same manner as if the action had been tried by the court.

1851, it was held, that after judgment has been entered on a report of a referee the only mode of reviewing such report is by an appeal from the judgment.

a. The report of a referee, dismissing a complaint on an issue of law, is a report on the whole issue, and is to be appealed from as such. Donohue v. Champlin, 1 Code Rep. N. S., 138.

b. By Rule 13 of the Superior Court Rules it is provided, that the party who moves for the review of a cause or matter decided by a referee shall procure and furnish to the court a special report of the referee, setting forth distinctly the facts found on the reference, and his decision upon the points of law arising in the cause.

Of the entry of judgment on a report of referees.

c. Formerly, judgment could not be entered on the report of referees until the time for preparing and serving a case had expired; but now judgment may be entered on the report of referees, in the same manner as if the action had been tried by the court (Code, s. 272); and on a trial by the court "judgment upon the decision is to be given accordingly" (Code, s. 267); and judgment must be entered on the report of referees (Code, s. 278).

d. Upon these provisions, after some little doubt and conflict of decision, it is now well settled, that on the report of a referee on the whole issue, unless the opposite party obtain an order to stay his proceedings or to set aside the report for irregularity, the party in whose favor the report is made may file same with the clerk, and proceed immediately to perfect his judgment, the only delay being the two days' notice of adjusting costs. Renouil v. Harris, 1 Code Rep., 125; Clark v. Andrews, 1 ib., 4; Doke v. Peek, 1 ib., 54.

c. Where a case involving, among other facts, the existence of a copartnership, is referred, and the referee reports that a copartnership does exist, and that an account ought to be taken, the party in whose favor such report is made cannot, on filing the report, enter an order dissolving the copartnership and directing an account. ing. The party should give notice of motion to confirm the report, and for an order to take an account. Bantes v. Brady, 7 Pr. R., 216.

f. When a reference has been made of a collateral matter, in order to carry a judgment into effect, the report of the referee must be confirmed, upon motion, at special term. Belmont v. Smith, 1 Duer, 675.

g. When a referee reports that nothing is due the plaintiff, and it appears from his report that the case was not heard before him, but that his decision is founded upon the default in appearance of the plaintiff on the day appointed for the hearing, the proper judgment to be entered is a dismissal of the complaint, not an absolute judgment as upon a verdict. The judgment ought no more to be an absolute bar in such a case, than in that of a nonsuit upon the trial. Salter v. Malcolm, 1 Duer, 596.

h. Where, after the report of a referee in favor of the defendant, and Lefore judgment is entered thereon, the plaintiff in the action dies, judgment may be entered thereon without making the plaintiff's representatives parties to the suit. Scranton v. Baxter, 1 Code Rep. N. S., 88.

i. A judgment rendered upon a report of referees who have adjudicated matters legally submitted to their determination, is equally valid as when founded upon a verdict. Pease v. Whetton, 31 Maine Rep., 117.

j. Notice in writing of the entry of the judgment should be forthwith given to the judgment debtor, as his time for appealing does not commence to run until the service of such notice. Code, s. 268.

Reviewing the judgment on report of referees.

k. Either the party in whose favor the report is made, or the party against whom the report is made, may, if sufficient cause exist therefor, review the judgment on

When the reference is to report the facts, the report has the effect of a special verdict.

a. This section, before the amendment of 1851, was as follows: "The report of the referees upon the whole issue shall stand 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; and their decision may be excepted to and reviewed in like manner, or a re-hearing may be granted by the court in which the judgment is entered."

b. The amendment of 1852 was the addition of the words printed in italic.

such report. Under the code of 1849 a report of a referee might be reviewed either on a motion for a rehearing to be made at the special term, or by an appeal to the general term from the judgment entered on such report. Haight v. Prince, 2 Code Rep, 95; Leggett v. Mott, 3 Code Rep. 5; Nones v. Hope Mut. Ins. Co., ib., 192; Pepper v. Goulding, ib., 29; Crist v. Dry Dock B'k, ib., 118, 142; Enos v. Thomas, 5 Pr. R., 164. Or the report might be set aside for irregularity in its form, or in the conduct of the referees pending the reference. Crist v. Dry Dock B'k, 3 Code Rep., 142; Hatfield v. Ross, ib.; Doke v. Peek, 1 Code Rep., 55.

c. The amendments of 1851 and 1852 seem to have abrogated the right to move for a re-hearing; and now the only mode of reviewing a report of a referee is by an appeal from the judgment entered thereon (Code, s. 272), or by a motion to set it aside for irregularity, either in its form or in the conduct of the referee pending the reference. Crist v. Dry Dock B'k, Hatfield v. Ross, and Doke v. Peek, supra. Church v. Rhodes, 6 Pr. R., 281; Simmons v. Johnson, ib., 489.

d. If the appeal is desired to be had in respect of exceptions to the decision of the referee on a matter of law arising and taken during the trial, the party excepting may, within ten days after notice in writing of the judgment, appeal therefrom to the general term. Or, if a review upon the evidence appearing in the trial, either of the questions of fact or of law, be desired, the party desiring such review may, at any time within ten days after notice in writing of the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions, in like manner as upon a trial by jury, except that the referee, in settling the case, must briefly specify the facts found by him, and his conclusions of law. But questions, whether of fact or of law, arising on the trial, can only be reviewed in the manner prescribed by section 268; the questions of law in every state of the appeal, and the questions of fact upon the appeal to the general term of the court in which the action is pending, as prescribed in section 348.

e. The appeal must be brought within thirty days (s. 332), and the time cannot be enlarged. (s. 405.)

f. The appeal is to the general term, and must be taken as prescribed by sections 268, 327, and 348. The review is either at the special or general term, according to circumstances.

g. When the object of the appeal is to question the finding of the referee upon the facts, the case becomes analogous to a motion under the former practice to set aside the report of referees as against evidence. Van Steenburg v. Hoffman, 15 Barb., 31.

h. Where the ground of appeal appears on the face of the referee's report, there no exceptions or case will be necessary; but one or the other will be necessary in all other cases; and, where a case is necessary, the referee, in settling it, is briefly to state the facts found by him, and his conclusions of law. If a case be adopted care should be taken that it contains a stipulation for leave to turn it into a special verdict or exceptions (Supreme Court Rule 18); without such a stipulation the court will seldom allow a case to be turned into a bill of exceptions. Masters v. Bailey, 1 Pr. R., 42; Smith v. Caswell, 2 Code Rep., 148; Hammond v. Hazard, 1 Smith, 314.

i. The case is to be prepared by the party intending to make the motion, and a copy is to be served on the opposite party within ten days after notice of the judgment. The lines of the case and copy must be numbered that each copy shall correspond. (Supreme Court Rule 15; 1 Pr. R., 8-42; 2 ib., 102; and as to form of

$273. [228.] (Amended 1849-1851.) Referees, how chosen. In all cases of reference, the parties, except when an infant

bills of exception, see Price v Powell, 3 Coms., 332; Zabriskie v. Smith, 1 Kernan, 480.

a. The fact, that upon the hearing of a cause before a referee, a party excepts to the decisions of the referee, and those exceptions appear in the case made for the purpose of obtaining a new trial, does not make it a bill of exceptions. It seems it is to be treated as a case. Allen v. Way, 3 Code Rep., 243.

b. The party on whom the case is served, may within ten days prepare amendments thereto, and serve the same on the party who prepared the case. The party who prepared the case may within four days after service of the amendments, serve the opposite party with a notice to appear within a convenient time before the referees, to have the case and amendments settled. The notice must specify the time and place for attending to settle the case, and the time of settlement is to be not less than four, nor more than twenty days from the time of the service of the notice. At the time and place specified, the referees are to correct and settle the case as they shall deem to consist with the truth of the facts. If the party omit to make the case within the time above limited, he is deemed to have waived his right thereto; and if a party on whom a case is served omit to serve amendments within the time above specified, he is deemed to have waived his right to make any amendments thereto; and if the party on whom the proposed amendments are duly served, omit to notice the case for settlement within the time above specified, he is deemed to have adopted such amendments. The case is to be filed within ten days after the same is settled, or it is deemed abandoned. (See Supreme Court Rules 15, 16, 17, 19.) The case when filed is to be attached to and become part of the judgment roll. Renouil v. Harris, 1 Code Rep. 125; 3 Ib., 7; 6 Pr. R.

285.

c. An order for time to make a case is not a stay of proceedings. Huff v. Bennett, 2 Code Rep., 139.

d. By the 13th of the Superior Court Rules, of January, 1851, the party moving to review a matter decided by a referee, is to procure and furnish the court with a special report of the referee, setting forth the facts found and his decisions of law thereon. (See Code, s. 272.) An appeal from a judgment on a report of a referee does not stay the proceedings, unless the court in which the action is pending, or a judge thereof, order a stay of proceedings; which order is to be made upon such terms as to security, or otherwise, as may be just. Such security not to exceed the amount required on an appeal to the court of appeals. Code, s. 348.

e. An exception taken on a trial before a referee, although inserted in the case, but not argued nor mentioned on the points, will be regarded as abandoned (Flanders v. Crolius, 1 Duer, 209); and an inference to the same effect may be deduced from Brown v. Colie, 1 Smith, 269.

f. When exceptions are filed to a report of a referee, they must be heard not as I calendar cause, but as a non-enumerated motion. Belmont v. Smith, 1 Duer, 675.

g. When a case comes before the court of appeals on appeal from a judgment rendered on the report of a referee, where there are no exceptions, and no distinct question of law appears to have been presented and passed upon by the referee, the only question for review is, whether the facts found by him are sufficient to sustain the judgment. Keegan v. Western R. R. Co., 4 Selden, 175.

h. On an appeal from a judgment rendered upon the report of a referee, the court of appeals cannot review questions which were not raised before the referee, although they have been raised in the argument of a motion to set aside the report at general term. Morris v. Husson, 4 Selden, 204.

i. An appeal from a judgment upon the report of referees, does not bring before the appellate court for review the finding of the referees upon the facts; it only invokes the supervisory authority of the appellate court upon the single question:

may be a party, may agree upon a suitable person, or persons, not exceeding three, and the reference shall be ordered ac

Have the court below erred in their conclusion upon the facts proved? Morgan v. Bruce, 1 Code Rep., N. S., 364.

a. This was the practice prior to the amendment of the code in 1851, and that amendment has not changed the practice in this respect. Ib.

b. An appeal from a judgment, whether on a report of referees or otherwise, brings before the appellate court only the determination of the court below upon the facts, and its interlocutory decisions upon the questions of law upon which the final determination depends. Ib.

c. The finding of a referee upon questions of fact, will not be reviewed on appeal to the general term. Orchard v. Cross, 12 Barb., 294.

d. On an appeal from a judgment on a report of referees, no security is necessary, except for the purpose of staying proceedings. Dorlon v. Lewis, 7 Pr. R., 132; Ten Broeck v. Hudson R. R. R. Co., Ib., 137.

e. If a party appealing from the judgment entered upon a report of a referee would have proceedings stayed upon the judgment, he must either give the security prescribed by the 348th section, or obtain an order staying the proceedings from the court or a judge. Steam Navigation Company v. Weed, 8 Pr. R., 50.

f. The court may make an ex parte order, staying the proceedings on the judg ment; but if the application for the order is made to a judge out of court, the most he is authorized to do, is to make an order that the adverse party show cause, before himself or some other judge, or some court having authority to entertain the application, why the proceedings should not be stayed until the case can be heard and decided upon the appeal, and staying proceedings in the mean time. The last paragraph of section 401 applies to such order. Steam Navigation Co. v. Weed, 8 Pr. R.,

50.

g. The denial of leave to file exceptions to the referee's report is clearly a matter of discretion, and cannot be the subject of appeal to the court of appeals. King v. Merchants' Ex. Co., 1 Selden, 556.

h. The court of appeals cannot review the decision of a referee, or the judgment of a subordinate court, where the error is one of fact merely, however clearly the finding may have been against the testimony. Borst v. Spelman, 4 Coms., 284.

i. A refusal of a referee to adjourn the hearing before him, where it is a matter resting in his discretion, will not be reviewed on an appeal to the court of appeals. Carpenter v. Haynes, 1 Code Rep., N. S., 414.

Referees Fees.

j. The fees of referees are three dollars a day to each, for every day spent in the business of the reference; but the parties may agree in writing for any other rate of compensation. Code s. 313.

k. By the revised statutes, the referees' fees were two dollars a day each, for each day spent in the business of the reference; and one dollar a day for his expenses, to be paid on making their report, by the prevailing party. For drawing, copying, and signing a report, they were allowed the same fees as were allowed to attorneys for similar services; and payments for expense of room-rent, fire, and candles, on the hearing, was a proper item of taxation, and an allowance of one dollar a day for expenses was considered reasonable. 10 Wend., 622. In the case of Harris v. Bennett, in the supreme court (not reported), the cause had been referred. There was no stipulation as to the referees' fees. The hearing was on a number of days, and each sitting was of about an hour's duration, and not one occupied an entire day. The sittings were in the referee's office, and were usually terminated not at the request of the parties, but by the referee. Some of the meetings were by adjournment, and

cordingly; and, if the parties do not agree, the court shall ap

some were on new notice. The referee reported in favor of the plaintiff, and on the taxation of the costs the clerk allowed $4 for the referee's fee on each sitting, being $3 for the referee and $1 for room-rent; also $10 for each new notice of hearing. This last item was allowed on the authority of Benton v. Bugnall, 1 Code Rep. N. S., 229, where it was held that the prevailing party may tax a term fee of $10 for each notice of hearing before the referee. The falling through of a hearing, and the giving a new notice is equivalent to noticing a cause for a term; where the reference, however, is continued by successive adjournments, the party can tax but for one notice of hearing. The rule may be stated thus: The prevailing party on a reference, cannot tax a term fee of $10 for each term of the court that may have elapsed pending the reference; but a term fee may be taxed for each notice of hearing. This was the practice before the code, and the practice remains unchanged. The defend. ant (in Harris v. Bennett), appealed the taxation, and Roosevelt, J., on deciding the motion, said, "The next objection made by the defendant, is to the several charges of ten dollars each-amounting, in the aggregate, to-dollars-for postponed hearings before the referee. It is conceded that there is no law expressly authorizing those items. They can only be sustained, if at all, by analogy. When allowed,' says the code, section 307, 'costs shall be as follows (enumerating several cases, and among them an actual trial, whether by court or referee, and closing with the following subdivision):-8. To either party for every circuit or term at which the cause is necessarily on the calendar, and not reached, or is postponed, excluding that at which it is tried or heard, ten dollars.' This language is clearly inapplicable to a referee. He holds neither circuit nor term, nor has he, in legal speech, a calendar. When he assigns a day for hearing, he is presumed to be ready on that day; and if a postponement takes place, it is usually at the instance of one or both of the parties. Having set apart that particular day for that particular cause, he can fairly be said, in the language of the code, section 313, to have spent a day in the business of the reference, and to be entitled, as a consequence, to his fee of three dollars.' Not so with the parties. Again, an attendance at the term or circuit is usually au affair of weeks, and sometimes even months, whereas, before a referee, the ten-dollar fee is claimed for each single day. If the multiplication of circuit fees, in cases not reached or postponed, be complained of as an oppressive abuse, what must be the inevitable result of a practice of daily charges for daily abortive meetings before referees, of ten dollars to the attorney in addition to three to the referee? The system of references, already viewed with alarm, on account of its expensiveness, must, like its predecessor, the master's office, inevitably break down under such a practice. The code, it should be recollected, so far as respects attorneys and counsel, abolishes the old fee bill in all its parts, and prescribes a comparatively few simple items to be allowed in its stead. If that, too, is to be tortured by ingenuity, and stretched by construction, little will have been gained in the way of reform, unless it be the substitution of one abuse for another. As these remarks apply with equal force to the next item complained of-the charge of office rent at the rate of one dollar per day, in addition to the three dollars expressly provided for-that charge, as well as the several charges of ten dollars each, above-mentioned, must be stricken out. With respect to the charge for office rent, it may be further observed that, by the former law, referees were expressly allowed two dollars each per day for services, and one for expenses. It may fairly be inferred, therefore, that the framers of the code, in raising the compensation from two to three dollars, and omitting all mention of expenses,' intended the enhanced allowance to be an equivalent for both. It is true that in section 311, it is provided that the clerk, in the entry of judgment, shall insert the sum of the charges for costs, as above, and the necessary disbursements and fees of officers allowed by law, including the compensation of referees; but this does not alter the case, unless it be shown-as it is not-first, that the rent was actually and necessarily paid by the referee, for that particular purpose; and secondly, that it is 'a disbursement allowed by law.' So far from being allowed by any particular law, the repeal of the old provision of the revised statutes, for the payment of the expenses of referees, may fairly be construed as equivalent to an

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