
    OTIS F. SMITH v. BRANDON KAOLIN & PAINT CO. ; BAXTER NATIONAL BANK, Trustee.
    
      Reference. Conclusiveness of Findings of Referee.
    
    Where, under a general reference, it does not appear that the referee intended to he guided hy the rules of law, and no question of law is decided or referred to the court, the decision of the referee will he final.
    Assumpsit, with trustee process. The case was referred. The referee reported, and the court, at the September Term, 1879, Rice, Assistant J., presiding, rendered judgment, pro forma, 
      thereon for the plaintiff; to which the defendant excepted. The questions arising on the report ai’e stated in the opinion of the court.
    
      Prout & Walker, for the defendant.
    
      Ormsbee & Briggs and J. W. Stewart, for the plaintiff,
    contended that the findings of the referee were conclusive, and cited Steen v. Wardsworth, 17 Vt. 297 ; Cutting v. Stone, 23 Vt. 571; White v. White, 21 Vt. 250; Park v. Pratt, 38 Vt. 545 ; Smith v. Sprague, 40 Vt. 43 ; Griffin v. Insurance Co. 50 Vt. 460.
   The opinion of the court was delivered by

Royce, J.

The parties to this cause agreed that it should be tried by the referee; and it does not appear by the agreement or rule that the referee was required to be governed by the rules of law in its trial or decision ; and it does not appear from the report that he intended to be governed by the rules of law. No question of law is referred by him to the court, and no question of law can now be made ; because no such question appears to have been decided by the referee. White v. White, 21 Vt. 250.

In Park v. Pratt, 38 Vt. 545, it was held that where a referee does not state that he intended to decide according to law, and does not refer the question of law to the court, his decision will not be received, unless it is apparent that he has violated some principle of right whereby injustice has been done ; and in Smith v. Sprague, 40 Vt. 43, that the proceedings of a referee will not be revised, unless it appears upon the face of the report that he intended to decide according to law, and has mistaken the law. The findings and decision of the referee in this case are final and conclusive; and the judgment is affirmed.  