Findings of fact final. The finding of the court upon such questions of fact is final. McAden v. Banister, 63-478.

The findings of the judge of the superior court on questions of fact properly submitted to his decision in a cause of purely legal cognizance are as inviolable as the verdict of a jury, and cannot be reversed on appeal. Greensboro v. Scott, 84-184; Burke v. Turner, 85-500.

Findings of fact by the judge are reviewable only in equity cases. Jones v. Boyd, 80-258.

Findings on mixed questions of fact and law. -A judge of the superior court, in passing upon a mixed question of law and fact, should state the facts found, and the conclusions of law, separately. Fourshee v. Pattershall, 67-453.

The power of the supreme court to review such mixed questions of law and fact, decided by the judge below, is also argued at considerable length, by Rodman, J., in the above case. See, also, Heilig v. Stokes, 63-612, and Clegg v. White Soapstone, Co., 66-391.

Facts not fully found.-If the facts are not found fully by the judge, to whom a case is referred under this section, so that his conclusions of law can be reviewed on appeal, the, case will be remanded. Straus v. Beardsley, 79-59.

Called to the attention of the superior court judges.-The requirements of this section are called by the court to the attention of the judges of the superior court. Jacobs v. Burgwyn, 63-196.

This section not applicable. This section is not applicable to a motion to vacate a warrant of attachment. Millhiser v. Balsley, 106–433.

NOTE.-Section 416 applies to findings by the court upon issues of fact when a jury is waived. This section applies to findings of questions of fact, other, however, than the incidental questions of fact arising upon provisional remedies.

Sec. 418. Exceptions, how and when taken. C. C. P., s. 242.

(1) 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 the judgment, in the same manner and with the same effect as upon a trial by jury: Provided, that where the decision does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may except thereto, and make a case or exception as above provided in case of an appeal.

(2) And either party desiring a review, upon the evidence appearing on the trial of the questions of law, may at any time within ten days after 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.

Exceptions must be distinctly set out.-Exceptions taken must be distinctly set out, together with the facts upon which they depend. Meekins v. Tatem, 79-546; Williamson v. Canal Co., 78-156.

Too late to except.-After the filing of a referee's report, it was agreed that the cause should be tried by the court, without a jury, upon the evidence taken and returned by the referee, and it was so tried and determined, the court adopting some of the referee's findings: Held, that it was then too late to object that the referee had exceeded the scope of his authority under the order of reference; nor could the objections taken to the reception and rejection of evidence before the referee be insisted upon, unless they had been made again on the hearing before the court. Silver Valley Co. v. Baltimore Smelting Co., 99-445.

The poirt that there is no evidence to support the findings of fact made or adopted by the judge below, must be made by exception filed and called to the attention of the judge during the term, in analogy to a motion for a new trial. An exception based on such grounds, filed after the term, under Rule 27, will not be considered in the supreme court; although the exception, that there is no evidence, etc., is one which the court will pass upon if made in apt time. Battle v. Mayo,

102-413.

Findings on issues of fact.-The findings of fact by the judge, when he is authorized by law or the consent of parties to pass upon them, is as conclusive as the verdict of a jury upon issues submitted, if there be evidence; if there be no evidence, it is an error in law, open to correction in either case, to find them. Branton v. O'Briant, 93-99.

Where, in a suit instituted in the late court of equity, and transferred to the superior court docket under the provisions of the Code of Civil Procedure, the parties agreed that the judge should find the facts, and that he should examine witnesses orally, and only the substance of the oral evidence was sent up with the record, the right to have the findings of fact reviewed by the supreme court is waived. Runnion v. Ramsay, 93-410.

Findings on questions of fact.—The findings of fact by the judge on questions of fact in a cause of purely legal cognizance, are final, and not subject to exceptions. Burke v. Turner, 85-500; Greensboro v. Scott, 84-184; McAden v. Banister, 63-478.

Material fact not found.-Where the case is left by consent to be tried, both as to the facts and the law by the judge, and he fails to find some material fact, it will be remanded, in order that such may be found. Knott v. Taylor, 96-553.

Attention of bar called to this section by the court.-The attention of the bar is called to this section by the court. Jacobs v. Burgwyn, 63-196. Officers not entitled to costs, when.-Officers neglecting these provisions of The Code are not entitled to costs. Jacobs v. Burgwyn, 63-196; Fourshee v. Pattershall, 67-453; Green v. Castleberry, 70-20.

Sec. 419. Proceedings upon judgment on issue of law. C. C. P., s. 243.

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 three hundred and eighty-five, upon failure of the defendant to answer, where the summons was personally served. If judgment be for the defendant upon an issue of law, and if 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 jury may be ordered, as provided in section three hundred and eightysix.

SECTION.

CHAPTER FIVE.

TRIAL BY REFEREES.

420. All issues referable by con

sent.

421. When reference may be compulsorily ordered.

SECTION.

422. Mode of trial; effect of report; review.

423. Referees, how chosen; who may be referee; report.

Sec. 420, All issues referable by consent. C. C. P., s.

244.

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, except in actions to annul a marriage, or for divorce and separation.

Reference by consent.-A reference by consent is a waiver of the right to a jury trial. Klutts v. McKenzie, 65-102; Green v. Castleberry, 70-20; Armfield v. Brown, 70-27; Lippard v. Roseman, 70-34; Keener v. Finger, 70-35; Lippard v. Roseman, 72-427; Perry v. Tupper, 77-413; Atkinson v. Whitehead, 77-418; Britt v. Benton, 79-177; Overby v. Fayetteville, 81-56; Grant v. Reese, 82-72.

A reference not excepted to is a reference by consent, and neither party is entitled to a jury. Nissen v. Mining Co., 104-309; Grant v. Hughes, 96-177; Harris v. Shaffer, 92-30; Rogers v. Bank, 108-574; Armfield v. Brown, 70-27; White v. Utley, 86-415; Atkinson v. Whitehead, 77-418; Smith v. Hicks, 108-248.

A consent reference does not deprive the court of jurisdiction to make orders. The action is not referred. McNeill v. Lawton, 97-16.

Where the order of reference was as follows, "In this cause the order of reference heretofore made herein having been mislaid, it is agreed between the parties that D. C., clerk of this court, proceed to take and state an account," and "if not found, that an order be made as of the last term by consent according," makes a reference by consent. Vaughan v. Lewellyn, 94-472.

It is proper that the agreement to refer should specify in terms the "issues of law and fact"; but where the purpose is obvious, the strict words of the statute will not be required. Morrisey v. Swinson, 104-555.

Reference by consent cannot be recalled.-A reference, by consent, cannot be discontinued by the court at its discretion, nor vacated at the demand of one of the parties. It may terminate by the death of the referee, or the judge may remove him, for good cause shown, but not otherwise. Perry v Tupper, 77-413; Stevenson v. Felton, 99–58; Patrick v. Railroad, IOI-602; Smith v. Hicks, 108-248.

The consent of a party once given to a reference cannot be recalled. Flemming v. Roberts, 77-415; White v. Utley, 86-415; Morrisey v. Swinson, 104-555.

Entry of order sufficient.-An order of reference by consent entered of record is a sufficient compliance with the statute requiring the same to be in writing. White v. Utley, 86-415.

Too late to object, when.-When a case is referred without the written consent of the parties as required by this section, and both parties appear before the referee and examine testimony, and the report is afterwards made and confirmed in the superior court, and a judgment given upon it, from which an appeal is taken to the supreme court, it is too late to object in that court to the order of reference as having been improperly made in the superior court. Johnston v. Haynes, 68-509.

Issues should be raised before reference. -A reference ought not to be ordered before issues are raised between the parties to the cause. Syme v. Bunting, 86-175.

Scope of the reference.-On a consent reference the question as to whether all the issues raised by the pleadings are to be considered, depends upon the agreement of the parties, and the finding of the judge below is final and not reviewable. Barrett v. Henry, 85-321.

Pleading after reference.-Under an order of reference by consent, containing directions to the referee to ascertain what sums the clerk and master had received, when received, and a further provision that "his decision of the law is open to revision in this and other courts having jurisdiction," it is competent for the defendant to set up the presumption of payment from lapse of time, notwithstanding no answer was filed. Kerlee v. Corpening, 97-330.

Reference to state an account. -In an action for account and settlement of a partnership, where the defendant admitted the partnership, but alleged a full settlement, with specified exceptions, the settlement must be taken to be denied, and it is error to grant an order of reference to take an account before the trial of issues raised by the pleadings. Price v. Eccles, 73-162.

It is irregular to proceed with a reference to state an account while there are matters of defence left open which, if sustained, will bar the claim to have an account. Sloan v. McMahon, 85-296; Railroad v. Morrison, 82-141; Com'rs v. Magnin, 85–114.

When it is admitted, or proved, that there came into the hands of the administrator assets of the estate, it is proper to order a reference to state an account of his administration, unless some defence is interposed which bars the right to such account. Neal v. Becknell, 85-299.

Distinction between a reference to state an account preparatory to a trial, and the trial of a cause by a referee under The Code, pointed out. Barrett v. Henry, 85-321; Burke v. Turner, 85-500.

Arbitration and award.-If a suit be referred by an entry on the docket in these words, viz., "this case is referred to A. B., who shall summon the parties before him and hear the case, and his award shall be a rule of court," and the referee files a paper which he styles an award, whether it is to be treated as an award under a rule, or a reference under this section, the referee's finding of the facts is equally conclusive, as are also his conclusions as to the law arising on the facts, except, probably, where he undertakes to make the case turn upon a question of law, and clearly mistakes it. Gudger v. Baird, 66-438.

The effect of a reference to arbitrators is very different from that of a reference under The Code. Arbitrators may choose an umpire; they are not bound to find the facts separately from their conclusions of law; they are not bound to decide according to law; and their award may be general. Lusk v. Clayton, 70-184; Keener v. Goodson, 89-278.

But if the arbitrators attempt to decide according to law and err, their finding is reviewable. King v. Neuse Mfg. Co., 79-360; Miller v. Bryan, 86-167.

Submission to arbitration and an award constitutes an executory agreement, and certainty to a common intent is all that is required in the award to admit its specific enforcement. Crawford v. Orr, 84-246.

In the absence of impeaching allegations upon the production of an award (where the cause is referred to arbitration) the successful party is entitled to demand judgment thereon. Moore v. Austin, 85-179.

Distinction between a reference to arbitrators and a reference under The Code noted by Ashe, J. Keener v. Goodson, 89-273.

Unless a submission to arbitration is made under an order of the court, the award cannot be made a judgment of the court, except by consent. Love v. Fitzgerald, 97-39.

Nor can such be treated as a reference. Jackson v. McLean, 96-474. A reference was made to two arbitrators, with a provision in the order for the substitution of alternates in the event the original referees, or either of them, could not serve. One of them declined, and the alternate for him, vainly trying to secure a meeting with the other, also refused to serve. This was good cause for the court to vacate the order. Patrick v. Railroad, 101-602.

Where the submission to arbitration was under seal, and conferred upon the arbitrators therein named authority to call in a third party in case they could not agree, the selection of such third party before any disagreement, and his participation in the award, did not vitiate it, and it was not necessary that his appointment should be under seal. Bryan v. Jeffreys, 104-242.

Where one of the parties to an arbitration has performed a part of the award, he is estopped from afterwards assailing it because it transcended the scope of the agreement upon which it was based. Ibid.

The fact that arbitrators included in their award a sum not in dispute, but which was the basis of the disputed transaction, and without which the award would have been incomplete, will not make it void, and especially so when the agreement to refer submitted the question "of the amounts and sums due between" the parties." Ibid.

Where the defendant pleads, in bar of an action, that the whole cause of action alleged in the complaint has been the subject of arbitration and the award performed, and also alleges in his answer that he never had notice of plaintiff's claim until after the arbitration, the answer does not admit that the plaintiff's claim had not been submitted to the arbitrators, and it is competent for defendant to prove that it had been considered and was embraced in the award. Cheatham v. Rowland, 105-218.

See 422, post, and cases cited.