ticed, in commenting on both in connection with each other. This course has, accordingly, been adopted.

Though selected by the parties, a referee cannot act until regularly appointed by the court; and, if he assume to do so, before his regular appointment has taken place, all his acts will, as of course, be a nullity.-Litchfield v. Burwell, 5 How. 341; 1 C. R. (N. S.) 42.

The sections of the Code which lay down rules as to the granting of references in general, and the cases upon that subject, have been cited in a previous chapter. The powers and duties of such referees, when duly appointed, and the mode of proceeding before them, will form the subject of the present.

A reference to report as to facts, for the information of the court, is usually to one party only, of the judge's selection, (see Conway v. Hitchins, 9 Barb. S. C. R. 378, as to his powers in this respect,) those of the whole issue are, on the contrary, more ordinarily made to three, chosen by the parties, or appointed by the court under the powers in sec. 273. In neither case, however, is the rule imperative. References of the latter nature are frequently made to a single party: whilst, in those of the former description, three are occasionally, though more rarely nominated.

The distinction between the powers and duties of general and special referees, is laid down in the case of Graves v. Blanchard, 4 How. 300, 3 C. R. 25, in the following terms: "A referee, under the Code, is not merely a substitute for the master under the former practice, but is clothed with the power of a judge at special term. When a specific question is referred to him, his office resembles that of a master; when the whole issue is referred to him, he takes the place of the court; his report thereon stands as its decision, and may be reviewed in like manner.

The same distinction is clearly drawn in sec. 272, by which the mode of trial, before referees, whether of the whole issue or of interlocutory questions, is laid down as follows:

§ 272. The trial by referees is conducted in the same manner, and on a similar notice, as a trial by the court. They have the same power to grant adjournments as the court upon such trial. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner; but not otherwise, and they may, in like manner, settle a case or exceptions. The report of the referees upon the whole

issue stands as the decision of the court, and judgment may be entered thereon, in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report has the effect of a special verdict.

In a subsequent portion of the Code, chap. XIV. title XII. of part II. sec. 421, the powers of referees are thus further declared:

§ 421. Every referee, appointed pursuant to this act, shall have power to administer oaths, in any proceeding before him, and shall have generally the powers now vested in a referee by law.

The mode of trial before the referees when appointed, and the effect of their report upon an interlocutory reference, both which important points had been left totally unprovided for in the measures of 1848 and 1849, are, for the first time, prescribed by the recent amendments. The courts had, however, been already feeling their way to the conclusions come to by the legislature.

All the cases under the late measures, agreed, in fact, in treating the form of trial before referees of the whole issue, as being substantially the same as that on a trial by the court. Thus, in Langley v. Hickman, 1 Sandf. S. C. R. 681, the court refused to entertain an application to postpone a trial before referees, on account of the non-attendance of a witness, on the ground that such postponement was a matter peculiarly within the province of the referees themselves. Their right to refuse to hear further testimony upon any particular point, on which sufficient evidence has already been given, is also laid down in Green v. Brown, 3 Barb. S. C. R. 119. In Schermerhorn v. Develin, 1 C. R. 28, the court, on similar principles, refused to interfere with the discretion of the referee as to the admission or rejection of evidence, even though its opinion was sought to be obtained at the latter's own request; and, in Allen v. Way, 3 C. R. 243, it was held that the referee was bound by the same rules in proceedings before him, as the court, upon the trial of a cause. It was accordingly laid down, that it is not competent for such referee to admit objectionable evidence at the time "de bene esse," and afterwards to reject it in forming his decision. His discretion over such interlocutory questions ceased with his decision of them, or, at least, with the actual trial of the case before him. He could not review his decision on such

questions afterwards, in the absence of the parties. In Graves v. Blanchard, 4 How. 300, 3 C. R. 25, before cited, the same general authority is laid down as above mentioned, in distinct terms, and the right of a referee of the whole issue to pass upon the question of costs, distinctly asserted. This last power was doubted in Van Valkenburgh v. Allendorph, 4 How. 39, but on apparently unsatisfactory grounds.

In Gould v. Chapin, 4 How. 185, and Howe v. Muir, 4 How. 252, it was, however, held that a referee had no power to pass upon the question as to whether an extra allowance ought or ought not to be granted under sec. 308. This conclusion seems, however, to be scarcely free from doubt. Under rule 86, the application for this purpose can only be made " to the court before which the trial is had or the judgment rendered," and the decisions in reference to that allowance, are almost all to the effect, that the application for that purpose ought to be made to the judge who has actually tried the cause; for the obvious reason that he, and he alone, is competent to form a judgment as to the propriety of that application, without what would amount to a fresh hearing of the case. The reasoning in Graves v. Blanchard, above cited, on the analogous question of granting or refusing costs, where they rest in the discretion of the court, is, indeed, directly opposed to this conclusion, and the fact that the report of the referees upon the whole issue is, by express provision, to stand as the decision of the court, and that judgment may be entered thereon as of course, without any further action on the part of the delegating tribunal, seems almost, if not entirely, decisive as to their full power to deal with all minor and subsidiary questions, during and consequent upon the actual hearing.

Under sec. 421, above cited, it is provided, that a referee, under the Code, "shall have generally the powers now vested in a referee by law." These powers will be found prescribed in article IV. title VI. chapter VI. of part III. of the Revised Statutes; 2 R. S. 383 to 386. The oath to be taken by such referees, previous to hearing testimony, is prescribed by sec. 44 of that article; and the party having the carriage of the reference, should, of course, see that this condition procedent has been properly complied with.

This last provision seems, however, to be only applicable to references of the whole issue, and not to those of an interlocu

tory nature. It may be convenient to draw the reader's attention to the enactments at 2 R. S. 88 to 91, with respect to the reference of claims against the estate of a deceased person, disputed by the executors; although the consideration of references of this last description in no respect falls within the plan of the present work.

The powers of a referee of an issue of fact being substantially the same as those of a jury, on the trial of a similar issue, the general rules of law as to the conduct and duties of jurors, under such circumstances, are equally applicable to them. Thus, in Yale v. Gwinits, 4 How. 253, a referee's report was set aside for irregularity, in consequence of his having examined some machinery there in question, in company with two of the plaintiff's witnesses, and of his having received explanations from such witnesses, without the knowledge or consent of the defendants; and this, although there seemed no reason to doubt his perfect good faith in the matter, and his perfect unconsciousness of any impropriety or irregularity in that line of conduct.

Though, in all substantial respects, similar to a trial by the court, the trial by referees is usually of more irregular continuance and of longer duration. When once commenced, a trial by the court is usually carried on to its conclusion as a consecutive proceeding, without any postponement or adjournment, save such as are absolutely and indispensably necessary, and then only "de die in diem." The trial before referees is, on the contrary, rarely so disposed of. It is, ordinarily, adjourned and resumed from time to time, at irregular and arbitrary intervals according to the convenience of the parties or of the referees, and is, in consequence, frequently spread over a comparatively prolonged period.

The provisions of the Revised Statutes in the article above cited, remain, for the most part, practically unrepealed, and the mode of conducting the proceedings before referees is, in all essential respects, the same as under the old practice. It would therefore be incompatible with the plan of the work, to go into full detail, or to give forms on the subject of those proceedings. The works on such practice should, on the contrary, be carefully consulted and strictly followed, both with regard to the forms to be used, and the practical directions given. A few general remarks, however, may not be inappropri

ate.

Of course, the first proceeding to be taken by the party having the conduct of the reference, is to notify the referees of their appointment, for which purpose a copy of the order should be served upon each. On receiving such notification, they must proceed with diligence to hear, and decide the matters, in controversy, (v. sec. 42 of the article of the revised statutes above cited,) and they have power to make use of the process of the court, in order to enforce the attendance of the witnesses before them, ss. 44 and 45.

They are bound to appoint a time and place for the hearing, and have full powers of adjournment of that hearing, from time to time, and, on the application of either party, and for good cause shown, they may postpone it to a time, not extending beyond the next term of the court in which the suit is pending; sec. 43. This power is extended by the Code, as above cited, and is now the same as that of the court, under similar circumstances.

Any one referee may administer an oath, but all must meet together, and hear all the proofs and allegations of the parties, and an adjournment cannot be granted except by the full number; any two, however, may make a report; sec. 46. The referees may be compelled by order to proceed, and to report on the matter submitted to them, and the court may require them to report any proceeding before them, and their reasons for allowing or disallowing any claim if necessary; sec. 47. In references consequent upon judgment in an action for an account, they may examine the parties upon oath, and may require the production of books, papers, or documents in the custody or under the control of either, and, in case of refusal, report the same to the court, which will thereupon proceed to enforce such production by the ordinary process of attachment, ss. 55 to 59. In other cases, they have no power to order the production of books and papers, where there is no provision to that effect in the order of reference. The power to order such production is limited to the court, or to a justice thereof. The certificate of a referee that the production of books and papers is necessary, will, however, be regarded as presumptively sufficient to warrant an order for their production, and the burden of showing the contrary will, in such case lie on the adverse party.-Frazer v. Phelps, 3 Sandf. S. C. R. 741, 1 C. R. (N. S.) 214. Care should