1785.
2d. For that the report contains no directions that these notes should be delivered up ; and as defendant cannot apply to a Court of Chancery, as he might in England, for an injunction, they might still be circulated, and in the hands of a bona fide indorsee, so that the defendant may be compelled to pay the money over again ; consequently the report is neither mutual, nor final, Cro. J. 315. Cro. C. 112. 1 B. M. 304. 2 B. M. 1224. Doug. 362. 5. Bac. 289. 313.
3d. The reports of referrees under the act of Assembly are acknowledged to be different from awards at common law ; but in fact there is little difference between them and verdicts. If, therefore, there actions had been tried by a jury, and a verdict given similar to this report, no judgment could be given on it. Co Litt. 227. Hob. 49. Stra.1024. For on what action can the Court award execution, or how can they apportion the sums?
Wilson, Sergeant and Sitgreaves, for the plaintiff, were desired by the Court to confine themselves to the last objection, as the first was not supported by testimony ; and with respect to the second, it would overset too many reports, were the objections of want of mutuality and not being final, upon such grounds, to defeat the report.
Taking up, therefore, the third objection, they argued that the referrees noting charged with partiality or misconduct, the objections to the form of the report, must find a cold reception with the Court. If judgment cannot be entered upon the record as it stands, the Court may interrogate the referrees and divide the fum ; or they may allow the plaintiff to sue out execution in one action and release the others, or by their own authority, the Court may interpose, and consolidate the actions. 2 Stra. 420. But, in fact, it was contended, that the actions were already consolidated by the consent of the parties in the filed agreement ; which is surely as much a part of the record, as a verdict, or a report ; and by the submission of all matters in variance, the cause of action in each of the actions, is submitted in every one of them. Hob. 54. 12 M. 234. Stra. 514. 3. Bac. Abr. 288.
Ingersol in reply. Awards at common law differ so widely from reports under our act of Assembly, that scarce any authority upon the subject of the first, is applicable to the second. In the first case, terms may be imposed before the Court will grant attachments ; but here the report is equivalent to a verdict, and the sole point now, is, whether, if it were truly a verdict, judgment could be entered upon it. It was not discovered ‘till late in the argument that the parties themselves had consolidaated the actions ;but upon the examination of the agreement nothing will appear that shews that intention, or produces that effect. It enumerates all the four actions, says that rules ( in the plural) shall be entered in these several actions ; and then there is a fifth action entered in this very agreement, which it is subsequently and separately agreed to refer. At least, therefore, this last action is not consolidated.
