Daggy v. Cronnelly et al.

also, to institute proceedings to set aside a fraudulent sale is cumulative. See 2 G. & H. 511.

The judgment is reversed, with costs. Cause remanded for further proceedings, with leave to amend.1

A. C. Downey, for the appellants.

H. C. Newcomb and J. S. Tarkington, for the appellee.

(1) Petition for rehearing overruled, August 26, 1863.

DAGGY V. CRONNELLY et al.

STATUTES CONSTRUED-ARBITRATION.-The statute relative to arbitrations and umpirages does not contemplate, nor provide for, the arbitration of a cause pending in Court.

REFERENCE-REFEREE.-The statute on the subject of trials by referees does not require the referee to be sworn unless the parties require it.

The parties making a reference may agree that the referee may avail himself of the advice of another person in the determination of the matters referred to him, but, in such case, it will not be necessary for such person to sign the report.

The admissions of the referee are inadmissible to impeach his report.

APPEAL from the Putnam Circuit Court.

WORDEN, J.-Suit by Daggy against the appellees for goods, wares, merchandize, &c., on a special contract, and on account stated, claiming damages in the sum of 25,000 dollars.

Answers were filed setting up, amongst other things, a set,off.

The parties entered into the following agreement, viz:

Addison Daggy v. Joseph F. Cronnelly and Patrick H. Flah

Daggy v. Cronnelly et al.

erty: It is agreed by and between the parties in the above entitled cause, now pending in the Putnam Circuit Court, that all the matters in controversy between said parties shall be referred, for full and final settlement, to Jacob D. Earley, of Terre Haute, provided he shall be willing to do so, if not, then to some other person to be agreed upon by said parties; said referee to be assisted and advised in said adjustment by Judge Claypool, of Terre Haute, or Judge Cowgill, of Greencastle, which ever may be most convenient; and the same to be so submitted as aforesaid within a reasonable time, at the convenience of said Early, and his award shall be full and final between said parties, and each of said parties is authorized and permitted to introduce testimony before said referee, by deposition or by witness in person, and his award shall be filed in this Court, and judgment entered thereon."

Mr. Jacob D. Early, having consented to act as such referee, and Judge Cowgill being present to assist and advise him as provided for, the matters were submitted to the referee, who having heard the evidence and the argument of counsel, being aided, &c., by Judge Cowgill, made his report to the Court, to the effect that the defendants were not indebted to the plaintiff, but that on the contrary the plaintiff was indebted to the defendants in the sum of 1,500 dollars, which sum he awarded and adjudged should be paid by the plaintiff to the defendants.

This report being filed, many objections were made to it, which need not be here noticed in detail. The most of the objections were based upon the theory that the proceeding was an arbitration, and not a reference. We are of opinion that the proceeding should be regarded as a reference, under the provisions of the statute providing for “" Trial by Referees," 2 R. S. 1852, p. 116. The statute relative to arbitrations and umpirages (2 R. S. 1852, p. 227) does not contemplate nor provide for the arbitration of a cause pending in

Daggy v. Cronnelly et al.

But the statute does

pro

Court, Francis v. Ames, 14 Ind. 251. provide that if the subject matter of any suit pending in any Court might originally have been submitted to arbitration, the parties to such suit, their agent or attorney at law, may consent, by rule of Court, to refer the matter to referees, whose report shall be deemed and taken to be as available in law as the verdict of a jury, 2 R. S. 1852, p. 232, §§ 22, 23, 24. The agreement of reference in this case provides that the matters shall be referred, &c., and the person to whom it is referred is called "said referee." To be sure, the agreement speaks of the report of the referee, as his award, but we are of opinion that, taking the language of the agreement of reference altogether, and considering the provisions of the statute, the ceeding was a reference under the statute, and not an arbitration. The report of the referee, having the effect of the verdict of a jury, (see The Board of Trustees, &c., v. Huston, 12 Ind. 276), it is obvious that few, if any, of the objections which might be made to the award of an arbitrator can prevail against it. We will notice such objections as seem to require it. The referee was not sworn. The statute does not require him to be sworn unless the parties require it, which it does not appear was done. Section 23, above eited. The report was not signed by Judge Cowgill. This was not necessary. He was not a referee, but was merely chosen by the parties to advise and assist the referee. The plaintiff offered to prove the admission of Mr. Early for the purpose of impeaching his report. This was clearly incompetent. The report stands upon the footing of a verdict, and the admission of the referee can no more be given in evidence to impeach it, than can the admissions of a juror to impeach his verdict. We pass over other objections, based upon the supposition that the report should be regarded as an award.

The evidence on which the referee made his report is not before us, nor was any exception taken before him. The

Edmunds, Treasurer, &c. v. Gookins et al.

Court below rightly rendered judgment on the report in favor of the defendants, for the amount found by the referee.

Per Curiam.-The judgment below is affirmed with costs and 2 per cent. damages.1

Addison Daggy and D. E. Williamson, for the appellant. McDonald & Roache, for the appellees.

(1) Petition for rehearing overruled, August 26, 1863.

EDMUNDS, Treasurer, &c. v. GooKINS et al.

TERRE HAUTE-ANNEXATION.-Section 83 (Acts 1857, p. 70) cures any defect in the previous annexation of territory contiguous to a city organized under the general act for the organization of cities, where the city has filed a plat or map of survey, defining the metes and boundaries of such annexed territory, in the office of the recorder of the proper county.

APPEAL from the Vigo Circuit Court.

WORDEN, J.-In 1856 the common council of the city of Terre Haute, by resolution, extended the city limits, taking in certain territory contiguous thereto. They also filed a copy of the resolution, with plat and map of survey, &c., in the proper recorder's office, as provided for by section 81, 1 R. S. 1852, p. 220.

Taxes having been assessed by the city against the appellees in this case, on property thus annexed, they filed a complaint against Edmunds, the treasurer, to restrain the collection of such taxes.

On the final hearing of the cause, it was adjudged by the Court that the resolution extending the limits of the city was

Edmunds, Treasurer, &c. v. Gookins et al.

null and void, and that the defendant be enjoined from the collection of the taxes.

The objection urged against the resolution is, that the territory thus annexed had not been laid off into lots and platted, according to the true intent and meaning of the section of the statute above cited.

We shall not discuss the validity of the original annexation, for the reason that a subsequent statute cures any supposed defect.

The act of March 9th, 1857, on the subject of the incorporation of cities, &c., contains the following provision: “Whenever any city, incorporated under the acts hereby repealed, shall have, since the adoption of said acts by said city heretofore, by a resolution of the common council, annexed any territory contiguous to said city, and shall have filed a plat or map of survey, defining the metes and boundaries of such annexed territory, in the office of the recorder of the proper county, such annexation of territory shall be deemed to be valid and effectual, and such annexed territory shall be deemed a part of such city, and within the jurisdiction of the same, from the time of the adoption of the said resolution," Acts 1857, p. 70, § 83.

We are unable to perceive any reason why the above statute should not be deemed applicable to the annexation thus made; nor do we think there is any well-founded objection to the law itself.

Per Curiam.-The judgment below is reversed with costs, and the cause remanded.1

McDonald & Roache, Charles Y. Patterson and Mack, for the appellant.

D. W. Voorhees and J. E. Risley, for the appellees.

(1) Petition for rehearing overruled, August 26, 1863.