delivered the opinion of the court. This case was before the court in Sept. term, 1821; and was then remanded for a new trial, which has since taken place; and the plaintiffs being dissatisfied with the judgment last rendered, took the present appeal.
The case in the court below, in consequence of intricate accounts, was, by order, submitted to arbitrators, as therein termed. This reference took place without the consent of the parties, and consequently must be considered as made in pursuance of the law which authorises such references by the sole act of a court, for the purpose of having long and intricate accounts liquidated.
The referees reported in favor of the plaintiffs $526; but proceeded to state a purchase of land made by the defendant, half of which, the district court decreed, should be taken by said plaintiffs at the valuation of $ 5000, and rendered judgment for $ 3526, being the balance of the $ 526. This judgment is erroneous, so far as it relates to the land in question; a point which was settled by the former judgment of this court. See 10 Martin, 285.
Considering the report of the referees, as containing evidence of the amount really due from the defendant to the plaintiffs, it authorises a judgment to that extent, in favor of the latter, which ought to have been rendered unconditionally, by the district court.
It is therefore ordered, adjudged, and decreed, that the judgment of the court below be avoided, reversed, and annulled. And proceeding here to give such a judgment as ought there to have been given; it is further ordered, adjudged, and decreed, that the plaintiffs and appellants do recover from the defendant and appellee the sum of eight thousand five hundred and twenty six dollars, with costs in both courts.