Coleman v. Lukens

Per Curiam. — If the question stood on the act of 1705, for which the sixth section of the act of 1836 is a substitute, it would certainly be involved in obscurity by the imperfect evidence we have of the earlier practice and decisions. The judgment in Kunckle v. Kunckle, if the reference were indeed under the original act, went decisively beyond the letter which gave to an award pursuant to it, the effect of a verdict and no more ; no part of which is enforceable by attachment. It is probable, however, that the reference was at common law, for no allusion is made, in the report of the case, to the statute; and the judge who ruled the point had in Buckley v. [357] Durant, (1 Dall. 130,) — a case expressly within the statute — very distinctly intimated an opposite opinion, for the abandonment of which, it is natural to suppose, some reason would have been given. Be that as it may, the act of 1836 is by no means a transcript of its predecessor; for it declares not only that the report shall have the effect of a verdict, but that the party in whose favour it shall be made, “ whether plaintiff or defendant shall have judgment thereon, and the like process for the. recovery thereof as on a verdict in an action commenced by such party,” — a provision which is not in the original act; which looks to a judgment all on one side; and which indicates an execution to be the enforcing process as distinctly as if it were specified in terms; for no one ever heard of such a thing as the execution of a verdict and judgment by attachment. Without then questioning the propriety of the former practice or disturbing any thing done under it, we may establish a different one for the future, by giving the statute its natural and necessary interpretation. As to exceptions and enforcement, a report pursuant to it stands as a verdict; and the referees are consequently restrained, where they are not expressly empowered by the submission, from doing what a jury might not do. By the force of the submission, these referees might have made an allowance for the quality of the article by defalcation, but not by a partial rescisión of the contract. Whether it is to be treated as entirely exploded, or as existing still for the purpose of conferring the same power on a jury, it is not our business to say; at present we decide no more than that the judgment on the report cannot be sustained. Judgment reversed; and the record remitted with a mandate to proceed.