After argument,
Williams, J.,delivered the opinion of the Court. — It appears that this cause, together with others between the same parties, was by the county court referred to referees, who having met and heard the parties, made their report for the defendant, Smith, to recover of the plaintiff twenty nine dollars seventy eight cents; and gave their report to the defendant’s attorney to carry up to court for acceptance. Before the acceptance, and before the setting of the court, they discovered that a mistake had intervened in the computation of - some of the demands which had been before them, which if corrected would have made a material alteration in the result to which they arrived. They, therefore,made an additional report, stating the error, and reques* ting to have the same attached to, or made part of, their first report. This additional report having been filed, exceptions were then taken to the whole by the plaintiff, Hazeltine. The county court accepted the report, and rendered judgement for the defendant to recover the sum as first reported ; and on exceptions taken to this judgement, the cause is brought here.
The principles by which courts are governed in accepting or rejecting reports of referees, have been settled by this court in several cases, and are familiar to the profession. If the referees attempt to decide according to law, and mistake the law in their decision, and a different result would have been produced if the law had been correctly decided, their report founded upon such decision will he set aside. The referees, being judges of the parities’ choice, are not obliged to decide upon the strict principles of law, but may disregard them altogether, and adopt certain principles of equity or justice to govern their decision ; and, in such a case, unless partiality or corruption can be attributed to them, their report will not be set aside for a mistake in law. A mistake made by them on the principles which they adopt in making their decision, as mistaking a fact, or an error in computing or stating an account, may be a reason for setting aside their report: and it is on this ground, because it is not the report which they intended. A mistake in computation may, in ordinary cases, be cor-*537recASiS by them, or by the court in-rendering judgement. If the mistake is discovered before their report is accepted, or before 'the rule has expired, it is usual for them to amend the report and make it conformable to their intention. Having once heard the parties and made their award, the referees cannot again go into a hearing of theparties, nor receive any new or additional evidence, unless by mutual consent : but if they discover any error or mistake in computation, or any clerical error in drawing up the report, they may correct such error or mis take, and it is their duty so to do, while the report' is under their control. If the mistake is not discovered until after the report is filed in court, it may be out of the power of the referees to correct it j but this will afford sufficient reason to the court for setting such report aside and rendering no judgement thereon, unless the same is recommitted for the purpose of having it made conformable to the intention of tire referees, either by consent of the parties' of by order of court.
It must be the object of the court to render such a judgement as th# referees intended, ahd if this cannot be done, either in consequence of an error made by them, or in consequence of the report having been made in such a manner, that their intention cahoot be discovered or carried into effect, the report will be set aside, and the parties left to contest their claims in the usual and ordinary way in which other claims are litigated. In this case, if the first report, and what has been called the additional or supplemental report, were properly, before the county court, they unquestionably erred in the judgement which they rendered, as it is apparent, that the referees in their first report made a mistake in computation, and if that mistake had been corrected, a different result would have been produced, and á balance found due from the defendant instead of the plaintiff. The defendant is, therefore, endeavouring to obtain a judgement which the referees never intentionally awarded. Whether from both reports together such judgement could have been rendered, or whether some further explanations or statements of the accounts and claims might not háve been necessary in order to render judgement thereon, is uncertain. But our present inquiry is whether the judgement which the county court did render is erroneous or not. If the additional report had not been made, yet the same facts which appear therein substantiated in a proper and legal way, either by affidavit or otherwise, would have afforded a sufficient reason for setting *538aside the'report, and the court could not with propriety, have accepted the same and rendered judgement thereon;
It has been strongly insisted on in the argument, that the additional report is not to be taken into consideration, nor regarded as any part of the proceedings; and it is on this point alone that any difficulty has arisen with-jus, in coming to a conclusion in tho case. We, however, must notice it as a part of the record. It comes here as such it was before the county court was referred to. as part of the report excepted to: it appears both by the direction, and date to have been made before the commencement of the term of the county court, arid before the first report was filed, and while it was in the power of the referees to. correct any errors which had intervened in computation. It.does not appear at whose suggestion, or by whose procurement, it was made ; and it may have been solely at the instance of the referees. It was not making any new award — any new decision upon evidence,, nor adopting any new principles to govern the decision, but . merely an amendment for the purpose of correcting a mistake. There is nothing in the additional report which..of itself, precludes*it from being received as additional to, or a part of, the first report. We must, therefore, consider it as made by the referees before the first report was.returned into court,* or made by permission of the county court. And unless so made, the county court should have ordered it taken from the files and records.
The additional report must then be taken to be part of the first report, and from both of them together,, it appears that the sum-first reported, and for which judgement was given, was not the true balance between the parties j and .the ju.dgement of the county court for that sum was therefore erroneous. The report, with the additional one,was not sufficiently explicit for the county court nor for this Court to render judgement for the sum which the referees intended to find. The report should, therefore, not have been accepted, but the referees ought to have been permitted to have made it more clear and explicit, and state the different claims adjudiealed by them, with such accuracy that the court might render a judgement conformable to their intentions. If the defendant was not willing to take such judgement as the referees intended, he must submit to have the claimp investigated in due course of law, and not insist on a report which the referees have declared to be erroneous and founded in mistake.
The judgement of the county court must be reversed,and the cause remanded fortriak
Read, and Hunt & Beardsley, for plaintiff. Smith, for defendant. Hutchinson, J.I find difficulty in- agreeing to the decision now made, on account of the shape in which the cause comes before us.' We are deciding as upon a writ of error, and must decide upon the facts, that appear of record.. There is nothing that shows that the second report, as it is called, ever became a part of the record.. There appears no motion to the county court to recommit to the referees, that they might amend their report. Nothing appears that the court treated it as a part of the case. As a matter of evidence they might well have rejected it as not under oath. It has come up to this Court with the files. So might.an affidavit, or deposition have come, and be no part of the record, unless referred to in the record as a part thereof. The. regular way would have been for the plaintiff to have procured an affidavit of one or more of the referees, showing the mistake, and presented that to the court, with a motion to recommit for the purpose of rectifying the mistake. Then the court, without setting aside the report, or acting upon its merits, might recommit, and then the report coming in, amended under the sanction of the court, would present the whole facts to be acted upon by that court, and this as a matter of record. Probably, in this case, better justice may be done by this decision. For, if the facts stated in this second report are true, there was a mistake which turned the whole cause the wrong way. The referees found a balance for the defendant of ‡11 ; and as three actions were referred, this decision drew after it two bills of cost, making about $29 in the whole. If the mistake of $20 is rectified, it will turn abalance of about $9, infavor-of the plaintiff, and carry with it the two bills of cost in the other suits. But I find no such record evidence of these facts, that I can give relief upon a writ of error.