the rule (viii. sec. 46, Rules, p. 46), and for the reason given by the master we arrive at the same conclusion which he reached. And now, to wit: January 16, 1882, the exceptions to the report of the master are overruled, and the report is confirmed, and the exception to the answer for impertinence is dismissed. It is further ordered that the costs of this reference, including the allowance to the master, be paid by the defendant. A. Ricketts, Esq., for plaintiffs. Court of Common Pleas of Luzerne County. OSBORNE, Trustee, v. HOLLENBACK. Equity-Petition by plaintiffs for dismissal and discontinuance of suit upon payment of costs without prejudice," after demurrer to the bill had been sustained. Where a demurrer to a bill in equity has been sustained, "with leave to the plaintiff to move for amendment" within a certain time, and the time thus allowed has expired without amendment, the defendant's right to a formal decree dismissing the bill was complete. Neither plaintiff nor court, on the facts of the present application, can deprive defendant of the benefit of the decision upon the demurrer. Therefore, an order dismissing the suit upon plaintiff's motion should be given the same effect as a dismissal of the bill upon the demurrer, and a motion to dismiss "without prejudice" should be denied. Petition of John T. Doyle and Emily A. Doyle, his wife, for an order for the dismissal and discontinuance of the suit upon payment of costs, "without prejudice to their alleged rights as against the said John Welles Hollenback, through the said Edwin S. Osborne." The opinion of the court was delivered April 4, 1884, by RICE, P. J.-If this were a simple motion for an order of dismissal without more, there would seem to be no serious objection to its allowance. But the effect of adding to such order a qualification that it shall be without prejudice would be to totally nullify what has been done in the case, and to forestall any possible effect which it might have upon a future suit. At this stage of the suit, I do not think this is within the discretionary power of the court. A demurrer was filed to the bill, which, after argument, was, on September 9, 1882, sustained, "with leave to the plaintiff to move to amend within twenty days," and this time was subsequently extended. When the time thus allowed had expired without amendment, the defendant's right to a formal decree dismissing the bill was complete. If such decree would be pleadable in bar of a new bill having the same object as the present, or if, without a formal decree enrolled as a judgment, the allowance of the demurrer could be set up by way of answer, it will be seen that his right to have the benefit of the decision upon the demurrer is of the highest nature, and, on the facts of the present application, neither the plaintiffs nor the court are authorized to deprive him of it. 2 Daniel's Ch. *930, 2 Am. Ed.; Watt v. Crawford, 11 Paige, 472; Saylor's Appeal, 3 Wr. 495. But if, as the plaintiffs contend, the sustaining of the demurrer was not a judgment on the merits, and a formal decree even would not be pleadable as such, then an order dismissing the suit "without prejudice" would seem not to be necessary to their protection. See Detrick v. Sharrar, 14 Nor. 521. At any rate, I am clearly of opinion that the plaintiffs are not in position to force a decision of its conclusiveness in advance, and that an order dismissing the suit upon the plaintiffs' motion should be given the same effect, so far as the court has control over the same, as a dismissal of the bill upon the demurrer. This will leave the question of the conclusiveness of the decision upon the demurrer to be determined where it properly belongs in the new suit which the plaintiffs desire to bring. And now, to wit: April 4, 1884, the motion of John T. Doyle and Emily A. Doyle for an order for the dismissal and discontinuance of the suit upon payment of costs “without prejudice," etc., is denied. G. M. Harding and John McGahren, Esqs., for plaintiff. Court of Common Pleas of Luzerne County. BLACKMAN & KERR v. SMITH. 1. A referee, under the act of 1870, should state specifically his conclusions of fact on all essential questions raised by the evidence, in order that their correspondence or non-correspondence with the weight of the evidence may be verified. 2. In this case, the referee having failed to find and state specifically certain conclusions of fact, the report was referred back. Report of referee and exceptions. The opinion of the court was delivered August 1, 1884, by RICE, P. J.-The plaintiffs brought an action before a justice of the peace to recover "thirty-eight dollars and seventy cents, balance due on book account for blacksmithing and repairing." The case came into court on appeal, and was referred under the act of March 23, 1870, and supplements, and now comes before us on exceptions to the referee's report. On the trial before the referee, it appeared that the whole amount of the plaintiffs' bill was one hundred and forty-two dollars and seventy-five cents; that some time in 1877, before the dissolution of the plaintiff firm, Mr. Kerr, one of the partners, and the defendant met and made a settlement. After allowing the defendant certain credits, it was found that there was still a balance of three dollars and seventy-five cents due to the plaintiffs. The defendant gave his due bill for this balance, and Mr. Kerr gave to him, in the firm's name, a receipt in full for the latter's bill. The defendant subsequently paid and took up the This suit was brought in 1879, after the dissolution of the plaintiff firm. due bill. The plaintiffs claimed, in the first place, that there was a clerical mistake in the settlement, by which certain credits, amounting to thirty-five dollars and seventy cents, were allowed twice to the defendant. The referee's finding is against the plaintiffs, and, as the evidence upon the subject is conflicting, the court will not disturb it. But, in the second place, the plaintiffs claimed that, even according to the defendant's theory that there was no mis take in the settlement, still certain credits claimed by and allowed to him against the partnership account consisted of items owing to him by Mr. Kerr individually and not by the firm. The referee was therefore requested to find that it was not competent for one member of a firm to offset an individual debt of his own against the firm account. The referee says: "This the referee holds good law as to non-assenting partner unless afterwards ratified by him," but he does not refer us to any evidence to show, nor does he find as a matter of fact that Mr. Blackman, the other partner, assented to or ratified the action of Mr. Kerr. The questions suggested by the requests of the plaintiffs' counsel were fairly raised by the evidence, and entitled the plaintiffs to specific findings by the referee in the following particulars: first, Whether the items in dispute which were allowed to the defendant in the settlement were partnership debts, or were the individual debts of Mr. Kerr; second, If they were Kerr's individual debts, whether Blackman, the other partner, assented to the settlement as made, or authorized Mr. Kerr, his co-partner, to allow them against the firm accounts, or ratified his action in so allowing them, or in any other material particular. The act under which this case was referred 'requires that the referee shall state the facts found and the conclusions of law separately. Not only has this requirement been overlooked in this case, but we are left in the dark as to what were the referee's conclusions upon the most material questions of fact in the case. "It is evident that the act contemplates that there shall be in each case what is equivalent to a special verdict. The finding of the referee must have the same certainty and fulness as is required in a special verdict, so that the judgment shall be the conclusion of law upon the facts." Butterfield v. Lathrop, 21 Sm. 225. The referee should find and state specifically his conclusions of fact on all essential questions raised by the evidence, in order that their correspondence or non-correspondence with the weight of the evidence may be verified. Stevens Exrs. v. McAlpine, 4 Luz. Leg. Reg. 97. We refrain at this time from expressing any opinion upon the evidence, but, for the reasons stated, the report is referred back to the referee. When we have his findings upon the essential questions of fact in the case, we can determine whether they are warranted by the evidence, and whether they sustain the legal conclusions which he bases thereon. And now, to wit: August 1, 1884, it appearing to the court that justice requires it, it is ordered that the report be referred back to the referee. John Richards, Esq., for plaintiff. W. J. Hughes, Esq., contra. Court of Quarter Sessions of Berks County. IN RE HUNTZINGER. A prisoner sentenced to fine and imprisonment cannot make his application for a discharge under the insolvent laws immediately after his term of imprisonment is over. Application for discharge under insolvent laws. The opinion of the court was delivered May 17, 1880, by HAGENMAN, J.-Under a change of venue, Jacob Huntzinger and J. Albert Huntzinger were tried and convicted in the Court of Quarter Sessions of Berks county of a charge of conspiracy to cheat and defraud Thomas F. Kerns, and, on the 22d day of January, 1878, they were sentenced to pay a fine of five hundred dollars to the commonwealth for the use of the county of Berks, to restore and pay to Thomas F. Kerns the sum of twenty-four thousand dollars, of which he had been defrauded, to undergo imprisonment in the Berks county jail, by separate and solitary confinement at labor, for the period of two years, to pay the costs and to stand committed until this sentence is completed. Upon the report of the prison authorities, and by virtue of the acts of assembly, the governor did, on the 15th day of November, 1879, under the great seal of the commonwealth, order and direct that two months should be deducted from the term of imprisonment of said Jacob and J. Albert Huntzinger, and that they should be discharged from confinement upon the 22d day of November, 1879. On the said last day named, Jacob and J. Albert Hunt |