Talcott v. M'Kibben 2 Mart. (o.s.) 298

TALCOTT vs. M'KIBBEN & AL.

if a fasci-left to persons chosen by the parties, whose report is to he the judgment, &c. they need not be sworn and unless improper conduct be shewn, judgment will be entered, although they report not the grounds of their opinion nor state any account.

This case had been left, by consent, under a rule of court, to five merchants, agreed upon by the counsel, whose report was to be made the judgment of the court. They reported a round sum of $ 2,941 80 in favor of the plaintiff, without stating any account, or specifying any particulars. Upon a rule obtained upon the defendants, to shew cause, why the report of the referees should not be homologated, and become the judgment of the court, exceptions were filed to the report; and it was now argued upon the exceptions. On the part of the plaintiff, a witness was called, to prove that it was the usage of merchants to charge interest upon advances made.

*299Duncan, for defendants.

This report is except~onab1e fri a variety of respects; and is at variance with the general laws of the country, as well as the particular acts of the le~is1ature

I Ir does not appear~ that the i~efèrees~ were duly qualified.

2. TH~EY have presented no stated account between the parties.

.3, ThEY have allowed interest upon an open account.

I. By the 20th section of the act, regulating the practice of the superior court in civil causes, the court, in all cases which shall appear to require the investigation of long and intricate aceotmts~ is authorised to refer the statement of them to three proper persons, to be chosen for that purpose by the court, who shall examine the accounts, and the vouchers and other testimony in support of them, and state such accounts in their report to the court; which referees, before they enter upon such reference, shall take before some judge of the court, or some justice of the peace, an oath, thc~ form of which is particularly prescribed in the act~ But in the present case, how does it appear, that~ the referees have taken the prescribed oath? Before what judge or justice, has it been done? Why has it not been annexed to the repqrt, or at least proven before to the court? Without this, *300they were not qualified to act as referees, and their report is as invalid as the verdict of an un-sworn jury.

2. The act also requires a stated account, which requisition has been equally neglected. Indeed, the duty of referees is confined to thus stating an account, upon which the court will then act; and for this purpose only are they employed. They have, therefore, failed in the only objcct committed to their charge, and the only duty they had to perform. As it is, we are left entirety in the dark with regard to the grounds upon which they went, or the principles by which they were governed. When we ask for statements and facts, we are presented only with a round sum total in figures, without being informed-of the items of which it is composed, or of the rule by which it was worked. II know that there is a former act of the legislature upon the subject of referees, and providing for the settlement of litigated accounts, where the same strictness is not required as in this one; but that equally exacts a stated account, for the information and guidance of the court. The referees, by these acts, are not resorted to as a tribunal, to apply principles of law; but as accoun.. tants, to audit accounts and to state balances; the court will then do its duty. But here, this duty is entirely taken off its hands, and it has left no *301other office to perform, but that of blindly rejecting or confirming their report.

3. By our law, interest is never allowed upon unliquidated debts or open accounts; and even upon liquidated and ascertained debts, if not stipulated to the contrary, it runs, not from the date of the debt, but from the period of the judicial demand. But here, upon an open account, we find the original sum increased by interest, which must have been allowed, nbt only from the period when the suit was instituted, but from the date of the debt itself.

Ellery, in reply.

Had the counsel attended to the manner in which this reference has been made, and consulted the terms of the submission, much time might have been spared in the discussion. This case is not embraced by either of the acts quoted. Those acts apply to referees, appointed by the court, not to arbitrators chosen by the parties; and they suppose long and intricate accounts, the investigation of which would consume too much of the time of the court, and which they are authorised to leave to referees, as a species of experts. But here were no long and intricate accounts~for investigation, neither were the referees appointedby the court. Again, the last act, which requires the oath of the referees and prescribes its form, limits the reference to three persons-here, *302by consent, five have been chosen. We do not then fall under this act; and as for the first act, no oath is required on the part of the referees; therefore, snpposing this case embraced by the first act, the want of qualification of the referees, cannot be urged as an exception. But we find, from their report, that they were duly qualified-they there state, "after being first duly sworn This is sufficient eveidence of the fact; no further can be legally required; an& ifnot true, the contrary ought to be shewn. The referees ought to be presumed to act according to law, without their declaration to this effect, inserted in their report; but we are now told, they are to be pre-. sun-ted to act against law, notwithstanding their recorded declaration to the contrary, in express tenns. But no presumption is allowed to overturn an award. 2 Atk. 501. But again, is this qualification of the referees, if not particularly required by law (and it is not by the first act) from the nature of their office,, indispensably necessary? I think not: by electing this mode of terminating their differences, the parties have chosen their own judges; it is not like a struck jury, to which the gentleman would assimilate it, but is a domestic tribunal, resorted to by the parties, which is to decide upon their case, unincumbered by technical niceties, and divested of forensic forms,

*3032. But, it is contended, that no account has been stated by the referees, and presented by them to the court.-neither was it necessary or possible, as there were no accounts between ~he parties requiring either investigation or statement; no offset was set up by the defendants to the demand of the plaintiff, nor any conflicting claim opposed; a case was submitted to them for decision. not an account to be stated. The submission mentions the word ease, thus excluding accounts -and upon this case, as appears from the lead-whether, by the usage of merchats, the credit allowed by the plaintiff, in the sale of certain mer-ehandize consigned by the defendants, was a departure from his instructions, or such a departure as made him liable for the amount of the loss incurred by giving such credit? By their report they found the negative; the account itself was never dispnted, it consisted of specific and unde-nied items; the parties were at issue solely upon the principle now settled by the referrees; who, in stating the sum due by the defendants to the plaintiff, sufficientIy stated the account

3. But it is further urged, that they have allowed interest, and that this allowance is not according to law. But how does it appear that interest was allowed? Has any sum been set down for the rate, or as the amount of interest Have *304they not found for the plaintiff in round numbers, without specifying the items? How then can it be shewn, what part belongs to the principal, or what part makes the interest? But conceding, that interest was allowed, it remains yet to be shewn that this allowance was illegal or incorrect. The transaction between the parties was purely a mercantile one, not falling under the general principles of law, but to be construed according to mercantile usage On this account, and for this reason, was this base committed to five respectable and distinguished merchants. B~sides in the digest of the civil code, we find constant excep tions made in favor of mercantile usage; thus, in the case of the privilege of the vendors of property, it says, "nothing therein shall alter or affect "the established laws and usages of commerce," 470. The lex mercatoria exists entirely distinct ahd independent of the code.

THUS, upon an examination of this report, we shall fiad that it is not embraced by either of the acts of our legislature, though conformably to the provisions of both: that it is a voluntary submission by the parties, who agree that the report should be made the judgment of the court; that the report is consistent with the terms of the submission: of course, then, it can never be set aside, except for corruption, partiality, or misconduct, or a plain error or mistake upon the face of it. Kyd, *305227, 3 Atk. 394, 5 Atk. 529. These are the principles both of the civil and common law, from the former of which the latter has borrowed them.