term of such court, and the court shall hear and decide the

same.

This section before amendment was as follows: Judgment shall be entered by the clerk, in conformity to the verdict, which shall be final after the expiration of four days, unless the court or a judge thereof order the case to be reserved for argument or further consideration, or grant a stay of proceedings.

See note to the preceding section.

CHAPTER IV.

Trial by the Court.

SECTION 266. 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.] 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. Dicinkson v. Kimball, 1 Code Rep., 83.

"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 an inquest 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.] 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. Osborn v. Marquand, i Sand. S. C. R., 457.

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.

nas (1) Tas Jade to set aside the finding of a judge in such a case as - tegi Devidence, the court held that it would not interfere, unavuruce was so great, that the verdict of a jury to the

e saule (est. Joey would be set aside. Ib.

Court, Djuribut, J, in Doke v. Peek, 1 Code Rep., 54, said: means that the report should be more than a statement that so

11s de teleree should state the facts found, and then his conclu11. The report of the referee is to stand as the decision of the

as used in the argument, whether a judge would have by his decisedie leicts found, and then his conclusions of law upon them? It must wise, that there is a distinction between a decision of the court; that is, a he verdict of a jury. Since the code took effect, a trial by the court is Liderul rom what it used to be. Before the code it was only necessary to 1 for the plaintiff or defendant. Now, I should say to the party in whose decided, I find for you on all or some of the issues, draw up a special verdict, o the adverse party, and within 20 days I will settle it; that would be the acute at Nisi Prius; it could not be expected of a judge that he is to prepare Veli Peru.ct. The referee must report the facts found before him; he may also pe cvidence. Any report which does not report the facts found, will be sent yearing before a referee, is the same as a judge trying without a jury. A age win not draw the special verdict, but will require the party in whose favor he hdraw the special verdict, and to attend before him, on notice to the adverse sectie same. It is a beneficial practice, that a referee's report contain the aldus 2. fact arrived at by the referee. Under the former practice, the reya qady ordered by the court to state this, but now the code has obvimeccssay of any order from the court." And see note to chapter on trial

14. of an issue of fact by the court, the prevailing party on filing the zo way enter his judgment immediately. Lynde v. Cowenhoven, was ected that the judgment roll could not be filed until after mcá và Jake a case (ten days) had expired, because the roll is to con8.2 2. but this objection was held not well taken, because, a aus made and attached to the roll on file. Ib. and Renouil v. 2 Sand. S. C. R., 641, and where a party desires to as showing ground therefore, obtain an order staying proceedve on how ng of a judge in the nature of a special verdict where save had all the conclusions of fact, so as to leave nothing cacco questions of law. Sisson v. Barrett, 2 Coms., 406. www.ought before the code went into effect, from a justice ared that the judge had decided the case in writing, om filing his decision within twenty days after the appeal was heard, and that the judge considered he sov seva of said twenty days, to file the decision, and thereo for an alternative mandamus, for the judge to decision, the supreme court (Hand, J.) held that that the judge might give his decision at any 47. That it was not like the case of a justice of eat after the cause had been subinitted to him.

Exceptions how and when taken. l either party may except to a arising upon such trial, within ten the judgment, in the same mano as upon a trial by jury. And pon the evidence appearing on ang 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 are new. The words "as provided by the rules of the court," are substituted for the words "according to the existing practice." The rules of court providing for the settlement of cases, are rules 15 to 18 inclusive, of the supreme court rules. The section, before amendment, 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 exception 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., 369-373. But since that case was decided, the 44th rule there referred to has been abrogated, and a case need not now be verified. Code, sec. 470. Supreme Court Rules, 15 to 18. See, further, notes to sections 7 and 8 of the act supplementary to the code, post. And see rules of supreme court, 15 to 21 inclusive.

§ 269. [224.] (Amended.)-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 amendment was as follows; On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the same 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 defendaut, 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. See section 263 of this code.

14

time.

the per Ib.

-For decisi

days a

ner, ar

either p the trial.

pulsorily ordered.

by consent.-All or any per of fact or of law, or both, en consent of the parties.

resent law and practice of trials before -san 'o whom a cause pending in a court, is no parties, and report thereon to the udgment is entered. Burrill's Law

-arsalute for a master, under the former uge a special term. When a specific

Pain a master; when the whole hurt. Fer Ward, J., in Graves

Laure suosutite for a trial by jury.

used muer the code has power to La reperaly the powers theretofore Se de same power as the court to s last a reasonable discretion as Where the whole issue is son of costs. Graves v. Blanaut une contrary in Van Valkenburg

were over the interlocutory ques with his decision of them, or at Sep, 243.

e revised statutes, that whenecord, and it should appear that en of a long account, on either -a-ty, or without such application, a competent persons. (2 R. S.,

t was held, that a reference was Abetween the parties; and that, cceptation of the term, the cause items of damage. 6 Hill, 273. ..we only to what were formerly tract, though it was held possiormerly known as an action of An action upon a policy of the controversy between the amount of loss sustained by the

271. [226.] When reference may be compulsorily ordered.Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the inves

assured. 1 Hall, 560. But a reference was refused in such an action, where the defence charged a fraud on the part of the insured. 25 Wend., 687. Nor would every matter of account be allowed to be referred as where there were but four items of account. 10 Wend., 577.

Actions for torts were not referable. 19 Wend., 108. And where an action of trover was referred, by consent of parties, and a report made, it was held that no judgment could be entered upon it, and if entered, it would be set aside on motion. Id., 2 Hill, 271. But if a cause not referable was referred by consent, and a report made, it was allowed to enure as an award of arbitrators, and might be enforced by action, as such. 2 Hill, 271. And a rule for judgment might be entered on such report if the stipulation contained an express authority for that purpose; though even then, the court would not review the acts of the referees. 19 Wend., 108.

In order to entitle a cause to be referred, it was necessary that an issue should be joined. 3 Cow., 339. And if there was a demurrer in the cause, relating to the whole action, and undetermined, a reference would not be granted. Ib.

By-laws of 1845, p. 163, c. 163. The power of the courts to refer was extended, but was still confined within much narrower limits than is prescribed by the code. And now by the code :-all or any of the issues in an action whether of fact or of law, or both, may be referred upon the written consent of the parties. (Code s. 270), and where the parties do not consent, the court may upon the application of either party, or of its own motion, except where the investigation requires the decision of difficult questions of law, direct a reference in the following cases:

1. Where the trial of an issue of fact shall require the examination of a long account on either side.

2. Where the taking an account is necessary for the information of the court before judgment.

3. Where the taking an account is necessary for the information of the court, for carrying a judgment or order into effect.

4. Where a question of fact other than upon the pleadings shall arise upon motion or otherwise in any stage of the action. (Code 271.)

Under these provisions it was held, per Edmonds, J., in Whale v. Whale, 1 Code Rep., 115, that in an action for a divorce, on the ground of adultery, where the adultery was denied by the answer, the court would not, [or could not,] even where both parties consent, permit the cause to be referred to a referee, to take testimony, and report the same to the court. That the revised statutes applicable to the subject, [2 R. S., 145, § 40,] were still in force, and that to allow a reference in such a case, would be virtually repealing the revised statutes. And with the approbation of a majority of the justices of the supreme court, for the first district, the motion for a reference in that case was denied. But in another case, Anon, 3 Code Rep., 139, the same judge held, that section 2 of art. 1, of the constitution, and the provisions of the code, have suspended the provisions of the revised statutes, requiring that an issue joined on a complaint for a divorce, by reason of adultery, shall be tried by a jury, so far, that when the parties consent, a reference may be ordered. See, further, the amendment to section 253.

Where an order is made, referring the cause, without any limitation, all the issues, whether of law or fact, are necessarily embraced in the reference, and the referees have power to report upon the whole issue. Renouil v. Harris, 1 Code Rep., 125. Graves v. Blanchard, 3 ib., 25.

An action based on carelessness or negligence cannot be referred, although it may become necessary, in the course of the trial, to examine into a large number of items constituting the plaintiff's claim for damages. McMaster v. Booth, 3 Code Rep., 111. 4 Pr. R., 427, The action was for an injury to the property of the plaintiff, by reason of the alleged negligence of the defendant's servant, and the plaintiff, upon an affidavit that the trial would involve a long account, moved for a reference. It does not appear, from the report of this case, whether or not the defendant was willing to consent to a reference, provided it could legally be had, but it may be inferred that