
    ADAMS vs. COHEN.
    
      Fourth District Court, for San Francisco Co.,
    
    
      November, 1857.
    Referee—Stipulation—Report.
    Ia an oqni|y salt where some of the issues of fact were tried before a jury and.those remaining by order of court and consent of parties, refered to a referee with instructions to report the testimony etc., it is illegal to change the referee without the consent of the court or all the patties interested.
    References of this kind are for the information of the court; to be considered in connection with the verdict in making final decree and judgment, and the testimony should be reported in full in the form of depositions.
    Icssmuch as the verdict of a jury in an equity case, may or may not be adopted by. the court as its finding, semble that this doctrine may be applied to the report of a referee or to any part thereof.
    The facta are fully set forth in the opinion.
    
      T. W. Park, for plaintiff.
    
      Hoge $ Wilson, for defendant.
    
      Saunders $ Hepburn, for receiver Naglee.
   Hager, J.

This is an action in equity against the defendant, the former receiver in the suit of Adams vs. Haskell & Woods, still pending in this court. The complaint alleges that defendant received into Ms possession, as the receiver of this court, certain promissory notes, bills, coin, gold dust, &c., particularly specified; that he was removed from Ms office, and a new receiver has been appointed; that since the removal defendant has neglected and refused to surrender to his successor in office, the property, &c., that came into Ms possession as Receiver, and to render a just account of Ms doings in the matter of the feast; and that this action was instituted with consent and authority ¿Í tills Court, Among other things, plaintiff ask that defendant may lb compelled to SeEver to the new receiver the property aforesaid, oaS &at am account be taken of the defendant’s receipts and disbursements, asxd he be decreed to pay the balance of money focad against. Mm, claimed to be $450,000. After defendant answered, issues were Made up and submitted to a jury to find the amount of coin, gold dust, fee., that came to defendant’s hands, as receiver, upon which a verdict wss obtained fixing the amount. The remaining issues of fact, iaeluding those in regard to the notes, bills, fee., that went into defendant's possession, were referred by the court, with the cement of parties, to Wm, Baer, Esq., to report the evidence and facts, &®„

Subsequently, as appears by a stipulation signed by the attorneys of the defendant, and the new receiver, Gilbert A. Grant, Esq. was substituted as the referee, in place of Mr. Buer,

This change of the referee was without the sanction of ft© court, or, co far as appears, the attorneys of Adams, Haskell, or Woods, or the creditors interested in the fund. Heretofore, I have held, it was the duty, as weH as the interest, of the plaintiff to assist in putting a receiver in possession of the property belonging to the estate he represents. The attorneys of the plaintiffs in the suit in which the receiver was appointed, took an active part in this action before and at the trial of the issues before the jury, and were entitled to be heard, in making a selection or change of the referee, and before Mm after it was made; This change of the referee was illegal and without authority, and’only binds those that consented.

The jury having passed upon the question how muon coin, &e. went Into the hands of the defendant, left the remaining issues as to the notes, &c. undisposed of, and these were referred to Mr. Buer, to.seport the evidence, with Ms finding of facts thereon, not as the copy of the order among the papers returned by the referee reads, “Ms conclusion of law thereon.”

The object of the reference was to have the whole facto before the court for its information, to be considered in connection with the verdict, that the court might come to a proper conclusion after argument preliminary, and with a view to a final decree and judgment.

The most material issues referred, as far as respects plaintiffs’ relief, appear to have been entirely disregarded, from the fact that no evidence was given or offered on the part of the plaintiffs to sustain them, ©a the part of the defendant, witnesses were sworn and examined m regard to his disbursements and the value of his services and extrasto from the minutes, and a number of documents from the files of fh® 6©wt, were introduced for purposes I am. unable to determine. The referee has omitted to have a jurat and certificate, or th@signature ®ft the witnesses annexed to the several depositions, which im this cess 0he ©rá©r being to report the evidence,) was necessary to ¡pv© the© validity, la regard to the minutes and documents from the files of this court, it may be said that the judge takes judicial notice of these, should best know and be able to determine their contents and condition. It is foreign to the object of this reference, to- have the referee report facts and conclusions based upon the records of the court, either in regard to the appointment, acts or proceedings of the defendant as receiver, or as to what has been reported by another referee, upon the matter of settlement of defendant’s accounts. Those records will speak for themselves, and can he referred to at any state of proceeding, so far as may be necessary for the due administration of justice. To illustrate the errors the referee has fallen into by undertaking to inform the court, in regard to its record, it is only necessary 'to state that the one prior report referred to by the referee, was get aside, and after a second order of reference was made, defendant left the State—-neglected to proceed under it and embarassed the hearing so that nothing was done until, so far as the court is informed, long after the commencement of this suit, and the report thereon has never been confirmed.

The referee’s conclusions of law are more extraordinary than the finding of facts ; substantially they are as follows:

1. That defendant should be allowed disbursements made as receiver, which the referee finds to he $18,704 53-100.
2. That he is entitled to compensation for his services, v/Mch is found to be of the value of $10,000.
3. That the order of reference heretofore made to pass the defendant’s accounts, is a good defense to this action, and entitles him to a judgment.
4. That the defendant in Ms answer has set up a legal defense, and the action cannot be maintained.

If the referee had possessed the power, and deemed it proper to set aside the verdict of the jury heretofore rendered, the whole case might have been summarily disposed of by a confirmation of the report, and the entry of a judgment for the defendant; but then a question might arise whether or no it should be for the sum of $88,704 53-100, as found due £6r disbursements and services, or generally on the ground Indicated in the jibcrrih conclusion. The report, as it -stands, is neither dear am* and, lam uncertain what might be the effed, ofrii confirmation, as a whole, and I cannot well adopt it in part. The supreme court have held that the verdict of a jury in an equity case, may or may not be adopted as its finding by the court, and probably this doctrine may be applied to the report of a referee, or any part thereof.

It is clear to my mind, that the finding of facts and conclusions of law go beyond the scope of the reference, and ogre not in conformity with its command, as a whole I cannot confirm or adopt it as the finding of the court. I have considered whether I might adopt it, so far as relates to the value of services, and the amount of disbursements of the defendant, but the question of the value of services was not referred, and I find upon examination of the account, as reported and passed, a considerable proportion of the amount allowed the defendant for disbursements, is for payments made by him after he was out of office, and that it is charged against the fund in court without authority ; these, therefore, cannot be allowed.

The subject matter of the third and fourth conclusions of the referee will probably come before the court as questions of law, not of fact upon the final hearing.

Whether or no the effect of the report will operate to preclude the plaintiff, from the farther prosecution of the issues of fact submitted by the order of reference, from the fact that they have failed, or neglected to proceed to introduce proofs before either Mr. Baer or his substitute, may be considered hereafter should it be necessary, independent of the report itself. I have concluded, to set aside the report, without prejudice to the rights of the parties.  