Parker's executor v. Parker's administrator, 5 N.C. 295, 1 Mur. 295 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 295, 1 Mur. 295

Parker’s executor. v. Parker’s administrator.

1- From Halifax.

A. suit pending in Chaftcery is “by consent of parties” referred to five persons, whose report is to be binding between the parties. The referees mate a report, ¿uid exceptions are filed to it, .charging errors and mistakes in liquidating the accounts. Thc 'suit then abates by the death of the complainant. An action on the case was brought to recover the sum reported by the referees to be due. The record-of this, suit, and the proceeding's therein, are not evidence of the debt. The reference being matter of record, the award is not binding, until confirmed by the Court.

In 1799, Airland Parker filed bis bill in Chancery, in Sussex County Court, in Virginia, against Richard Parker, executor of the last will of Frederick Parker, deceased, praying for a discovery and an account, &c. To this bill Richard Parker put in his answer, and at September term 1801, the following entry was made in the cause : “ By consent of parties, this cause is referred to William Hines, Robert Goodwyn, Benjamin Tate, John Chappell and Jatf,es C. Baily, or any three, whose report to be binding between the parties.” At March term 1802, the referees made their report, and therein stated that they found the Complainant Airland Parker, ivas indebted to the Defendant Richard Parker, execur tor, &c. in the sum of £135,18s. 9d. Virginia currency j which sum, except £28 thereof, they were of opinion should bear interest from 6th October, 1795, till payment should be made. The cause was continued at Complainant’s costs, and at June term following, the Complainant filed several exceptions to the report of the referees, charging them with errors and mistakes, in liquidating and settling the accounts of Richard Parker, executor as aforesaid. The cause was then, continued, and at each successive term was continued without any further proceedings being had therein, until June term 1803., when it abated by the death of the Complainant. .' '

This was an actio! on the case brought on the ahove award. The only evidence offered by the Plaintiff, was a COpy 0f the record from the Court of Chancery, for Sussex County in Virginia, setting forth the proceedings in that Court, as above stated. The Jury found a verdict for the Plaintiff, subject to the opinion of the Court, upon the question, “ whether the action would lie upon the award l” The case being sent to this Court,

Haii, Judge,

observed, that although he entertained much doubt upon the question, he inclined to the opinion that judgment should be' entered for the Plaintiff •, that if the reference in this case had been made as references generally are made, to clerks and masters, or if it had been the understanding of the parties, and the practice of the Court in which this reference was made, that reports made by referees appointed as in this case, should be subject to the exceptions of either party, as reports made by clerks and masters are, it was clear that judgment should be entered for the Defendant. We can however only judge from the record itself. It is therein stated that, (e by consent of parties, the case was referred to William Hines and others, whose report was to be binding between the parties.” It seemed very much to resemble common cases of submissions and awards ; the Defendant was not precluded on the trial from availing himself of any valid objection against the report or award, that was in his power to be made, and which it would be proper to make to awards in ordinary cases ; but he seemed to have waived this privilege, and to rest his defence on the ground that it was only an interlocutory decree, and not such a submission and award as would support this action. But by ■

Locke, Lowrie, HekbersoN, and Wright, Judges.

—The order of reference appears to us to have been made by the Court $ the report or award is therefore no evidence of a debt, or obligatory upon the parties, until confirmed by the Court. Judgment for the Defendant.