Upon an affidavit of the plainti/fs, that a suit of Hacker against them was depending in this court, which had been referred, and that the referees, it was apprehended, were inclined to report a balance in their favor, if the state of the pleadings would admit of it, I granted an order, in vacation, to stay the filing of the report of the referees in the suit in which Hacker is plaintiff, to give the plaintiffs, in this cause, an opportunity of making the present application.
Upon the state of facts now disclosed, it appears to me improper to grant the plaintiffs’ motion. By virtue of the consent endorsed upon the general issue, in the cause heretofore referred, the plaintiffs have their election to have the balance, which may appear due to them, reported in their favor, in that suit, or upon the trial of this cause, to recover such balance under the general counts. The circumstance that the trial of the cause will require the discussion and decision of important principles of law, affords a strong reason against the reference prayed for.
Let the plaintiffs take nothing by their motion, and pay the costs of resisting.
Motion denied.
*N. B. — Only TompkiNS and LiviNGSTON, Jus*253tices, were present at the application. The latter gave no opinion, having been concerned, nor did the other judges, as they had not heard the motion.