The court took some time to advise, and afterwards delivered their opinion in substance as follows :
We adhere to the principle, under which we have frequently acted, that reports should not be set aside on slight grounds. A clear, plain, evident mistake, either in law or fact, which affects the justice and honesty of the case, must be satisfactorily shewn to the court, before they will deem themselves authorized to interpose; but where such an instance occurs, their interference becomes a matter of indispensable duty.
The first ground of objection does not appear warranted by the determination of the Supreme Court in the cases of Falconer v. Montgomery and Newbold, and of Passmore v. Petit and Bayard, at the last term, for the reasons given by the plaintiff’s counsel.
But we cannot help thinking, that the referees have adopted an erroneous principle of decision, by finding the sum paid by the plaintiff to Galbraith, on his second purchase, and the interest theréon as the measure of damages, unless the same was effected at the instance of the defendant, or he agreed thereto subsequently. The utmost length they could have gone, if the repayment of the original purchase money and interest would not be a sufficient compensation for the damages, which the plaintiff has sustained, would be to award the value of the premises at the time of the eviction, and the intermediate interest. We do not go so far, as to lay this down as an uniform rule of decision, which ought to prevail on title bonds of this nature.
Whether the debt found due to the plaintiff, exceeds the penalty or not, will depend on the period from which the interest is calculated. If the iool. is reduced by the scale at the rate of i£ for i, it will certainly exceed it, though we should compute the interest from the time of the contract.' On this point, however, we give no opinion whatever, whether the depreciation act applies, or not. But from what period, shall the interest commence, if the penalty is not reduced by the scale ? We think from April 1791, when Galbraith recovered against the plaintiff. Until that time, the plaintiff was in possession under the defendant’s deed, and in the perception of the profits, and the *526] right was unascertained.
The intermediate time from thence till the signing of the report, we may call 10 years and 5 months, which would produce the interest of 62l. 10s. and added to the principal, would form an aggregate of 162l. 10s, It would require 55l. is. more, to *526make up the 217I. ns. found by the referees, as due to the plaintiff.
Messrs. Bowie and Hopkins, pro quer. Messrs. Duncan and Cassat, pro def.The court will be liberal, when judging of the reports of referees ; but the nature and settled forms of actions must be preT served by them equally as by juries. Reports approved of by the court, have the same effect as verdicts, but are not more available. Referees must adhere to the established essentials of actions ; otherwise their reports, though established by the court to which they are returned, would be set aside on error. We must necessarily be supposed to mean such cases only, where a deviation from the usual rules is not allowed by the terms of the submission.
We therefore find ourselves constrained to set aside the report ; but it shall be on the terms offered by the defendant’s counsel during the argument. Let the plaintiff be at liberty to file a new declaration in covenant, and an agreement be subscribed for that purpose by the defendant’s counsel; an issuable plea be put in, and’ the cause tried at the next Circuit Court.— And if there is any danger whatever of the debt, as there is an acknowledged sum due, let judgment be entered by way of security. Substantial justice will be done thereby to both parties, and if the defendant has been the means of subjecting the plaintiff to additional losses and expences, it will have due weight with the jury.