LAMBERT et al. v. SMITH & M'GILVERY, 3 Cal. 408

Murray, Chief Justice, delivered the opinion of the court. Heydenfeldt, Justice, concurred. This was an action involving the examination of a long account, and by consent it was referred to a referee, to take the testimony and report the facts in the case. To the facts so reported exceptions were taken by the appellants, and the testimony and facts were referred to Eugene Casserly, as a referee, to report a judgment upon the same.

The judgment so reported was afterwards set aside for some alleged irregularity or mistake, and the cause again referred to the same referee, to “hear and determine the same upon the proofs, as taken by the former referee, and report the same.” The second finding of the referee is general, and it is contended that the report should have set forth the conclusions of fact and law, drawn from the testimony taken by the referee. We think this objection is well taken. The conclusions of fact were disputed.

The intention of the reference was clearly to obtain a fair statement of the facts, and the order of the court seems to have been worded for this purpose. The report of a referee, like the finding of a court, should state the facts found and the conclusions of law. Without this, the parties would be remediless, and their rights concluded in many cases by the arbitrary decision of a referee. The finding should have been set aside. Judgment reversed, and new trial ordered.