Clark v. Fairchild. proceedings. It is entirely clear, that his case belongs to another and distinct category. The demand in question was unliquidated, and I do not deny that it was a fair subject of judicial inquiry, nor that the defendant and the estate of his testator should be protected from costs, had he brought himself within the 2 R. S. 20, et seq. I put the case on the ground that he has not so done. Take your rule for judgment in favor of the plaintiff, with common pleas costs, and that such costs be collected of the assets of the defendant's testator. CLARK US. FAIRCHILD. On an application to the court to set aside a judgment entered on a report of referees and for leave to move to set aside the report on the merits, where the defendant had omitted to obtain an order to stay proceedings, the court will look into the whole case, and grant or refuse the motion as justice may require. It is a general rule that a mistake in the stating of an account, may be corrected; but to this rule there are many exceptions. In this case, it was held, that a balance struck by parties in respect to certain matters after a hearing before referees had commenced, and which was reported to the referees and entered by them on their minutes, was conclusive as an admission in the cause, and could not be opened. Where personal property, e. g., a boat, was sold under a special contract, containing specific provisions as to the mode and time of payment, and as to the vendor furnishing the purchaser with freight, it was held, that the property having been delivered to and used by the purchaser, and the plaintiff having performed all that he had stipulated to do, an action might be sustained on a general indebitatus assumpsit for the price of the prop erty, and that it was not necessary to declare specially. MOTION in behalf of the defendant, to set aside a judgmen entered on a report of referees; and for leave to move to set aside the report on the merits. The report was delivered to the plaintiff 28th October, 1839; and was in his favor for $1017.29. Affidavits to set it aside on the merits were drawn and served on the second day of November; and the cause placed on the calendar for argument at the next January term. Through misappre Clark v. Fairchild. hension of the practice by the defendant's attorney, no order was obtained to stay proceedings, and the plaintiff's attorney perfected judgment, and issued and caused to be levied a fi. fa. on the defendant's property. The defendant's attorney now made a general affidavit that he thought the report erroneous on the merits, and that it ought to be set aside. By The court refusing to interfere on such an affidavit, the defendant's affidavits made with a view to the motion on the merits, were handed up with counter affidavits. the affidavits it appeared that the claims of the parties lay in mutual accounts. The declaration contained only the common counts in assumpsit. The plaintiff, among other things, claimed $300,60, money due to him from the defendant, which had, as was insisted, been mispaid by the defendant to a certain firm (Clark & Kimball) of which the plaintiff was a member; and also the price of a moiety of a Durham boat, sold by the plaintiff and delivered to the defendant, who had the liberty of paying by carrying freight for the plaintiff. At the time of the sale, the boat was owned in equal moieties by both parties. Two out of the three referees only met on the day when the cause was noticed for hearing, (September 9th.) But it was agreed that one Eldridge should be examined notwithstanding, and notes of his testimony taken, to be used at any subsequent hearing before the referees instead of requiring his personal examination. His testimony related mainly to the $300,60. After he had been examined, the parties retired and settled all their mutual accounts, amounting to several thousand dollars, except the claim for the moiety of the boat. They found due to the plaintiff $234,46, reckoning the $300,60, as the separate claim of the plaintiff; not as the claim of Clark & Kimball. As a part of the settlement, the plaintiff assigned to the defendant a debt of considerable amount, which he claimed against third persons. It was agreed that the settlement thus made, should be entered in the notes of the due to the plaintiff, and so two referees present, the sum to be allowed; and that the settlement was in full of all Clark v. Fairchild. matters between the parties except the claim for the moiety of the boat, to which claim the examination before the referees was to be confined. An entry was made accordingly, and the hearing was adjourned from time to time until the 28th of October, when it was had before all the referees. On this hearing, after the plaintiff had proved the sale of the moiety of the Durham boat, to be paid for in carrying freight, and had rested; the defendant offered to prove that the item of $300,60, had been allowed to the plaintiff in the settlement by mistake; that the sum had been deposited in a bank to the account of Clark & Kimball, and was drawn out by the plaintiff. This testimony was objected to and overruled. The sale of the moiety of the boat was not disputed. It took place in February, 1833; price agreed, $550. The sale was transacted in writing, between the parties. Provisions as to the mode of payment in freight, and as to furnishing additional freight to the defendant, were made somewhat in detail, relating to the kind of freight, prices and time of transportation, &c. There was no dispute that the defendant had taken actual delivery, and had long held exclusive possession of the share of the boat purchased; and there was no pretence that it had been paid for. The plaintiff proved the furnishing of freight in the season of 1833, and, as he insisted, enough to satisfy the contract on his part. It was not carried, however; and no very satisfactory explanation was given why not. The testimony was strong that freight was furnished to the amount of the contract, and directions given as to its transportation; but the defendant did not show that he had transported any part of it. The main objection to a recovery was, that the declaration should have contained a special count, setting forth the boat and freight contract. The plaintiff answered that, if the referees thought he had fulfilled on his part, the general count on an indebitatus assumpsit for goods sold and delivered was enough. Clark v. Fairchild. J. A. Spencer, for the motion. R. Lansing, contra.` By the Court, COWEN, J. It is not denied that the judg ment is perfectly regular; and all the defendant's counsel pretends to claim is, that he should be relieved on terms, so far that we may hear a motion to set aside the report upon the merits. The mistake of omitting to obtain an order to stay proceedings was of a point in practice very well settled ; but still, on a misapprehension so plainly established, we have the power to relieve, and should do so, provided the whole case presented a fair ground for interposing. Certainly the mistake alone does not furnish an adequate reason; nor does the attorney's general affidavit, that he thinks the report ought to be set aside on the merits, and that he believes we too should think so. Of this we must judge for ourselves. The decision of referees is, like the verdict of a jury, strong evidence against the defendant, and a simple order to stay with a view to move on the merits, upon papers presented in due season, ought not, in such case, to be granted till the judge is convinced, on looking into the matter as made out by proof, that a mistake either of law or evidence will finally be established. For the purpose of obtaining such a view, if not a common, it is at least a salutary practice to grant temporary orders of stay from time to time, till the judges can command a full knowledge of the case as it may be finally settled, or, at least, by looking at the affidavits on both sides. A fortiori, where the party purposing to move has been guilty of laches, and comes for an acknowledged favour. In such a case he invokes the exercise of a two-fold authority; first, the ordinary power of staying proceedings, common both to a judge at chambers, and the court in banco; secondly, the power peculiar to the latter of dispensing with the rule of practice by which the party has suffered himself to be foreclosed. In the latter case it ought especially to be seen, that arresting the proceedings and giving the usual chance to be heard in the order of the calendar, will subserve the ends of justice. Clark v. Fairchild. With this view I have examined the case before me, as presented by the affidavits on both sides. First, with regard to the settlement and striking a balance. The defendant's counsel relies on the law as unquestionable, that you may always prove a mistake in accounting. And I do not deny that this is correct as a general rule. Phil. Ev. 384, 8th Lond. ed. But there are whole classes of exceptions; and the settlement in question plainly belongs to one of them. This settlement was an admission of a balance due, made in the course of hearing a cause, for the purpose of dispensing with all farther proof, after Eldridge, the only witness examined on the subject of the $300,60, had been dismissed. The hearing was afterwards adjourned some two or three times, without an intimation being heard that there was any intention to depart from the point agreed on as the single remaining one, viz. whether the plaintiff should have pay for his half of the boat sold. Nay, more in the settlement, and as part of it, the plaintiff had made an assignment to the defendant of his claim against third persons. Then at the final hearing, after the plaintiff had closed his proof concerning the boat, and rested, he is met as the first step in the defence with an offer to falsify the item of $300,60 The settlement was conclusive. In the first place it was conclusive as being an admission in the course of the cause for the purpose of superseding all proof in respect to the general account, and every part of it. Being made with that intent, its conclusive effect is perfectly well established by authority, even though it had been made out of court. Davies v. Burton, 4 Carr. & Payne, 166. Phil Ev. 378, 8th London ed. 1 Phil. Ev. 105, from 7th Lond. ed., and Notes by Cowen & Hill, note 192, p. 200. A fortiori, where the admission is in open court. The reason, says Phillipps, is, that a court of justice has been induced on the faith of the admission, to adopt a particular course of proceeding. Phil. Ev. 8th ed. ut supra, et vide, 7th ed. and notes ut supra. The same books at the same places present and illustrate an additional ground, viz: "Where other persons have on the faith of the representations, been led to alter their |