therefore be taken to have a direction to the foregoing effect inserted in the original order, in all cases where such production is likely to be required. If the necessity arise subsequently, the obtaining a certificate as above, and an application to the court grounded thereon, will be requisite. In case of a refusal to produce, a special application to the court appears then to be the only course. The referees have no power of their own authority, to issue process of contempt. The office of the referees being in its nature judicial, they cannot testify, under any circumstances, in the course of the proceedings pending before them.-Morss v. Morss, 1 C. R. (N. S.) 374; 10 L. O. 151.

Due notice should be given to the opposite party, of the original appointment for hearing by the referee, and of each adjournment.

No time is positively prescribed, but at least the same notice ought to be given of the first hearing, as on the case being tried by the court.-See Williams v. Sage, 1 C. R. (N. S.) 358. The form of proceeding is the same, “mutatis mutandis,” as on an ordinary trial; the case is regularly opened, proved, and summed up at the meeting or meetings, in proper form, and in a consecutive manner. All interlocutory points should be decided at the time, and exceptions to such decisions may be taken, and should be noted precisely as in the case of trial by the court.-V. Demin v. Post, 1 C. R. 121.

The referees, in fact, stand in the place of the single judge, for all purposes; and all that must, or may be done before or by such judge, during the hearing, ought, in regularity, to be also done before or by them. Under the Code of 1849, it was held, that a referee, in the proceedings before him, is bound by the same rules as to the admission or rejection of evidence as a judge upon the trial of a cause. He cannot admit such evidence de bene esse at the time, and afterwards state that he has rejected it in forming his decision. "His discretion, as well as his authority over interlocutory questions arising in the course of the trial, ceases with his decision of them, or at least with the trial itself." He cannot review his decision on them afterwards, in the absence of the parties: Allen v Way, 3 C. R. 243, above cited. This principle is fully carried out by the late amendment.

By rule 25, of the supreme court, it is specially provided that

on a hearing before referees, the plaintiff may submit to a non

Page 405, line 1.

By the recent amendment of this rule, now Rule 22, the powers here given in relation to a nonsuit are extended to a dismissal of the complaint.

glect to proceed with the cause before the referee, has given rise to some discussion. In Holmes v. Slocum, 6 How. 217, 1 C. R. (N. S.) 380, it was held, that, under these circumstances, the defendant cannot take a report that he is entitled to a dismissal of the complaint, and enter up judgment on that report, as of course. The referee "is invested with all the necessary power and authority, over the cause and over the parties, to enable him to hear and determine everything which properly belongs to the trial of the cause. He is to try the issue which the court sends to him to be tried. But for every other purpose, the action and the parties remain in court." The referee, it was accordingly held, had no power to order an amendment of the pleadings, so as to change the issue, or to dismiss the complaint and turn the plaintiff out of court for unreasonable neglect to proceed in the cause. "These are mere matters of practice, which belong to the court, and over which the referee has no jurisdiction." Rule 43 of the late rules of the supreme court is then referred to, by which it was provided that "after a cause has been referred, if the plaintiff does not bring the same to a hearing within forty days after the reference is ordered, the defendant may serve the plaintiff with a notice, requiring him to bring the cause to a hearing within forty days thereafter, and if the plaintiff fail to comply with such notice, the defendant may move the court for judgment as in case of non-suit." After citing the above rule, the learned judge added," as the rules of 1849 make no specific provision upon this subject, I apprehend the former practice is still in force, under the general provisions of rule 92," and such would seem to be the better conclusion, and a proceeding, in strict compliance with that rule, the better practice.

The case of Williams v. Sage, 1 C. R. (N. S.) 358, was different from the foregoing, in that the reference had there been entered upon in part, though the plaintiff afterwards refused to proceed, on discovering that his proceedings were defective, and required amendment. A precisely contrary conclusion to that in Holmes v. Slocum, was, however, come to, and a motion

to dismiss for unreasonable delay was denied, the court holding that either party may notice an action for trial before referees, and proceed upon that notice, precisely as on a trial by the court; and that the referee, in that case, should have proceeded upon the defendant's notice, and, in the absence of evidence on the part of the plaintiff, reported in favor of the former.

Evidence having been actually given in Williams v. Sage, the decision falls evidently within the general principle as laid down in Holmes v. Slocum, that a referee "may non-suit a plaintiff upon a trial, because his proof does not sustain his cause of action;" and the conflict between the two decisions is, therefore, more apparent than real, as far as their results are concerned. In cases, however, in which the reference has not been proceeded with at all, the difference between the two opinions is irreconcilable, and the question an open one, until settled by further authority. The view taken in Holmes v. Slocum, seems, however, the safer to be acted upon in the meantime, in cases of the latter description.

The trial, or hearing before the referees having been brought to a conclusion, their report must then be made. Any two, as above stated, are competent to make that report, though all must be present at the actual hearing. Where any time is prescribed in the order of the court, within which the report must be made, that direction must of course be strictly complied with; as, otherwise, the referees' authority, unless subsequently extended, will be gone, and their subsequent proceedings invalid.

The referees themselves draw their report, and their fees must be paid by the prevailing party, on taking it up. These fees are fixed by sec. 313, at three dollars, as a minimum rate, to each referee, for every day spent in the business of the reference; but the parties may agree, in writing, upon any other rate of compensation.

It seems from Lamoureux v. Morris, 4 How. 245, that the attorney in a proceeding, is not personally liable to a referee for the payment of his fees. See Howell v. Kinney, 1 How. 105. The latter may, however, practically enforce their payment, by refusing to deliver over their report, until they are duly satisfied. By sec. 314, referees are clothed with special power to impose the payment of costs not exceeding ten dollars, as the condition of granting any postponement of a trial, when applied for.

Any defect in the original appointment of a referee, will be waived by the parties proceeding before him without objection; and, having done so, they will not be permitted to raise such objection afterwards.-Renouil v. Harris, 2 Sandf. S. C. R. 641; 1 C. R. 125. The same doctrine was also held by the court in Garcie v. Sheldon, 3 Barb. S. C. R. 232, save only as regards the point that the court had no jurisdiction to make the order of reference. That objection may be raised at any time.

A reference "of this cause," without limitation, embraces all the issues, both of law or fact therein, and the referees will have power to report upon the whole of such issues.-Renouil v. Harris, 1 C. R. 125, 2 Sandf. S. C. R. 641, above cited. See also Graves v. Blanchard, 4 How. 300, 3 C. R. 25, before referred to.

A rule of court, by consent, referring to referees "to hear and determine the matters in controversy on legal and equitable principles," was, however, held, in Blunt v. Whitney, 3 Sandf. S. C. R. 4, to be, not a reference, but an arbitration; and a motion to set aside the report made, was accordingly dismissed for want of jurisdiction. The decision of questions by arbitration, is entirely and exclusively a proceeding under the old practice, and is in no manner affected by the Code, or any of the decisions under it.

By sec. 272, as it now stands, the form of the report is distinctly prescribed. "It must state the facts found, and the conclusions of law, separately." The Codes of 1848 and 1849, contained no directions of this nature, but the decisions under those Codes had previously laid down the same principles. Thus it was held that a referee, in his report, must set out the facts proved by the evidence before him, and his conclusion of law upon those facts; and he may also report the evidence. If he omit to do this, his report will be irregular, and, with the proceedings under it, will be set aside.-Doke v. Peek, 1 C. R. 54. It is also laid down, that the report is "to contain the facts found, and the conclusions of law thereon, in Mucklethwaite v. Weiser, 1 C. R. 61, and to the same effect, in Deming v. Post, 1 C. R. 121. Reports of the mere sum due, without finding the facts, were accordingly set aside in the first and last of those cases. Although, where necessary, the referee may report the evidence in addition, he must, in all cases, report the facts, and he is not at liberty to report the former alone without the latter.

-Dorr v. Noxon, 5 How. 29. In preparing his report, the referee cannot review his interlocutory decisions during the progress of the cause, nor can he, in forming his conclusion, reject evidence which he has admitted "de bene esse" during the progress of the hearing.-V. Allen v. Way, 3 C. R. 243, before cited.

If a report, generally regular, be defective in not reporting on some one particular issue, it seems that it may be amended almost as of course.-V. Renouil v. Harris, 2 Sandf. S. C. R. 641; 1 C. R. 125.

It appears from the case of Walkins v. Stevens, 4 Barb. S. C. R. 168, that the report of referees, like the verdict of a jury, is, as a general rule, conclusive in a case of conflict of evidence, unless some principle of law has been violated. See also Green v. Brown, 3 Barb. S. C. R. 119, and Baker v. Martin, 3 Barb. S. C. R. 634; Spencer v. The Utica and Schenectady R. R. Company, 5 Barb. S. C. R. 337; Camp v. Pulver, Ibid. 91; Quackenbush v. Ehle, Ibid. 469; Durkee v. Mott, 8 Barb. S. C. R. 423, and Hayes v. Symonds, 9 Barb. S. C. R. 260. The contrary doctrine is, however, laid down, as regards equity cases, in Burhans v. Van Zandt, 7 Barb. S. C. R. 91.

It was there held that such a report was like the report of a master, or the decision of a vice-chancellor, upon any matter referred; where, upon exceptions or appeal, all questions decided, whether of fact or of law, were the subjects of review.

Under the Codes of 1848 and 1849, in which no express provision was made on the subject, it was doubted whether judgment could or could not be entered upon the report of referees upon the whole issue, without any further direction by the court. In Clark v. Andrews, 1 C. R. 4, and Deming v. Post, 1 C. R. 121, it was held that it was necessary to obtain such direction. In Renouil v. Harris, 2 Sandf. S. C. R. 641, 1 C. R. 125, the contrary was maintained; and the practice was settled accordingly, by rule 24, which provides that, on filing such a report, judgment may be entered as a matter of course. This provision is further carried out by the last amendment of section 272.

It is otherwise, however, with regard to reports of facts for the information of the court, either before or after judgment. All reports of this nature must, in all cases, be confirmed, before any further action can be taken upon them. "If the refer