The referees, it seems to me, erred in several particulars on the trial and decision of this cause. In the first place, the commission, and *115the depositions annexed, were improperly received in evidence. The paper purporting to he a commission, being without seal, conferred no authority upon the commissioners, and the depositions annexed were extra-judicial. (5 Iredell, 96. 4 Dev. 95. 3 id. 279.) A commission is a writ or process issued by the special order of the court, and a seal is essential to its validity. (19 John. 212. 6 Ham. Ohio Rep. 11.) The judiciary act of 1847 only dispensed with the seal in respect to process which issues of course without any application to the court.
But upon the merits, other errors, more important, occur. In the first place, it appears that on the 4th day of May, 1839, the plaintiff and Seymour Tracy became the owners, with the defendant’s testator, of an undivided half of the lot of land referred to in the case, under an agreement, as the referees find, that the plaintiff should receive $300 a year for taking the charge and oversight thereof. This agreement was made, necessarily, with his tenants in common, and as a personal claim was a claim against both of them, and survived against Seymour Tracy on the death of the testator, Legg; and no action at law, or suit in equity, would lie against the defendants singly therefor, Seymour Tracy being still living, until his inability to pay the same had been legally ascertained or clearly shown. (2 Denio, 585. Voorhis v. Childs’ Ex’r, 17 New York Rep. 357.) But the agreement, as found by the referees, made between Legg and the two Tracys, in May, 1839, for the payment of $300 to the plaintiff for his care and oversight of the farm, clearly terminated with the sale of the farm on the 14th March, 1842. On the repurchase of the farm by Legg and the plaintiff in May, 1844, the agreement for the salary did not, ipso facto, revive. And there is no proof of any new agreement between Legg and the plaintiff for its revival or continuance. The referees, therefore, clearly erred in allowing the plaintiff a salary of $300 for six years, against the defendant, as for his services in respect to the farm, upon the basis of the original agreement for such *116compensation. The referees also erred in overruling the proof that the plaintiff had received payment for the pasturing in 1846 of the 100 sheep on the farm then owned by him and- Legg, and for the wheat sold therefrom. Upon the assumption that the plaintiff was entitled to recover of the defendant for his services in taking care of the farm, and to have an accounting with them in respect to his disbursements for and receipts therefrom, he was clearly bound to account for the money received for the pasturing of the sheep and for the wheat sold. The money, so far, paid him for his services in taking care of the farm, and was a proper offset to his claim, or was admissible in proof to reduce the same by way of payment. It was objected to this evidence, that the claim therefor was not contained in the agreement to refer. This is true. But I do not understand that matters of defense are ever, or need be, in these cases, set up in the agreement to refer. The whole proceeding is sui generis. The agreement to refer relates to a particular claim presented to the executors or administrators, the justice of which is disputed. (2 R. S. p. 88, § 36. Dayton’s Surrogate, 354.) The agreement to refer recites this fact, and on the approval thereof by the surrogate and filing of the same in the office of a clerk of this court, becomes operative as a voluntary appearance by the parties thereto in this court and a submission to its jurisdiction, for the purpose of adjudicating upon the claim presented. The account presented is in effect the plaintiff’s complaint] and there being no pleadings and no provision in the statute for pleadings, the defendant is limited to no particular defense, and consequently any and every legal defense against the claim must necessarily be available. (7 Wend. 522. 13 id. 453.)
On the trial before the referees, the plaintiff must prove his claim and satisfy the referees of its justice and validity, and every species of legal proof adapted to show the injustice, of the claim, or its invalidity as a whole, or in degree or amount, must be admissible. Within this rule a set off may *117be proved, or a payment in whole or in part, or proof given to reduce the amount. And the defendants standing upon, their denial in the agreement to refer, of the justice of the claim, must be at liberty to make any defense that their testator or intestate could himself make if alive, and the same were properly pleaded in an action upon such claim. Within this rule the defendants were entitled to insist on the statute of limitations. The statute of limitations is a very proper and meritorious defense in cases like this, where claims of a doubtful character ate suffered to lie along till witnesses and parties are dead, and executors or other persons entirely ignorant in regard to them are called upon to make payment.
[Monroe General, Term. September 5, 1859.It was the obvious right and duty of the executors to interpose this objection to the plaintiff's recovery, and I cannot see why it was overruled by the referee, or why it was not a complete defense to the whole cause of action.
The judgment should be reversed, and a hew trial granted, with costs t& abide the event.
Judgment reversed and new trial granted.
T. R. Strong, Johnson, Welles and Smith, Justices.]