortgage on the 3d of September 1782, which was recorded on the 30th of October, 1783. The mortgaged premiffes being fold by the Defendant, then Sheriff of the city and county of Philadelphia, the ballance, after deducting the fum for which the land had been fold, was paid to the mortgagee. Afterwards, to wit, on the 16th of July, 1785, the Plaintiff made an affignment of all his property for the ufe of all his creditors, and the affignees brig this action, in his name, to recover the money thus paid over to the mortgagee.

“ If the Court fhall be of opinion with the Defendant on the foregoing cafe, then judgment fhall be entered for him ; otherwife judgment to ftand for the Plaintiff for the fum fpecified in the verdict.” The