Where on the trial of cause, there was a verdict for the plaintiff, the defendants prepared a case with leave to turn it into a bill of exceptions, and intending to move for a new trial, both for misdirection of the judge, and because the verdict was against the weight of evidence. On motion by defendants to the judge who tried the cause, for an order that the case and exceptions might be first brought to a hearing at the general term, and for a stay of proceedings in the mean time, the court said, "Where there are exceptions to be argued, as well as a motion to set aside the verdict on the ground of the weight of evidence, it is a great convenience to parties, and a saving of time to the court, that the exceptions and motion be heard together.

"We think that in every case where, from the nature of the questions of law presented, or the amount in controversy, a decision at special term will not be likely to terminate the cause, the better practice is to order the case or bill of exceptions at once to the general term. The circumstance that there are facts to be examined as well as points of law, should make no difference. Especially ought this practice to be pursued, where the points of law were ruled adversely at the trial. An argument of the bill of exceptions at special term, is, in such a case, nothing more than an appeal from one judge to another in the same court, which should never be permitted where it can be avoided.

"Suitable terms can always be imposed, on staying the proceedings in cases like this; so that the party who succeeded at the trial shall not be deprived by the delay of the fruits of his verdict." Morris v. Brower, 4 Sand. S. C. R., 701.

Where the case is directed to be first heard at a general term, the successful party cannot have costs as on an appeal. Fellows v. Sheridan, 6 Pr. R., 419. See notes to sections 264 and 268.

SECTION 266.

CHAPTER IV.

Trial by the Court.

Trial by jury, how waived.

267. On trial by the court, judgment to be given in twenty days.
268. Exceptions, how and when taken.

269. Proceedings upon judgment on issue of law.

§ 266. [221.] (Amended 1849.) Trial by jury, how waived. -Trial by jury may be waived by the several parties, to an issue of fact, in actions on contract; and, with the assent of the court, in other actions, in the manner following.

1. By failing to appear at the trial.

2. By written consent, in person or by attorney, filed with the clerk.

3. By oral consent in open court, entered in the minutes.

Where a defendant did not serve an affidavit of merits, and did not appear on the cause being called for trial, the court after the discharge of the jury took an inquest; held, that it was irregular, and that the inquest should have been taken before the jury were discharged. Dickinson v. Kimball, 1 Code Rep., 83. Haines v. Davis, 1 Code Rep. N. S., 407; 6 Pr. R., 118.

"For it seems that even if the defendant had appeared before the trial, the inquest could not have been taken by a jury, because the inquest was not taken until the jury had been discharged; so soon as the jury had been discharged, there was no

right to a trial by jury to waive. I think the inquest should have been taken before the jury were discharged, so as to afford the defendant an opportunity in case he appeared, of claiming his right." Per Harris, J. Ib.

267. [222.] (Amended 1849.) On trial by the court, judgment to be given in twenty days.-Upon a trial of a question of fact by the court, its decision shall be given in writing and filed with the clerk, within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly.

This section is a substitute for a provision to the like effect in section 80, of the judiciary act of May 12, 1847; and under that act it was held that, when an issue of fact was tried before a judge without a jury, the finding of the judge was to be treated as if it were the verdict of a jury. Oshorn v. Marquand, 1 Sand. S. C. R., 457. Hoppe v. Robbe, 1 California Rep., 373. And where a motion was made to set aside the finding of a judge in such a case, as being against the weight of evidence, the court held that it would not interfere unless the preponderance of evidence was so great, that the verdict of a jury to the same effect on the same testimony would be set aside. Ib. In the supreme court, Hurlbut, J., in Doke v. Peek, 1 Code Rep., 54, said, "The legislature meant that the report should be more than a statement that so much is due, and that the referee should state the facts found, and then his conclusion of law upon them. The report of the referee is to stand as the decision of the court; and it was asked in the argument, whether a judge would have, by his decision, to state the facts found, and then his conclusions of law upon them? It must be observed, that there is a distinction between a decision of the court-that is, a judge-and the verdict of a jury. Since the code took effect, a trial by the court is very different from what it used to be. Before the code, it was only necessary to say, I find for the plaintiff or defendant. Now, I should say to the party in whose favor I decided, I find for you on all or some of the issues, draw up a special verdict, serve it on the adverse party, and within 20 days I will settle it; that would be the practice at nisi prius; it could not be expected of a judge that he is to prepare a special verdict. The referee must report the facts found before him; he may also report the evidence. Any report which does not report the facts found, will be sent back. A hearing before a referee, is the same as a judge trying without a jury. A judge will not draw the special verdict, but will require the party in whose favor he decides, to draw the special verdict, and to attend before him, on notice to the adverse party to settle same. It is a beneficial practice, that a referee's report contain the conclusions of fact arrived at by the referee. Under the former practice, the referee was frequently ordered by the court to state this, but now the code has obviated the necessity of any order from the court." And see note to chapter on trial by referees.

Upon the trial of an issue of fact by the court, the prevailing party on filing the decision of the judge may enter his judgment immediately. Lynde v. Cowenhoven, 4 Pr. R., 327. It was objected that the judgment roll could not be filed until after the time allowed to make a case (ten days) had expired, because the roll is to contain the case (section 281); but this objection was held not well taken, because, a case can be afterwards made and attached to the roll on file. Ib. and Renouil v. Harris, 2 Code Rep., 71; 2 Sand. S. C. R., 641, and where a party desires to make a case, he may on showing ground therefore, obtain an order staying proceedings on the judgment. Ib.

A special verdict or finding of a judge in the nature of a special verdict where trial by jury is waived, should find all the conclusions of fact, so as to leave nothing for further determination, except questions of law. Sisson v. Barrett, 2 Coms., 406.

In the case of an appeal, brought before the code went into effect, from a justice court to a county court, it appeared that the judge had decided the case in writing, but was accidently prevented from filing his decision within twenty days after the term of the court at which the appeal was heard, and that the judge considered he had no power, after the expiration of said twenty days, to file the decision, and there

fore refused to file it. On motion for an alternative mandamus, for the judge to show cause why he did not file such decision, the supreme court (Hand, J.) held that this section was directory only, and that the judge might file his decision at any time, People v. Dodge, 5 Pr. R., 47,-that it was not like the case of a justice of the peace taking time to give judgment after the cause had been submitted to him. Ib.

In Titus v. Hay (not reported), Roosevelt, J., at special term, in January, 1852, ordered judgment of foreclosure and sale. The decision was entered by the clerk, and by him endorsed on the back of the order. On a motion to set aside the order for sale (the judgment), it was held by Edmonds, J., at special term (28th February, 1852), that the provisions of this (267th) section, requires that the decision should either be in the handwriting of the judge or signed by him; and that the entry of the decision on the minutes by the clerk, or the filing of the decree in open court, under the direction of the judge, was not a compliance with the provisions of the code; and the judgment was set aside. On the 2d of March, 1852, Roosevelt, J., without any application of the parties, rescinded the order of Edmonds, J., and gave the parties liberty to appeal to the general term. The question was argued before the general term (Edwards, Mitchell, and Roosevelt, JJ.); and it decided (March 13, 1852) that the entry of the judgment was sufficient, and overruled the opinion of Edmonds, J. The curious reader may, on reference to the New York Herald of the 1st, 3d, and 14th of March, 1852, find the details of this case.

§ 268. [223.] (Amended 1851-1852.) Exceptions how and when taken. For the purpose of an appeal, either party may except to a decision on a matter of law arising upon such trial, within ten days after notice in writing of the judgment, in the same manner, and with the same effect as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice 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 judge in settling the case must briefly specify the facts found by him, and his conclusions of law. But the ques tions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section, the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the general term of the same court, as prescribed in section three hundred and forty-eight.

Before the amendment of 1852 this section read:

For the purposes of an appeal either party may except to a decision on a matter of law arising upon such trial, within ten days after notice, in writing, of the judgment, in the same manner, and with the same effect as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a bill of exceptions, or case containing so much of the evidence and such exceptions as may be material to the question to be raised. The bill of exceptions or case shall be settled "as provided by the rules of the court." And the judge in settling such case shall briefly specify the facts found by him and his conclusions of law. All the parts in italic were new in the code of 1851. The words " as provided by the rules of the court." were substituted for the words "according to the existing practice."

The rules of court providing for the settlement &c., of cases, are rules 15 to 19, inclusive, of the supreme court rules.

The section, before amendment of 1851, was identical with section 223 of the code of 1848. Under that section, where a defendant in due time gave notice that he excepted" to the decision of the referee, whereby he decided that there was due from the defendant to the plaintiff the sum, &c.," and served a case (not verified), to obtain a review upon the evidence. On objection to this notice and case, the court, Harris, Watson, and Parker, JJ., held, that the notice was equivalent to an excep. tion to the conclusion of law derived by the referee from the facts found by him, and if so, it is sufficient to entitle them to a review of such decision upon appeal. The case may be, and probably is irregular, for not being verified as required by the 44th rule of supreme court law rules of 1847. Wilson v. Allen, 3 Pr. R., 369. But since that case was decided, the 44th rule, there referred to, has been_abrogated, and a case need not now be verified. Code, s. 470. Supreme Court Rules, 15 to 18 See, further, notes to section 265 of this code, and to sections 7 and 8 of the act supplementary to the code, post.

§ 269. [224.] (Amended 1849-1851.)-Proceedings upon judgment on issue of law.-On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two subdivisions of section two hundred and forty-six, upon the failure of the defendant to answer, where the summons was personally served. If judgment be for the defendant, upon an issue of law, and taking of an account, or the proof of any fact be necessary to enable the court to complete the judgment, a reference or assessment by a jury may be ordered, as in that section provided.

This section before the amendment of 1851, was as follows: On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by section 246, in cases where the summons or summons and complaint are personally served, and the complaint sworn to, upon the failure of the defendant to answer. If judgment be for the defendant, upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference may be ordered, or writ of inquiry issued, as in that section provided.

The decision of the court upon a demurrer cannot be appealed from as an order; it is a judgment, and no appeal can be taken until the judgment is perfected. A defendant who has appeared is entitled to notice of settling the judgment.

Thus, where the complaint was to set aside an assignment as fraudulent, the defendant demurred, and his demurrer was overruled. The defendant appealed before judgment was perfected. The plaintiff, without notice to the defendant, proceeded to settle and perfect his judgment. The plaintiff moved to dismiss the appeal and the defendant to vacate the judgment, and both motions were granted. Wood v. Lambert, 1 Code Rep. N. S., 214.

See, King v. Stafford, 5 Pr. R., 30. Bentley v. Jones. 3 Code Rep., 37; Nellis 1. De Forrest, 6 Pr. R., 413; Reynolds v. Freeman, 4 Sand. S. C. R, 702.

$270. [225.] All issues referable by consent.—All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties.

* The following is an abstract of the present law and practice of trials before referees:

Referee defined.

A referee is "a person to whom a cause pending in a court, is referred by the court, to take testimony, hear the parties, and report thereon to the court, and upon whose report, if confirmed, judgment is entered. Burrill's Law Dict., tit. Referee.

A referee under the code is not merely a substitute for a 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. Per Willard, J., in Graves v. Blanchard, 3 Code Rep., 27; 4 Pr. R., 303.

By the former rules of the supreme court (rule 88), a justice of that court was prohibited from acting as a referee in any matter pending in that court. That rule was struck out at the revision of the rules in August, 1852, but whether or not a supreme court judge may now act as a referee in an action in that court is an undecided question. We suppose he lawfully may, but we think he ought not.

Reference defined.

A reference is a legislative substitute for a trial by jury. Per Spencer, J., 12 Johns. R., 218

Where a rule of court was entered by consent of the parties, referring the cause to three referees "to hear and determine the matters in controversy, on legal and equitable principles," it was held that such reference took the cause out of court, was in fact an arbitration, and that the report of the referees was an award. Blunt v. Whitney, 3 Sand. S. C. R., 4.

A referee is not a mere instrument to hear and report testimony, often voluminous and contradictory; but he is to report the facts as he has found them. Barnard v. Spofford, 31 Maine Rep., 39.

Powers of Referees.

The power of a referee in regard to causes referred to him to hear and decide, is not essentially enlarged or altered by the code. Holmes v. Slocum, 6 Pr. R., 218. 1 Code Rep., N. S. 380.

Where a cause is referred to a referee, to hear and decide the whole issue, he is invested with all the necessary power and authority over the cause and over the parties, to enable him to hear and determine every thing which properly belongs to the trial of the cause. Ib.

He is to try the issue which the court sends him to be tried. For every other purpose the action and the parties remain in court. The referee has no right to order