California, the whole issue in divorce cases cannot be referred even by stipulation of parties. The referee, in such cases, is but a master to take testimony. In New York, after issue joined, the parties have an absolute right to a reference of all the issues, and the proper order to be procured is an order to hear and determine the issues. It is only in cases where no issue is joined, or where some interlocutory question is involved, that a reference in a divorce case simply to take and report evidence is allowable." The order of reference cannot go beyond the pleadings,10 and must conform to the stipulation." Where a cause has been referred by stipulation of the parties to take evidence and report a judgment, and the referee reports a judgment which is entered, and the court subsequently grants a new trial, it cannot again refer the case to the same or another referee without a new consent.12 The order of reference should state whether it was made on the agreement of parties, upon the application of one party, or on motion of the court.18 An order of reference referring "the action" to a referee, "with the usual powers,' based upon the consent of the defendant in open court that the case be referred to take the testimony and report, warrants the referee in making and reporting findings of fact and conclusions of law. The reference of an action for trial and judgment does not deprive the court of power to order its dismissal for want of diligence in its prosecution before the referee.15

§ 1289. Compulsory reference. When the parties do not consent the court may, upon the application of either or of its own motion, direct a reference in the following cases: 1. When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein; 2. When the taking of an account is

8 Baker v. Baker, 10 Cal. 527; Cal. Civ. Code, § 130.

Sullivan v. Sullivan, 52 How. Pr. 453. This decision was under the former New York code; now, by section 1012 of the present New York code, the court may, in its discretion, grant or refuse a reference; and where a reference is granted, the court must designate the referee.

10 Branger v. Chevalier, 9 Cal. 351.

11 Haner v. Bliss, 7 How. Pr. 246. See, also, Scudder v. Snow, 29 How.

Pr. 95.

12 Daverkosen v. Kelley, 43 Cal. 477.

13 Terpening v. Holton, 9 Colo. 306.

14 Illstad v. Anderson, 2 N. Dak. 167, 49 N. W. 659.

15 Saville v. Frisbie, 70 Cal. 87, 11 Pac. 502.

necessary for the information of the court before judgment, or for carrying a judgment or order into effect; 3. When a question of fact other than upon the pleadings arises, upon motion or otherwise, in any stage of the action; 4. When it is necessary for the information of the court in a special proceeding;1 5. In Idaho, when the parties are numerous, and the convenience of the witnesses and the ends of justice will be promoted." And the rule is extended to cases where judgment is taken upon failure to answer.18 A compulsory reference of an action as involving a long account can be ordered where the accounts to be examined are the immediate object of the suit or the ground of the defense. They must be directly, and not incidentally and collaterally, involved.19 In an action requiring the examination of a long account on the trial of an issue of fact a compulsory order of reference is proper, notwithstanding the complaint may contain allegations of fraud, which constitute ground for the arrest of the defendant, and he has been arrested thereon.20 If the amounts are not in dispute, but defendant claims he was authorized to hire a collector, and that such hire consumed the amount in controversy, it is a question for a jury, and not for a referee.21 Either an action in tort or on contract may be referred, where it appears, from affidavits or the pleadings, that so many separate and distinct items will be litigated that a jury cannot keep the evidence upon each separately in mind.22 If a collateral matter not raised by the pleadings be sent to a referee under the second and third subdivisions of section 639 of the California Code of Civil Procedure, a motion for new trial is not necessary to bring the action of the referee before the court for review. The finding of the referee in such case does not take

303, 24 How. Pr. 186. As to reference where the examination of a long account is involved, see Tribou v. Strowbridge, 7 Or. 156; McDonald v. American Mortgage Co., 17 Or. 626, 21 Pac. 883; Templeton v. Linn County, 22 Or. 328, 29 Pac. 795, 15 L. R. A. 730; Deane v. Willamette Bridge Co., 22 Or. 169, 29 Pac. 440, 15 L. R. A. 614.

21 Wilson v. Union Distilling Co., 16 Colo. App. 429, 66 Pac. 170.

22 Salem Light etc. Co. v. Anson, 41 Or. 562, 67 Pac. 1015, 69 Pac. 675.

the place of a special verdict, and is not binding on the court until adopted by it.23

An account is a statement of commercial or pecuniary transactions between parties, occurring at various times.24 A bill of articles delivered at one time is not an account;25 nor a single bill of lading containing items;26 nor numerous items of damage;27 nor of articles lost in an action upon an insurance policy;28 nor claim for numerous articles under a single obligation.29 When the taking of an account is required, it is in the discretion of the court to take the account, or to refer it to a commissioner or referee.30 A reference may be ordered in any equity suit, where either party alleges facts showing an accounting to be necessary.31 When the court itself takes or states the account, a refusal to order a reference for such purpose is not erroneous.32 In an action at law, the necessity of taking a long account will not authorize the court to refer the case without the consent of parties.33 It cannot be ordered merely on the ground that if plaintiff recovers judgment such examination will become necessary, though such account may be taken before main issues are tried by a jury, reserving those issues for such trial.35 In an action for balance of account, the defense was payment by a promissory note; replication, that plaintiff was induced to receive the note by fraudulent representations; it was held that the case was not referable without written consent of both parties. And in an action to dissolve a partnership, the court may order a reference for the trial of all the issues of fact relating to the condition of the partnership accounts; but it has no power, if objection is made, to order a reference of any other

36

23 Harris v. San Francisco S. R. Co., 41 Cal. 393.

24 Freeman v. Atlantic Mutual Ins. Co., 13 Abb. Pr. 124.

25 Swift v. Wells, 2 How. Pr. 79; Miller v. Hooker, 2 How. Pr. 171; Stewart v. Elwele, 3 N. Y. Code Rep. 139.

26 Miller v. Hooker, 2 How. Pr. 171. 27 Dewey v. Field, 13 How. Pr. 437; McCullough v. Brodie, 13 How. Pr. 346; Sharp v. Mayor of New York, 9 Abb. Pr. 426, 18 How. Pr. 213.

28 Freeman v. Atlantic etc. Ins. Co., 13 Abb. Pr. 124. But, to the

contrary, see Lewis v. Irving Fire Ins. Co., 15 Abb. Pr. 303, note.

29 Van Rensselaer v. Jewett, 6 Hill, 373, 41 Am. Dec. 750.

30 Hidden v. Jordan, 28 Cal. 301. 31 Jones v. Gardner, 57 Cal. 641. 32 Emery v. Mason, 75 Cal. 222, 16 Pac. 894.

33 Grim v. Norris, 19 Cal. 140, 79 Am. Dec. 206.

34 Cameron v. Freeman, 10 Abb. Pr. 333, 18 How. Pr. 310; Keeler v. Poughkeepsie etc. Co., 10 How. Pr. 11. 35 Bowman v. Sheldon, 1 Duer,

607.

36 Seaman v. Mariani, 1 Cal. 336.

issue, or to direct referees to report a judgment;37 and an averment in the answer that the accounts had been adjusted, and that the parties had "not taken any new contracts since," is held not sufficient to prevent a reference.38 On an application for the protection of an attorney's lien, the court has power to refer the question without consent.39 The action of the trial court in making an order of reference without the consent of the parties in a case where such consent is required, will not be reviewed by the appellate court in the absence of an exception thereto by the party complaining of such ruling.40 In actions other than those arising upon contract for the recovery of money or damages only, if no answer has been filed after default entered, if the taking of an account or the proof of any fact is necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose."1

§ 1290. Order of reference-Practice thereon-Affidavit.-The motion must be made on affidavit showing that issue is joined.42 The affidavit should be made by the party himself, or show sufficient excuse for his not doing so. The order is not void for indefiniteness for failure to show whether reference was made to the person as referee or as court commissioner. 44

43

§ 1291. Confession of judgment.-A reference with directions. to the referee to take proofs concerning the confession of a judg ment by the defendant, and the judgment-roll in the case, and whether the same was filed in the clerk's office, and to report the testimony, with a finding of facts and a judgment, does not submit to a reference the question as to what amount, if any, is still unpaid on the judgment.45

37 Williams v. Benton, 24 Cal. 425. 38 Kennedy v. Shilton, 1 Hilt. 546, 9 Abb. Pr. 157. Note to Pratt v. Stiles.

39 Ackerman v. Ackerman, 14 Abb. Pr. 229. But compare Fox v. Fox, 24 How. Pr. 409. See Hale v. Swinburne, 17 Abb. N. C. 385.

40 Shain v. Peterson, 99 Cal. 486, 33 Pac. 1085. See Hendy Machine Works v. Pacific Cable Construction Co., 99 Cal. 421, 33 Pac. 1084.

41 Cal. Code Civ. Proc., § 585,

subd. 2; Nev. Comp. Laws, par. 3247, § 125, subd. 2.

42 Jansen v. Tappen, 3 Cow. 34. See Lord v. Connor, 48 How. Pr. 95.

43 Mesick v. Smith, 2 How. Pr. 7; Ross v. Beecher, 2 How. Pr. 157; Little v. Bigelow, 2 How. Pr. 164; Wood v. Crowner, 4 Hill, 548. As to amendment of order of reference, see United States v. Church, 6 Utah, 15, 21 Pac. 503. 44 Howard v. Hanson, 49 Wash. 314, 95 Pac. 265.

45 Solomon v. Maguire, 29 Cal. 227.

§ 1292. Equity cases. In an equity case where the trial of an issue of fact involved requires the examination of a long account the court may order a reference with directions to report upon the account, or any issue of fact involved in the account.46 Not only must there be an account, but it must be a long one; four items, or even seven, will not constitute such an account."

§ 1293. Duties of referees. When the court has decided the principles upon which an account should be taken and settled, it is the duty of the referee to take the account in pursuance of the principles thus settled; it is not competent for him to review the action of the court." 48 It is the duty of a referee to act upon the questions committed to him, and to report whatever he is required to report by the order under which he acts.49 A referee must keep as free from outside influence, or the influence of the parties, as jurors,50 and cannot be a witness in a proceeding had before him."1

§ 1294. Motion, when made. The motion should not be made. while an issue of law remains undecided which, if decided in a particular way, would dispose of all the issues of fact. In short,, it ought not to be made till the cause is ready for trial, though it may be made immediately upon joinder of issue, without waiting for a possible amendment of course by the adverse party.52 And either party may have order of reference revoked. or reconsidered, if such amendment be made.53 It ought to be made before notice of trial.

§ 1295. Motion opposed.-When the motion is opposed, on the ground that difficult questions of law are involved, an affidavit to that effect should be submitted, showing what questions are involved. And questions of law must be clearly stated.55 It is not a sufficient objection to a motion for reference to show that

54

46 Williams v. Benton, 24 Cal. 425. 47 Parker v. Snell, 10 Wend. 577; Harris v. Mead, 16 Abb. Pr. 257; Smith v. Brown, 3 How. Pr. 9.

48 Smith v. Walker, 38 Cal. 385, 99 Am. Dec. 415.

49 Hihn v. Peck, 30 Cal. 280; Quincy v. Young, 5 Daly, 44.

50 Dorlon v. Lewis, 9 How. Pr. 1; Yale v. Gwinits, 4 How. Pr. 253.

51 Morss v. Morss, 11 Barb. 510. 52 Enos v. Thomas, 4 How. Pr. 290. 53 Beardsley v. Stover, 7 How. Pr. 294.

54 Dewey v. Field, 13 How. Pr. 437; Salisbury v. Scott, 6 Johns. 329; Barber v. Cromwell, 10 How. Pr. 351.

55 Salisbury v. Scott, 6 Johns. 329; Anonymous, 5 Cow. 423.