Morse v. Beers

The opinion of the court was delivered by Dunton, J. Upon the hearing before the referee, the plaintiff was allowed to amend his declaration by adding thereto the general or common counts. This the referee had no authority to do ; but the defendant was not prejudiced thereby, as the referee found that the plaintiff was entitled to recover only upon the original count in the declaration. When a cause is referred by consent of counsel, as this one was, no amendment of the declaration is necessary, to enable the plaintiff to make such proof as he would be entitled to make under any amendment that the court could allow. The whole case, including all matters that are embraced by such amendment, are referred to the referee, but he cannot enlarge the scope of the reference by allowing amendments to the declaration; nor is it within his province to allow any amendments to the declaration whatever. But for the reasons above stated, the error of the referee in this respect in this case, was a harmless one, and was in no way prejudicial to the rights of the defendant, and therefore furnishes no ground for a reversal of the judgment. The only matter in the report submitted to the court for its determination was decided in favor of the defendant; and as to the other matters determined by the referee, .his decision is final. The rule of reference in this case consented to by the parties provides that the report of the referee shall be final, and does not require him to decide the case according to law. A reference of this kind is similar to an arbitration. The referee can, however, [362] if he thinks proper, by his report, submit questions of law arising in the case to the determination of the court; but if instead of doing this he decides them himself, his decision of law as well as of fact, if he acts honestly; is final and not revisable by the court. In the case at bar, the parties chose their own tribunal to try it, and agreed that his report should be final. It was competent for them to do this ; and, as it is not claimed that the referee acted otherwise than honestly, his report is final, and the parties are bound by his decisions of law. as well as of fact. See Bigelow v. Newell, 10 Pick. 348; Griffin v. Insurance Co. 50 Vt. 460. The denial of the motion to recommit the report to the referee for farther finding, by the County Court, is not revisable by this court. The granting or refusal of the motion was a matter of discretion, to be exercised by that court, and its decision refusing the motion is final. Judgment affirmed.