
    Thomas Williams, Plaintiff, v. Job Stevens, Defendant.
    The report of a master commissioner, under the Code, is liable to be reviewed on exceptions, “and confirmed, modified, or set aside” by the court, in the same manner and to the same extent as was the report of a master in chancery before the Code; it does not stand upon the same footing with the verdict of a jury or finding of a referee in a proceeding at law, to be set aside only on a showing which would warrant the setting aside of a verdict of a jury rendered in a trial at law.
    
      This case was reserved on a motion to confirm the report of a master commissioner, for the purpose of determining, not whether this report shall be confirmed, but to determine the principle upon which the court shall proceed in deciding whether it shall be confirmed or set aside.
    The pleadings of the case show that it grew out of partnership transactions, and sought an account. It was properly an equity case, in which the court had jurisdiction to refer the issues of fact to a master commissioner without the consent of the parties. The reference was made without the consent of the defendant. The master took a large amount of testimony, and reported it with his findings of fact and law.
    In the order of reference, he was directed “ to find the facts between the parties, and, so far as he might find that the parties were entitled to have an account stated, if at all, to state the account between them, and, so far as he might find a settlement of accounts to have been made between the parties, if at all, to find as to what items thereof, if any, either party might be entitled, to open said settlement and have the accounts corrected; and of his findings and rulings, together with the evidence adduced before him, to make due return to the court,” “ in accordance with the supplementary act passed April 13, 1867,” requiring the report of the evidence on referred cases.
    
      Stallo & Kittredge, for plaintiff.
    
      Caldwell, Coppock & Caldwell, for defendant.
   Taft, J.

Our opinion is not asked in the direct question, whether this report shall be confirmed, or set aside, or modified, but we are asked to say what weight is to be accorded to it, by the court at Special Term, as a report of a master commissioner under such a reference? On the one side, it is claimed that it is to be regarded as of the same binding force as the finding of a jury; on the other, that it is to be reviewed, of course, by tbe court, and modified, set aside, or confirmed, as the court may decree correct, on its own independent and original examination, assisted, but not controlled by it.

By section 281 of tbe Code, issues may be referred, by consent of parties, to referees in all eases; and by section 282, they may be referred, without consent, in cases in wbicb tbe parties are not entitled by tbe constitution to a trial by jury; and by section 283, tbe manner of trial is provided, and the report is declared to have “ tbe effect of a special verdict,” and that “tbe report of tbe referee upon the whole issue stands as tbe decision of tbe court, and that judgment may be entered thereon in tbe same manner as if tbe action bad been tried by tbe court.”

As to the effect of the findings of referees, we can not doubt tbe correctness of the opinion of this court in the case of The Wesleyan Cemetery v. Woodruff, 2 Disney, 216, announced by Judge Storer, “ that referees, when appointed under the Code, possess judicial functions; that tbe authority conferred is to bear and determine the cause;” that, “ with tbe exception of tbe power to render judgment and issue execution, it would seem the referees possessed all tbe authority of the court who appointed them to bear and decide upon the matters submitted.” And tbe Supreme Court, in Lawson v. Bissell, 7 Ohio St. 132, 133, hold to the same construction of the functions of a referee under the Code.

Tbe Code, as originally passed, made no express provision as to the powers of master commissioners, but only authorized their appointment by the court under section 611 of tbe Code. But as amended by tbe act of March 30, 1868 (S. & S. 573), this section 611 provides, “that tbe court may, upon motion of either of the parties, refer any action, m wbicb tbe parties are not entitled to demand a trial by jury, to a regular or special master commissioner, to take testimony in writing, and report tbe same to the court, with bis conclusions on tbe law and facts involved in the issues, which report may be excepted to by the parties, and confirmed, modified, or set aside by the court.”

This language is different from that used in section 288 of the Code, in regard to referees, which declares “that when the reference is, to report the facts, the report has ' the effect of a special verdict;” and that “the report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court.”

The construction we put upon the office of master commissioner, under these statutes, is that he is to be regarded as a master commissioner in chancery, whose report is subject to be reviewed by the court which has appointed him, upon exceptions properly taken, and that his findings, like the findings of a jury upon issues out of chancery, are to inform and assist, but not necessarily to control, the judgment of the court; that the report of such master “ may he excepted to by the parties, and confirmed, modified, or set aside by the court,” as it shall deem equitable and just.

Practically, the effect of a report of a master commissioner upon the mind of the court may not, in a majority of cases, be very different from that of the finding of a referee in a legal reference. But where the court acts upon a master’s report, it is to be regarded as declaring its own conclusions of fact and law; while in acting upon the report of a referee, at least in a legal matter, it is to be regarded as rendering its judgment upon the facts found by the referee, as it would^do upon the finding of a jury. Theoretically, therefore, the responsibility of the judge is greater in the case oí a master’s report, than in that of a referee.  