John Wellman vs. Henry Bulkley, 6 Vt. 299

The opinion of the court was delivered by Williams, C. J. — It appears that this case was referred— that the rule was taken out in the usual form and a report made by the referees, or a major part of them. There was an additional statement made by one of the referees, but this is no part of the report or case before us. It would be unsafe to permit a statement made by one of the referees to have any effect on the question of the accepting or rejecting their report. The county court it appears, very properly rejected this statement, and nothing was left but a general report, to which no valid objections appear.

It is objected to the report that the rule did not follow the agreement of the parties — that from the rule a major part of the referees might report, whereas the agreement was to refer to the whole three. If this formed an exception to the report, it was a question addressed to the discretion of the county court, and their decision thereon is not to be re-examined here. If they found a mis-entry had been made by their clerk, they would correct it. The agreement of the parties and the docket minutes were not made a part of the case in the county court, although copies of them are now handed to us.

It was found however, that notwithstanding the agreement, and the docket entry were so made, the p'lain-tiff, who now raises the objection, took out the rule from the clerk — that the rule was made out in the form always used in the court on a printed blank. — That notice from the referees was annexed to the rule, service of which was made on the defendant and accepted by the plaintiff — that the parties and referees met and the cause was once adjourned — 'that they again met, the cause was heard and a report made, and no ex-pcetions taken by the plaintiff because the rule did not follow the agreement.

This was stronger evidence that the rule was made in conformity to the understanding of the parties than the writing here produced. At any rate this was a question addressed to the discretion of the county court, and their decision is final.

We are aware that in Pennsylvania exceptions to report of referees are treated like motions for new trials and are considered as addressed to the discretion of the court.— This may arise, in some measure, because the courts can there compel an arbritration or reference, as we understand; but the rules which they have adopted in relation to awards and reports of referees, have not been adopted here. The case from Dallas is not recognized as deciding a question similar to the present under the same law in relation to these kind of references.

The judgment of the county court, accepting the report of the referees, must therefore be affirmed.