A reference to take testimony, in a suit in equity at issue upon the pleadings, cannot be directed, under the provisions of the act “to facilitate the determination of existing suits," &c. passed April 12, 1848, without the consent of the parties. The 3d subdivision of the 4th section of that act was intended to provide for references in cases where questions of fact should arise upon collateral matters in the cause, in any stage of it, and not to those questions, or issues of fact, which are made by the pleadings.

Issues arising out of the pleadings, in equity suits, are to be tried, and the testimony taken, in open court, in like manner as in cases at law, unless referred by consent of parties.

What matters may be referred by the court, without the consent of parties, under the supplement to the code of procedure.

IN EQUITY. Motion for an order appointing Samuel P. Lyman, Esq. or some other suitable person in the city of NewYork, a referee to take the testimony of Thaddeus Spencer and Jared Stebbins, and any other witnesses that may be offered in the suit, &c. The affidavit upon which the motion was founded showed that the cause was at issue upon the answers of several VOL. III.

2

Flagg v. Munger.

of the defendants and replications filed thereto, and that by an order of the court it was to be tried in Monroe county. That by a stipulation between the parties, testimony on the part of several of the defendants had been taken before Enos Pomeroy, Esq. of Rochester, and the same was not yet closed, and several of the defendants had additional testimony to take, and the cause had not been noticed for hearing at this term. That Spencer and Stebbins, of the city of New-York, were material witnesses for the plaintiff. That to procure their attendance at Rochester, as witnesses, would require an expenditure of more than $60 for witnesses' fees alone, and that their testimony could be taken before a referee, &c. with far more convenience to them, and a saving of expense to the plaintiff. That the suit was brought to foreclose a mortgage upon premises in Rochester, which are barely adequate security for the amount of the incumbrance.

Geo. H. Mumford, for the plaintiffs.

E. Mather, for the defendants.

WELLES, J. The motion is founded exclusively upon the 3d subdivision of the 4th section of the supplement to the new code of procedure. (Laws of 1848, p. 567.) The 3d section provides for references of suits in equity, and references to take testimony, or to report facts, or to execute any order or decree upon the written consent of the parties concerned. The 4th section provides that "where the parties do not consent as in the last section mentioned, the court may, upon the application of either, or of its own motion, direct a reference in such suit in the following cases: 1. Where the determination of an issue of fact shall require the examination of a long account on either side; in which case the reference may be to hear and decide the whole issue or to report upon any specific question of fact involved therein; or 2. Where the taking of an account shall be necessary for the information of the court before decree, or for carrying an order or decree into effect; or 3. Where a ques

Flagg v. Munger.

tion of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the suit."

This case manifestly does not fall within the provisions of the above 3d subdivision of section four; and there is no statute or legal provision, yet in force, which authorizes a reference in such a case, without the consent of the parties. The 3d subdivision was undoubtedly intended to provide for references in cases where questions of fact should arise upon collateral matters in the cause, in any stage of it, and not to those questions or issues of fact which are made by the pleadings. Those issues, that is, issues arising out of the pleadings, are to be tried, and the testimony taken, in open court, "in like manner as in cases at law," unless referred by the consent of parties. The design of the statute in question was to authorize the court, in its discretion, to refer all other disputed matters of fact; such for instance as whether an injunction has been violated, or the party is in contempt for any cause alleged; the numerous questions which arise on motion and in relation to the execution of the orders, decrees and process of the court, and also upon petitions presented during the progress of the cause. In such cases, and many others, the questions of fact, which are frequently sharply litigated, do not arise upon the pleadings, and may be referred by the court, under the above third subdivision of section four. They are those cases where the late court of chancery ordered references to masters, or directed issues to be tried by a jury.

The motion is denied, but without costs.

3b 12 29ap292

WASHINGTON GENERAL TERM, May, 1848. Cady, Willard, and Hand, Justices.

COREY, sheriff, &c. vs. WHITE and others.

Where a judgment is obtained under the statute of April 25, 1832, regulating suits on bills of exchange and promissory notes, by the holder, against the maker and first and second endorsers, and the first endorser purchases and takes an assignment of the judgment, from the holder, such purchase and assignment does not operate as an extinguishment of the judgment, as against the maker of the note. And the endorser, so purchasing the judgment, can wield it against the property of the maker.

The 7th section of that act preserves the rights and responsibilities of the several parties to negotiable paper, as between each other, to the same extent as though the act had not been passed; saving only the rights of the plaintiff, so far as they may have been determined by the judgment.

Prior to the act of April, 18, 1832, the holder of negotiable paper might obtain judgments in separate actions, against all the prior parties, but could have but one satisfaction, and the costs in all the suits.

Any of the prior endorsers might pay the holder, and take an assignment of the
judgments against the parties to the note or bill, antecedent to himself, and thus
reimburse himself.

The distinction between the contract raised by law between the principal and surety,
and that between the successive parties to negotiable paper pointed out.
The case of the Ontario Bank v. Walker, (1 Hill, 652,) explained and questioned.
The case of The Bank of Salina v. Abbott and others, (3 Denio, 181,) overruled.

MOTION by the plaintiff, upon a bill of exceptions, to set aside a nonsuit, and for a new trial. The cause was tried before GRIDLEY, Circuit Judge, at the Otsego circuit, in April, 1847. The plaintiff, as sheriff of the county of Herkimer, claimed to recover in trespass against the defendants, deriving his title under a levy made by virtue of an execution issued upon a judgment in favor of Joseph Carpenter, against Cornelius White, Jacob J. Lints and George Tunnicliff. That judgment was recovered upon a promissory note, made by the said Cornelius White, payable to the order of the said Jacob J. Lints, and severally endorsed by the said Jacob J. Lints and George Tunnicliff. It was shown that after the recovery of the judgment, Lints, the endorser, purchased and took an assignment of the judgment from Joseph Carpenter the plaintiff; and he

Corey v. White.

claimed to enforce the judgment and execution against the property of White, the maker of the note. The circuit judge ruled that the assignment of the judgment by Carpenter to Lints, operated as a payment, and a legal extinguishment, of such judgment, so that an execution could not issue thereon; and he accordingly nonsuited the plaintiff.

C. D. Colman, for the plaintiff.

H. Lathrop, for the defendants.

By the Court, WILLARD, J. Prior to the act for regulating suits on bills of exchange and promissory notes, passed April 25, 1832, (Laws of 1832, p. 489,) the holder of a bill of exchange or promissory note might commence separate actions against all the antecedent parties to the bill or note, and proceed to judgment against all; but he could have but one satisfaction of his debt, and the costs in all the suits. (Windham v. Withers, 1 Stra. 515. Chit. on Bills, Springfield ed. of 1836, 570, 571.) A subsequent party might take an assignment of a judgment obtained against the maker, without extinguishing it. (Harger v. McCullough, 2 Denio, 119, 122.) If separate judgments were recovered against maker and endorser, the latter might pay the judgment against himself, and take an assignment of that against the maker, and enforce it by execution or otherwise. (10 John. R. 524. And see 1 John. Cas. 137, in the matter of McKinley.) It was the constant practice, and still is, for the endorser of commercial paper, when an exigency of business requires it, to pay and take up the bill or note upon which he is endorser, and prosecute the prior parties, on the instrument, one or all of them. (Low v. Copestake, 3 Carr. §. P. 300. Chit. on Bills, Springfield ed. 1836, 567. 20 John. 369, per Spencer, Ch. J. 1 Cowen, 387. 7 Id. 662.) The payment in this case merely extinguishes the liability of the party paying, to the holder. It does not impair his remedy against the antecedent parties. The same result followed, in the case of separate judgments. A judgment extinguishes