GREENE, C.J.

The writ to the referees in this case was issued upon a petition filed in the Clerk's office of the Supreme Court for this county, on the 27th day of February, 1849. The writ bears date the 28th day of February, in the same year; and the petition on which it issued is annexed to it, and referred to in it.

The referees made their report to the March term, 1850, of this court. Exceptions were filed to the report by the present administrator, Nelson Andrews, and at the following September term, the exceptions were argued.

The first exception is to the effect, that by the petition the referees were to hear, award and determine all the matters, claims, c., and the rights, interests and claims of said parties, and to make report thereof to this court according to law; whereas the writ directs them to decide as shall seem "just and equitable."

It is not alleged that the report is against law; we are bound, therefore, to assume, that it is according to law; so that the report is in conformity to the petition, if the writ be not, and the petition is annexed to the writ and made a part of it. Now, suppose the writ had given no directions how to decide, it would undoubtedly have been good. If the writ authorizes the referees to hear and decide, that is enough, without directing how they are to decide. That is to be left to their own judgment. If the case be one of chancery jurisdiction, it is to be determined according to the rules of equity; if at law, according to the rules of law. We do not think inserting the words "just and equitable," ought to vitiate the report, if the referees have decided according to law, and have not followed these words. They may be considered as surplusage. Besides, the claims against an insolvent estate are determined somewhat upon equitable principles. If the words objected to had led the referees into any mistake, the case would have been different.

The second exception is founded on a discrepancy between the writ and the petition in this: the petition states that the parties have agreed to submit their matters in dispute to the final award of the three referees; and the writ authorizes "the three or the major part to decide."

Under such a petition all the referees must sign the award to make it binding. This rule is well settled. There is, therefore, the discrepancy complained of, but we do not think the writ is, therefore, absolutely void. The report is signed by all the referees, and is the same as if the writ had corresponded with the petition. The difference is an irregularity, which ought not, under the circumstances, to render the proceedings void. If the report had been signed by only a majority, we of course should have set it aside.

And we feel the better satisfied with overruling both these exceptions, from the fact, that when the administrator was before this court at the September term, 1849, on a motion to discharge the referees on the rule, he was silent as to these objections, and does not make them before this court, until the report comes in.

The third exception is, that at the September term, 1849, an order was made on the record to the following effect: "5th day, rule amended, see agreement on file — continued." The administrator had objected to the referees already agreed upon; and the court, after deciding against the objection, suggested to the parties the propriety of adding two new referees, which was assented to by the parties, but not being able to agree upon the men, the above order was made, that the two additional referees might be agreed upon in vacation, and the rule amended in conformity to such agreement.

The parties afterwards met, but were not able to agree. It is not necessary for us to consider who was in fault. After the attempt to agree had failed, and before a subsequent term of the court, the referees cited the parties to appear before them, and they appeared and were heard, and thereupon the referees made their report to this court. Before the referees proceeded to hear the parties, the administrator protested against a trial at that time, and asked for a continuance. First, because of the differences between the writ and the petition, which we have already considered. Second, "because an amendment of the rule has been ordered by the court by consent of parties, with which order the respondents have been and are willing to comply, and the complainants are not; and, therefore, this rule should not be carried out to a hearing until further order of court."

The decision upon this exception turns upon the construction which we give to the order upon the record. If the order had been "rule amended," and nothing more, there would have been no doubt, such an order would have suspended all authority to act under the old rule. Then came the words, "see agreement on file," which explain how the rule was to be amended, and that is, by an agreement which the parties were to make and place on file. And unless the parties did agree and place the agreement on file, the old rule was to stand without amendment. The amendment, therefore, by the terms of the order, was entirely executory and contingent, dependent on the consent of both parties; and as the parties could not agree, no amendment could be made. If either of the parties, after the failure to agree, had asked the court to have this order taken off, the court would have ordered it done. The rule is not amended, and the contingency cannot happen by which it is to be amended; and the court, if in session, would have ordered the order stricken off the record upon the ground that it was a dead letter. Ought its remaining on the record, under these circumstances, to have the effect to suspend the power of the referees to act, and to avoid the report?

Suppose we set aside this report upon this ground, we should then order this order stricken from the record, and recommit the case to the same referees.

We think this would be giving to what was placed on the record, a very unreasonable construction, and doing great injustice.

Exceptions overruled.