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Where an agreement to submit a matter in controversy in a pending action to arbitration, is not made a rule of court, but in accordance with an independent agreement, made outside of the action, the failure of either party to abide by the award, furnishes a new cause of action for the recovery of damages at law, or for specific performance, in a proper case, in a court of equity. The remedy must be sought in a new action and cannot be obtained by setting it up in a supplemental complaint in the action pending. Metcalf v. Guthrie, 94-447; Jackson v. McLean, 96-474; Long v. Fitzgerald, 97-39.

Where a party files exceptions to an award and seeks to have it modified by the court, he waives all objection to the fact that the submission was made in pais, and the court can proceed to act on the award as if it had been made under an order in the cause. Long v. Fitzgerald, 97-39. Where all matters embraced in an action are submitted to arbitrators, and they make no mention in their award of one item of charge claimed by one of the parties, they will be taken to have disallowed it. Ibid. An award duly made upon an arbitration, and performed, constitutes a good plea in bar to a subsequent action for the same cause. Cheathamv. Rowland, 105-218.

The award of the arbitrator, when made a judgment of the court, is final and conclusive between the parties. Reizenstein v. Hahn, 107-156. See420, ante, and cases cited.

Sec. 423. Referees, how chosen; who may be referee; report. C. C. P., s. 247.

In all cases of reference the parties as to whom issues are joined in the action (except when the defendant is an infant or an absentee) may agree in writing upon a person or persons, not exceeding three, and a reference shall be ordered to him or them, and to no other person or persons. And if such parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object. And no judge or justice of any court shall sit as referee in any action pending in the court of which he is judge or justice, and not already referred, unless the parties otherwise stipulate. The referee shall make and deliver a report within such time as may be ordered by the court. The report of the referee shall be made to the clerk of the court in which the action is pending; either party, during the term or upon ten days' notice to the adverse party out of term, may move the judge to review such report, and set aside, modify or confirm the same in whole or in part, and no judgment

shall be entered on any reference except by order of the judge.

Right to terminate the reference.-A reference ordered by the court to take an account, in an action pending before it, is not such a reference as the parties or either of them may end at their election. Green v. Green, 69-294.

A party cannot elect to end a reference after the report of the referee has been made, and he has filed exceptions thereto. Armfield v. Brown, 70-27.

After the parties have once waived their right to a jury trial by consenting to a reference, they cannot afterwards withdraw such waiver and Idemand a jury, nor has the court power to discontinue it, at its discretion. Armfield v. Brown, 70-27; Perry v. Tupper, 77-413.

Where parties to an action agree to refer the matter in controversy to a referee, their assent continues until the order of reference is complied with by a full report. In such case an objection of one of the parties to a re-reference to the same referee was properly overruled. Fleming v. Roberts, 77-415.

NOTE. This section as now amended neither requires the report, as formerly, to be filed in sixty days, nor permits the parties to terminate the reference on notice.

Reference set aside.—The court can, in its discretion, set aside a reference to state an account, after report made and exceptions filed, and proceed to try the case. Bushee v. Surles, 79-51.

Appointment of an attorney in the action as arbitrator.-Quære, whether the reference of an action by consent to an attorney in the cause, for arbitration revokes his authority as attorney. Williams v. Thomas, 78-47.

Report set aside. It is the duty of a referee to state positively and definitely all the facts constituting the grounds of defence, and not leave to inference what is the precise fact intended to be found. Conclusions of law and fact must be stated separately; otherwise the appellate court cannot review the referee's conclusions of law, its peculiar province, and the report of the referee will be set aside as being defective, and the cause remanded. Earp v. Richardson, 75-84.

A report of a referee that does not state all the items of the account between the parties, will be set aside for vagueness. McCampbell v. McClung, 75-393.

A report of a referee will not be set aside and re-reference ordered, where the same, though informal, furnishes the information required. Gulley v. Macy, 89-343; Grant v. Edwards, 92-442.

Where the report of a referee is imperfect or unsatisfactory, the court will disregard the exceptions thereto and order a reference with instructions as to the manner of stating the account. Grant v. Bell, 90-559.

A referee admitted certain evidence, which was objected to, and made his report without ruling on the admissibility of such evidence. In the superior court there was an order of re-reference, in which the referee was expressly directed to rule upon the admissibility of the evidence objected to. The referee made another report, without passing on the evidence, and the defendant excepted: Held, that it was error to give judgment confirming the report without passing on the objection to the evidence, and that the judge below could pass upon the competency of the evidence, without again recommitting the case to the referee. Wallace v. Douglass, 103-19.

Evidence should accompany report.-The evidence in writing upon which facts are found by a referee must accompany his report. Cain v. Nichson, 77-411; Com'rs v. Magnin, 85-114.

A referee is not required to refer to the evidence in his findings of fact. All that is required is that he should transmit to the court the evidence upon which his findings are based. Barbee v. Green, 92-471.

All the evidence taken by a referee should accompany his report, to the end that it may be considered by the court in reviewing his findings. Tharington v. Tharington, 99–118.

That the referee has not reported all the evidence taken during the trial before him, is not ground of exception. If all the evidence is not sent up, the remedy of the prejudiced party is by application to the judge for an order directing the referee to send up that which has been omitted. Perkins v. Berry, 103-131; Williams v. Whiting, 92–683.

A report of a referee having been filed, and the parties allowed time for exceptions, a party who has not filed exceptions within the time has no right to take the objection, by motion for a recommittal, that the evidence was not filed with the report, and the referee did not report the facts upon which he based his conclusions of law; though the court might, in its discretion, allow him to except for sufficient cause shown. Manufacturing Co. v. Williamson, 100-83.

Exceptions, when to be filed.-Exceptions must be filed at the term at which the report is submitted. It is in the discretion of the judge whether they are permitted to be filed at a subsequent term or not. Long v. Logan, 86-535; Com'rs v. Magnin, 85-114; McNeill v. Hodges, 105-52.

Exceptions to a referee's report should be filed at the term to which the report is made. University v. Lassiter, 83-38. But if this is not done, the court can, in its discretion, allow exceptions to be filed at any time before judgment upon the report. State v. Peebles, 67-97.

Exceptions to be heard within the county.-Except by consent, or in those cases specially permitted by the statutes, the judge of the superior court has no jurisdiction to hear a cause or make orders therein outside of the county in which the action is pending. McNeill v. Hodges, 99-248. See, generally, cases cited under preceding sections of this sub-chapter.

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Sec. 424. Judgment may be for or against any of the parties; may grant defendant affirmative relief; complaint may be dismissed for neglect to prosecute action; judgment against married woman. C. C. P., s. 248.

(1) Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights. of the parties on each side as between themselves;

Judgments, how framed.-Under The Code, the courts are required to frame their judgments so as to protect both the legal and equitable rights of the parties. Hutchinson v. Smith, 68-354.

A judgment may determine the ultimate rights of the parties on each side between themselves as well as between the adverse parties in the litigation. Hare v. Jernigan, 76–471; Clark v. Williams, 70-679; Hughes v. Boone, 81-204.

When an action is brought for an injury caused by the separate acts of parties having a common interest adverse to the plaintiff, the jury may assess separate damages as to each. Long v. Swindell, 77-176.

A judgment rendered in favor of a plaintiff, and an affirmative one in favor of the defendant, though written and attested separately, constitute but one judgment. Hall v. Younts, 87-285.

In ejectment, the plaintiff may recover and defendant will retain so much of the land as each shows himself entitled to upon the evidence, unaffected by the fact that both, in the pleadings, set up a claim to the whole tract. Cowles v. Ferguson, 90-308.

Where the plaintiff is not made a party in her representative capacity as administratrix, no judgment can be given affecting her as such. Usry v. Suit, 91-406.

In an action to recover for work and labor upon the construction of a house, the court may, in a judgment for the amount due, decree a lien on the premises therefor. Oakley v. Van Noppen, 95-60.

It is not erroneous, in an action against the sureties upon several bonds of a public officer, to enter judgment against the defendants for the penalties of their respective bonds. Davenport v. McKee, 98-500.

A judgment can be rendered in favor of one co-defendant against another. McNeill v. Hodges, 105-52; Hare v. Jernigan, 76-471; Clark v. Williams, 70-679; Hughes v. Boone, 81-204; Hulbert v. Douglas, 94-128.

(2) And it may grant to the defendant any affirmative relief to which he may be entitled;

Judgment for counterclaim.-Whenever the answer sets up a counterclaim, the defendant, if he recover, is entitled to any judgment required to make it effectual. Walsh v. Hall, 66-233.

When a party is sued by a firm, he may have judgment in the action on a counterclaim against the partnership, or against either of the partners. Sloan v. McDowell, 71-356.

A vendee, in an executory contract to convey lands, having failed to pay the purchase-money when it became due, subsequently purchased his notes therefor at an administrator's sale for a nominal amount, and then brought an action to compel the vendor's representatives to convey to him: Held, (1) that a specific performance would not be decreed until the vendee had paid the price stipulated in the contract of sale; (2) that the defendants having prayed for affirmative relief, it was not error to decree that the lands should be sold and the proceeds applied to the satisfaction of the balance due, if the plaintiff did not pay within a time fixed. Burnap v. Sidberry, 108-307.

See244, ante, and cases cited.

Judgment for defendant on both legal and equitable defences.-A defendant is entitled to set up as many defences as he may have, legal or equitable, and to have such relief, affirmative or other, as shall be legally authorized on the facts constituting his defence. Melvin v. Stephens, 82-283. Both legal and equitable rights are now administered in one and the same action. Hence, if to a suit for specific performance of a contract to convey land the statute of frauds is pleaded, the court can render judgment for return of the purchase-money. Pendleton v. Dalton, 92-185.

Judgment for one defendant against the other. -Under The Code practice co-defendants cannot set up demands and take relief against each other, unless their disputes arise out of the subject of the action as set out in the complaint, and have such relations to the plaintiff's claim that their adjustment is necessary to a final determination of the cause. Hulbert v. Douglas, 94-128.

Mesne profits. Where, after final judgment in the supreme court, it was suggested that since the date to which the referee's report settled the rights and liabilities of the parties, the plaintiff had remained in possession of the land and become liable for additional rents, the right could not be enforced in this action, but the defendant must bring a new action to ascertain the amount of such additional liability. Pearson v. Carr, 97-194.

Under the present method of civil procedure, rents are recoverable up to the time of trial. Morisey v. Swinson, 104-555.

(3) In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper;

Judgment against one or more defendants. When landlord and tenant are sued together in an action to recover land, and the tenant fails to

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