There was error in the ruling of his Honor, appointing a referee. The Code of Civil Procedure, sec. 244, provides that "all or any of the issues in the action, whether of fact or law, or both, may be referred, upon the written consent of the parties;" but a compulsory reference can only be ordered in the cases specified in section 245 of the Code.
The case states that the motion of the defendants for a reference was resisted by the plaintiffs. We are of opinion that this case does not require "the examination of a long account on either side," nor that "the taking of an account is necessary for the information of the Court."
The allegation that a large number of payments have been made on the judgment, which is the subject of this action, is not sufficient to justify a reference.
No question can arise as to the value of the several payments, for according to the decisions of this Court, they are to be taken at (53) their face values. They have been accepted by the plaintiffs, and amount to a discharge, to the extent of their nominal values, notwithstanding the fact that they may have been made in depreciated *Page 41 currency. Brown v. Foust, 64 N.C. 672. Boyden v. Bank of Cape Fear, ante, 13.
Nor does the further allegations, that the defendants have in their hands counter claims against E. Payson Hall, in promissory notes, to them as executors, justify the order of reference. Whether these notes be counter claims or not, is a question of law for the Court, and if they are, and be subject to scale, that matter is regulated by Statute, and the law can be readily administered by the Court.
Therefore this case involves only a simple matter of computation of figures, and has none of the elements of a long account, with charges and discharges, such as is contemplated by the Code, when providing for compulsory references.
His Honor might well have stricken out all those parts of the answer, which insist that the defendants cannot be charged de bonis propriis, but only de bonis testatoris; for the whole case shows that the judgment upon which this action is brought, was the result of a compromise, by which the will of Solomon Hall was admitted to probate, the defendants confessing the judgment to the plaintiffs, in consideration of the fact that they withdrew their opposition to the establishment of said will. Of course then the judgment does not rest upon anything occurring in the life time of the testator, but it is a debt created by matter occurring wholly in the executor's time. Kesler v. Hall, 64 N.C. 60. "It is not possible to conceive how a debt of the testator can be created by matter occurring wholly in the executor's time." Hailey v. Wheeler, 49 N.C. 159.
Let it be certified that there was error, to the end that the Superior Court may proceed according to law.
Cited: Sc., 68 N.C. 305; Norment v. Brown, 79 N.C. 366; Kerchner v.McRae, 80 N.C. 223; Tyson v. Walston, 83 N.C. 95; Duke v. Williams,84 N.C. 77; McLean v. McLean, 88 N.C. 396; Banking Co. v. Morehead,122 N.C. 323; Lee v. Thornton, 176 N.C. 211; Finance Co. v. Culler,236 N.C. 760.
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