COMMON PLEAS, Philadelphia
County:
KUNCKLE verʃus KUNCKLE.
E
XCEPTIONS were filed to the report of Referees in this caufe; which were argued on the 20th of November, by Wilʃon and Tedd, for the Defendant ; and Sergeant for the Plaintiff.
The president now ftated the material circumftances; and delivered the opinion of the Court as follows:
SHIPPEN, Preʃident.– This is a motion to fet afide the report of Referees, on two grounds: 1ft, For the mifbehaviour of the two notice to the third Referee, who did not fign it. The evidence by no means fupports this objection, as it appears that the two Referees had agreed upon the fubftance of their report in the prefence of the third Referee, who declared his difagreement, and faid the others could make the report without him.
The 2d objection is to the report itfelf, as awarding money to be paid by the Defendant on one fide, and making conveyances of land and a lot of ground, and taking up a bond and mortgage in the Loan Office, by the Plaintiff, on the other fide. The ground of this objection is, that the Court cannot do compleat juftice or both fides, as an execution may iffue for the money againft the Defendant, and the Plaintiff cannot be compelled by the Court to perform his part; at leaft, that the remedies are not the fame on both fides, namely by execution.
The determination of caufes by Referees under a rule of Court, has been found a practice of fuch general convenience and utility, for this fpeedy and equitable decifion of controverfies depending in the Courts of law, that the Judges have always encouraged and fupported it ; more efpecially as in this mode of trial, the Referees are not tied down by the ftrict rules of law, but may decide as the equity of the cafe may appear, and in fome fort fupply our want of a Court of Chancery. As the Referees are Judges of the parties own chufing, we never enter into the meris of the caufes they decide, nor, in general, fet afide their reports but for mifbehaviour, or where the objections arife on the face of the proceedings.
Where a report of Referees awards money to be paid on one fide, and certain other things to be done on the other, it the Court cannot inforce both, they will certainly inforce neither. In the prefent cafe, the queftion will be, whether they can oblige the Plaintiff to perform his part of the award? They certainly cannot do it by execution; but if they can do it by attachment, the remedies are mutual, though not by the fame kind of procefs. That an attachment will lie for a contempt in not performing an award of Referees appears clearly to have been agreeable to the common law prior to the ftatute of 9 and 10 W. 3. which is declared by the Judges, and appears from a perufal of the act itfelf, to have been made only to put agreements to refer cafes never inftituted in Court, upon the fame looting with caufes already in Court, and to be declaratory of what the law was before in the latter cafes.
I have infpected the record in the cafe of Stuart v. Ralʃton in the Supreme Court, and judgment in that cafe feems decifive on the prefent queftion. There the award was that money fhould be paid by the Defendant to the Plaintiff, and that the Plaintiff fhould, at a future time, when certain proceeds of pot all fhould came to his hands, and when a certain debt fhould be received, pay the amount of one half of them to the Defendant: The objection with regard of the time of the Plaintiff's performing his part of the award was much ftronger than in the prefent cafe; which requires that it fhall be done within five days after payment of the money.
In all cafes of this kind the Court will exercife their equitable powers, in fuch a manner, as not to fuffer either party to elude the performance of their part of the award. If, her inftance, execution fhould be taken out by the Plaintiff againft the Defendant, and any well grounded fufpicions fhould appear, that the Plaintiff was contriving by flight, or otherwife, to avoid complying with his part, the Court would order the money levied to be lodged in Court till the Plaintiff fhould comply ; or might impofe fuch other terms upon him as fhould appear neceffary to oblige a compliance.
As to the objection that part of the award is impofible to be complied with, the Defendant himfelf having taken up the Lean Office Security, which was directed by the Referees to be done by the Plaintiff; it is evident from the time of its being done, that it was with a view of making the prefent objection, it being done two days
1788.
after the Referees has agreed upon their report, though before the actual figning of it. This, however, is not legal objection, becaufe if any part of an award be impoffible to be performed, it appears by a cafe in Salk. 83. that the Court will refufe an attachment for that part. Yet, as the Plaintiff in the prefent cafe would receive the benefit of what the Defendant has done in taking up the fecurity, we fhould certainly think is equitable that he fhould abate fo much out of the money to be recovered, and upon application would oblige him to do it ; and, in general, fee that the report was carried into execution in all its parts, agreeably to that intent of the Referees, and the juftice of the cafe.
We therefore confirm the report.