Opinion of the court. opinious of the court arising in the course of a cause as are the subjects of revision by an appellate court, and which do not otherwise appear on the record.* Subordinate tribunal, say the court, must ascertain the facts upon which the judgment or opinion excepted to is founded, which undoubtedly is correct for the reason there given, that this court cannot determine, in cases at common law, the weight or effect of evidence, nor decide mixed ques tions of law and fact. Allusion is then made to the fact, that appellate courts in other jurisdictions are accustomed to revise such judgments and opinions, and the court say, "Upon principle we can see no objection to the introduction of the same practice into the courts of the United States, under the limitations we have indicated." Taken as a whole, that case is decisive of the question under consideration. But it is a mistake to suppose that the practice referred to was first sanctioned in this court by the opinion in that case. Ample authority for it is to be found in a decision of this court, pronounced more than forty years before the question in that case was argued. Reference is made to the case of Thornton v. Carson,† in which the opinion was given by Chief Justice Marshall. Statement of the case shows that two pending actions were referred by consent under a rule of court. Arbitrators made an award. Effect of the award was that the defendant was to pay to the plaintiff (Carson) the amount of the bonds in suit, unless by a certain day he made a conveyance to the plaintiff of the property described in the award; in which latter event he was to receive from the plaintiff a transfer of certain shares in a mining company, and to be discharged from the payment of the money, an entry to that effect to be made in the suits. Defendant failed to perform the act which would entitle him to such an entry in the case, and consequently became liable to pay the sums awarded by the referee. Oral * Strother v. Hutchinson, 4 Bingham's New Cases, 83; Ford v. Potts 1 Hrlsted, 388; Nesbitt v. Dallam, 7 Gill & Johnson, 494. 7 Cranch, 596. Opinion of the court. objections were made to the acceptance of the award, but the court overruled the objections, and rendered judgment for the plaintiff on the award for the amount of the money awarded. None of the evidence introduced when the award was accepted appeared in the record, and no bill of exceptions was tendered to the ruling of the court, but the defendant removed the cause into this court by a writ of error. Under those circumstances, this court refused to revise the rulings of the Circuit Court; but, in disposing of the case, the court say, if he; the original plaintiff, failed to do that which warranted the court in entering judgment on the award, it was the duty of the complaining party to have shown that fact as a cause against entering judgment, and to have spread all the facts upon the record, which would enable this court to decide whether the court below acted correctly or not.. Various other objections were also taken to the proceedings; but they were all overruled, and the judgment was affirmed. Similar views have been expressed by this court on other occasions, but it is not thought necessary to do more than to refer to the other cases, as those already examined are believed to be decisive.* Practice of referring pending actions under a rule of court, by consent of parties, was well known at common law, and the report of the referees appointed, when regularly made to the court, pursuant to the rule of reference, and duly accepted, is now universally regarded in the State courts as the proper foundation of judgment.† 3. Third objection is, that the action of the referee was erroneous, because he did not determine all of the issues between the parties. Evidently the objection is founded in * Carnochan et al. v. Christie et al., 11 Wheaton, 446; Luts v. Linthicum, 8 Peters, 176; Butler v. Mayor of N. Y., 7 Hill, 329; Ward v. American Bank, 7 Metcalf, 486; Water Power Co. v. Gray, 6 Id. 174. Yates v. Russell, 17 Johnson, 468; Hall v. Mister, Salkeld, 84; Bank of Monroe v. Wadner, 11 Paige, 533; Green v. Palshen, 13 Wendell, 295; Caldwell on Arbitration, 359; Feeler v. Heath, 11 Wendell, 482; Graves . Fisher, 5 Maine, 70; Miller . Miller, 2 Pickering, 570; Com. v. Pejepscut Proprietors, 7 Massachusetts 417, 420. Opinion of the court. a mistaken view of the duty of the referee as prescribed in the rule of reference. He was not required, either by the agreement of the parties or by the order of the court, to report specially what his finding was upon the several issues presented in the pleadings. His duty was to determine all the issues, and to report the result of his finding. Referee reported that, having heard and examined the matters in controversy in the cause, and having examined on oath the several witnesses produced, there was due to the plaintiff the sum of nine thousand and five hundred dollars, besides the costs of suit. Presumption is, that he did determine all the issues, and inasmuch as there was no evidence to the contrary, the conclusion must be to the same effect. 4. Fourth objection is, that the judgment is invalid and cannot be enforced. Defect suggested is, that the judgment was rendered by the clerk and not by the court; but the record, when properly understood, does not sustain the objection. Judgments are always entered by the clerk under the authority of the court. Prevailing party is entitled to judgment, and it is not the practice in the Circuit Courts to require a rule for judgment to be entered in any case, as is the practice in some of the courts in the parent country.* Entry of judgment in term time is never made except by leave of court; but the motion need not be in writing, and the order of the court is seldom or never entered in the minutes. When the term closes, judgments are entered by the clerk under the general order without motion; and yet no one ever doubted that a judgment entered under such circumstances was the act of the court and not of the clerk. Reference of a pending action is ordinarily perfected in term time by an entry made under the case by the clerk, at the request of the parties, that it is "referred," and with the addition of nothing else except the names of the referees, or it may be done, as it was in this case, by a written agreement, signed by the parties or their attorneys, and filed in the case. When that is done a rule is then issued, cine * 2 Tidd's Practice, p. 903; Archbold's Practice, by Chitty, 621. Opinion of the court. order of the court may be entered in the minutes, as was done in this record. Duty of the referee is to notify and hear the parties, and then to determine the controversy, and make a report or award to the court in which the action is pending, and from which the rule was issued. Judgment, however, cannot in general be entered in conformity to the report or award until it is accepted or confirmed by the court.* Reason for the rule is, that whenever it is presented, and before it is accepted, the party against whom it is made may object to its acceptance; but if required by the court, he must reduce his objections to writing, and file them in the case. Hearing is then had, and after the hearing the court may accept or reject the report; or, if either party desires it, the report may, for good cause shown, be recommitted. Such a report of referees is in many respects a substitute for the verdict of a jury. Where there is no agreement to that effect, no judgment can be entered on such a report until the same has been accepted. Present case, however, must be determined upon the peculiar circumstances disclosed in the record. Parties agreed that the report of the referee should have the same force and effect as a judgment of the court, and the court ordered, by consent of parties, that on filing the report with the clerk of the court, judgment should be entered in conformity therewith, the same as if the cause had been tried before the court. Referee accordingly made the report and filed it as required, and thereupon the clerk entered the judgment pursuant to the order of the court and the agreement of the parties. Proceedings of the referee were correct, and the losing party made no objections to the report.† Judgment having been entered without objection, and pursuant to the order of the court and the agreement of the parties, it is not possible to hold that there is any error in the record.‡ * Brown v. Cochran, 1 New Hampshire, 200. † Hughes v. Bywater, 4 Hill, 551. Bank of Monroe v. Widner, 11 Paige, 533. Opinion of the court. Theory of the objection is unfounded in fact, and upon that ground it is overruled. The judgment of the Circuit Court is, therefore, AFFIRMED WITH COSTS. EX PARTE Dugan. On a mere petition for a certiorari, the court, according to its better and more regular practice, will decline to hear the case on its merits, even though the counsel for the petitioner produce a copy of the record admitted on the other side to be a true one. It will wait for a return, in form, from the court below. On a petition for a certiorari to the Supreme Court of the District of Columbia to send up the record of their proceedings upon a habeas corpus issued from that court upon the application of the petitioner, it was stated by Mr. J. H. Bradley, counsel of the petitioner, that a copy of the record had been obtained; and he asked this court, upon the admission of the Attorney-General that the copy was a correct one, to hear the case without a return from the court below. The Attorney-General, on the other hand, while admitting the copy of the record produced to be correct, moved the court, for reasons which he laid, to continue the case. BY THE COURT. We think it the better, as well as the more regular practice, to await the return of the court below before taking any action on the merits. The certiorari will, therefore, be now awarded. Upon the coming in of the return the case will be regularly before us; and the motion for continuance made by the Attorney-General will then be disposed of. ACTION ACCORDINGLY. |