(Odenwelder v. Odenwelder.)

seemed to consider the statute of limitations out of the way, in the present case.

PER CURIAM. The remark made by the judge who delivered the opinion of the court, in the case of Feather's Appeal, was a mere suggestion. The point was not considered by the court, as it was not necessarily involved in the determination of that case. We have since decided, after argument, in two cases, (Gest v. Hieskell, at the last term in Philadelphia, and a case at Pittsburgh,) that a discharge under the insolvent laws, does not prevent the statute of limitations from running against the creditor. The question must now be considered at rest.

Judgment reversed.

[PHILADELPHIA, JANUARY 22, 1836.]

ODENWELDER against ODENWELDER.

IN ERROR.

1. In an action of account-render between partners, a reference was made under the act of 1705, to three persons, who were "to state an account, and hear and determine all matters in variance between the parties in the suit." Held, that it was not a valid exception to the report of referees, that it included matters not properly cognizable in an action of account-render.

2. It is not a valid exception to a report of referees, in an action of account-render between partners, that they have not disposed of certain of the partnership effects, or of the outstanding debts due to the firm, but left them for future distribution.

UPON a writ of error to the Court of Common Pleas of Northampton county, the case was thus;

An action of account-render, was instituted by summons in the court below, to January Term, 1833, No. 57, in which Michael Odenwelder was plaintiff, and Jacob Odenwelder was defendant, and in which no declaration was filed. On the return of the writ, to wit: on the 2d of February, A. D. 1833, the action was referred under the act of 1705, " to Jefferson K. Heckman, W. L. Sebring, and Samuel Yohe, or any two of them, who are to state an account, and hear and determine all matters in variance between the parties in this suit, and make report to the then next or any subsequent term." The agreement to refer was not in writing, but was entered into in open court in term time.

(Odenwelder v. Odenwelder.)

The cause depended before the referees until the 17th day of October, 1833, when they made the following report: "We, the referees above named, after a careful and deliberate examination of all the books, papers, and vouchers submitted to us, and upon hearing the parties, their proofs and allegations, do find that there is due to the plaintiff from Jacob Odenwelder the defendant, eleven hundred forty-nine dollars and eleven cents, as per statements accompanying this report. Witness our hands this 16th day of October, A. D. 1833."

"N. B. The kilns and sheds belonging to the firm, and the outstanding debts due to the firm at the time this suit was instituted, were not taken into consideration by the referees, and constitute no part of the report, and are subjects for distribution hereafter." "Signed by the referees."

Statements annexed to the report. Michael Odenwelder in account with the firm of J. & M. Odenwelder. Dr. As per statement A.

Cr. As per

do.

Balance due the firm,

$ 15,107 19

$ 13,264 86
1,842 33

$15,107 19

Jacob Odenwelder, in account with the firm of J. & M. Odenwelder.

Jacob Odenwelder is indebted to Michael on account, $2,550 60 Half of balance due the firm from Michael, $ 921 16

Do. due Jacob from the firm, Balance due from Jacob to Michael,

480 33 1,149 11

$2,550 60

$1,149 11

JEFFERSON K. HECKMAN,
W. L. SEBRING,

SAMUEL YOHE,

October 16, 1833.

Referees.

110

(Odenwelder v. Odenwelder.)

[Dec. Term,

The statement A, referred to as containing the particulars of the account of Michael Odenwelder, with the firm of J. & M. Odenwelder, which was very voluminous, charged Michael with cash. received from sundry persons, for bricks sold by the firm, and credited him with cash paid to the hands in the yard, and for articles furnished for the use of the yard during the partnership, and was exclusively a partnership account.

The statement B, which was referred to as containing the particulars of the account of Jacob Odenwelder, with the firm of J. & M. Odenwelder, charged Jacob in the same manner, and credited him with expenses, boarding hands, &c. hauling bricks from yard, cash paid for wood for the yard, &c. and was also exclusively a partnership account.

The statement C, referred to as containing the account of Jacob Odenwelder with Michael Odenwelder, was exclusively a private account, and charged Jacob with merchandize got by him and his family, out of Michael's store, lottery tickets, cash paid him and his family, cash paid to other persons for Jacob &c., and credited him with cash received for him from sundry persons, prize tickets, in lotteries, &c. In this account, Jacob was charged with Mrs. Michael Odenwelder's account against his wife and family for millenery work, &c. done for them.

The report of referees was filed on the 17th October, 1833; and on the 19th of the same month, was read in open court, and judgment nisi thereon rendered, and leave given to file exceptions thereto, by the 2d day of November then next. vember, 1833, the defendant by his counsel filed several exceptions; On the 1st day of Noof which the following are the only ones, in the decision of which error was assigned.

"First Exception. That the award does not cover all matters in variance between the parties in the action.

"Second Exception. That the award does great injustice to the defendant, in introducing into the account and award in this action, the individual account of Michael Odenwelder against Jacob Odenwelder, and thus showing a balance due by him to the plaintiff; when in fact, on the settlement of the partnership accounts, which alone were subject of the action and submission, the plaintiff would fall largely in debt.

66

Third Exception. That the referees erred in not stating a particular account of the profit and losses of the firm; and in the situation of the accounts as stated by the referees, it is impossible to know whether the partnership were a profitable or losing concern to the parties."

On the 2d day of February, 1834, the exceptions were dismissed, and the report was confirmed, whereupon this writ of error was sued out.

(Odenwelder v. Odenwelder.)

In this court the following errors were assigned.

"First. That the court erred in dismissing the exceptions, and confirming the report of referees, there being on the face of the report, plain error, and excess of jurisdiction.

"Second. The court should have set aside the report, for reasons stated in the first exception, the first specification of the second exception, and the third exception."

Mr. Brooke for the plaintiff in error.

The question here is, have the referees stated such an account and made such a report, as auditors in account-render for whom they were substituted, are required to do. 1. They have not stated what the partnership effects were; they should have set them forth with their valuation, and ordered a sale. Gow on Partnership, p. 3. Collyer on Partnership, p. 167. Segourney v. Mann, (7 Conn. Rep. 324.) [HUSTON, J. It has never been held that our courts possess all the powers of a Court of Chancery. Has a sale ever been decreed by the Court of Common Pleas, in a case of goods held in partnership?] In Geary v. Cunningham, (10 Serg. & Rawle, 302,) it was said by GIBSON, J., that arbitrators in account-render, have powers as extensive as those of a chancellor, and may make a special award in the nature of a decree, adapted to the particular circumstances of the case. [HUSTON, J. Have you any authority to show that a sale may be ordered by auditors or arbitrators!] I admit that there is no express authority; but the language of the court on several occasions, seems to countenance the idea that they possess it. This award is not sufficiently final. Caldwell on Arbitrations, p. 214, referring to 16 East, 58; 7 Mod. 349; S. C. Willes, 268.-2d. The referees have adjudicated upon matters which were not the subject of an action of account-render and which were never intended to be submitted to them. [ROGERS, J. The submission is of "all matters in variance between the parties in this suit," which certainly gave the referees cognizance of all subjects of difference.] This was not our intention. [ROGERS, J. I take it that you are bound by the entry on the record, whatever your intentions may have been.] The court will look at the nature of the action and judge of the meaning and intention of the submission by that. Could referees in account-render, take cognizance of a question of title to real estate, or damages in slander! 3d. The referees ought to have stated a particular account of the profits or losses of the partnership. This is important for many purposes; but the award is silent in respect to it.

Mr. Porter, for the defendant in error, cited Kline v. Guthart, (2 Penn. Rep. 490,) that the objections to the award could not be

(Odenwelder v. Odenwelder.)

taken in a Court of Error. The court declined hearing him on the exceptions to the award.

Mr. Tilghman, for the plaintiff in error contended, that where the objections to the award appeared on the face of it, this court would not refuse to take cognizance of the case. In Soxman v. Soxman, (3 Penn. Rep. 44,) this court entertained a writ of error upon an award, and reversed the judgment. [GIBSON, C. J. No doubt it may be so, for errors appearing on the face of the award.] Here, we say the errors are apparent. It is said, that we agreed to submit all matters in variance "between the parties." The word parties, must be taken to refer to the action of account-render, and to be limited by the scope of that action. The act of 30th March, 1821, requires an account to be stated, There can be but one action of account-render for the same period of time; yet this award leaves open matters for another action.

PER CURIAM. There is no weight in any of the exceptions taken in this case. The parties selected their tribunal; and if the terms of the submission are larger than was contemplated by the plaintiff in error, he should have applied to the Court of Common Pleas to correct the supposed mistake. Certainly, we cannot enter into that question here. The report of the referees appears to be sufficiently certain and final. If they have not done with the partnership ef fects what the plaintiff in error desires, it is because the power to order a sale, is not possessed, at present, by any legal tribunal of this commonwealth.

Judgment affirmed.