
    PLANT v. FLEMING et al.
    
    A iplaintivf can voluntarily submit to a nonsuit before a referee in a case where no counter claim is set up by the defendant.
    ■ Under a reference to try the issues and report a judgment, the referee can exercise all the powers of a Judge in relation to the trial'of the cause referred to him.
    Appeal from the Eleventh Judicial District.
    .Action brought on a promissory note to recover $3,100. Defendant answered, admitting an indebtedness of f 1,100, denying the balance, and making no counter claim.
    The case was by consent referred to a referee to take the testimony and report a finding of facts and a judgment. After evidence on both sides had been introduced, and the parties had rested, the plaintiff asked leave to take a nonsuit, which motion was, by the referee, overruled pro forma, and judgment rendered in favor of plaintiff for SI,100, and exception taken.
    On the coming in of the report, plaintiff renewed his motion for a nonsuit, which was refused by the Court, and judgment entered in accordance with the report.
    Plaintiff moved for a new trial, assigning as cause, error in the refusal by the referee and the Court to grant his motion for non-suit, and from the order overruling the motion for new trial this appeal is taken.
    
      Humphrey Griffith, for Appellant.
    
      John Hume, for Respondent.
   Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring.

The only question presented for determination on the appeal is, whether a plaintiff can voluntarily submit to a nonsuit before a referee, after the proofs are closed, in a case where no counter claim is set up by the defendant. We have no doubt that under our statute the referee, upon a reference to try the issues and report a judgment, can exercise all the powers of a Judge in relation to the trial of the cause referred to him. For the purposes of the trial he takes the place of the Judge, and not only possesses the power, but upon the abandonment of the cause by the plaintiff'before its final submission, or upon the motion of the defendant when the plaintiff fails to prove a sufficient cause, it is his duty to grant a nonsuit, and to report his judgment to that effect. (Practice Act, secs. 148,182 and 188.)

Judgment reversed and cause remanded for a new trial.  