1788.

1. That one report is made in two actions. ʃeverally referred.

2. That the Referees filed a fupplementary report without the knowledge of the Defendant, at the inftance of the Plaintiffs.

3. That the firft report is on condition, and therefore the Referees have miftaken a plain point of law; the fecond report being made after their authority had expired.

4. That the promiffory notes for which the actions were brought, are not in the Plaintiffs hands, but affigned for a valuable confideration, and, therefore, there is no legal caufe of action.

The exception being oppofed by Fiʃher for the Plaintiffs, and fupported by Ingerʃoll and Dallas for the Defendant, THE COURT feemed clearly of opinion, that the firʃt report could not be maintained ; that the fupplementary report was irregular ; and that the rule rule of reference to report to next term , did not authorife the iffuing execution upon the report into office during the vacation (particularly without notice to the Defendant) although a term had intervened between the entering of the rule, and the appointment of the Referees.

No opinion was given on the other points, but the execution and report were, for the above reafons, fet afide, and the actions, by confent, referred de novo.

H

ENRY STARRET, while attending the Court as a fuitor, was taken by a Ca. Sa. and Chambers moved that he might be difcharged from the arreft, citing 4 Bac. 421. 3 Bl. C. 289. 2 Stra. 1094. 1 Barn. 17.

Yeates and C. Smith oppofed the motion, and contended, that there was a diftinction between an arreft on meʃne and on judicial, procefs; for, though, in the former cafe, the Court would difcharge a futor, witnefs,&c. from an arreft made during an attendance upon them, yet, in the latter, they would not, becaufe the party would afterwards be remedilefs. Wood's leʃt. 503. 600. 4. Com. Dig. 475. 11 Mod. 234. 252. There is, likewife, another reafon: the Capias on meʃne procefs might be taken out merely on a fuggeftion ; but on judicial procefs, the debt is certain, and fixed by the judgment of the Court.

Chambers and Hartley, in reply. The protection, of fuitors &c. is eftablifhed to promote an equal adminiftration of juftice, and to prevent the oppreffion of a rich and powerful man, over a poor one who is foliciting juftice. There is no exprefs authority that extends the doctrine to this cafe; but in 4 Cum. 575. tit. Priv. it is laid down, that an execution fhall not be difcharge, he fhall himfelf be committed. The books cited in Comyms, Crompton and Wood's Inʃt. are of little authority.