SLOAN & RHODES, Respondents, v. PETER SMITH, Appellant, 3 Cal. 406

Murray, Chief Justice, delivered the opinion of the court. Heydenfeldt, Justice, concurred. This appeal is taken from the final judgment of the court below, rendered upon the report of referees. We have already given a construction to the act concerning references, which has settled the practice in the lower courts, and which covers the errors assigned by the appellant, with the exception of the one that the referees were not sworn. ' There is nothing in this point; the statute does not require referees to be sworn.

Consequently, the imposition of an oath by the court would be of no effect other than to put it in their power to commit moral perjury without being amenable to the law. Again : if the legislature had intended that referees, like jurors, should be sworn, for the protection of the interest of litigants, it would be presumed in this case that they were sworn, the contrary not appearing. The order of the court is to report a judgment; the evidence is not a necessary part.

On the filing of the report, judgment is entered as a matter of course; and the only mode in which a party can take advantage of it is, by moving to set aside the judgment, as on a motion for a new trial. Judgment of the court below affirmed.