they are proved guilty. If in weighing the evidence for and against the prisoner the beam of the scales is horizontal, and the scale in which the guilt of the prisoner is placed is not carried down, but is evenly balanced by the scale in which the proof and presumption of innocence is placed, this fact raises a doubt in the minds of the jurors, and the prisoner is entitled to the benefit of the doubt, and must be acquitted.

CHAPTER CXVI.

REFEREES.

1. REFEREES are judicial officers appointed by the court. The place of conducting the reference is regarded as a branch of the court. The witnesses and counsel are there to be governed by the same rules which would control them in a court of law. All issues in an action may be sent to a referee, upon the written consent of the parties, except where an infant is a party. When the parties do not consent, the court may direct a reference-1. When the trial of an issue of fact will require the examination of a long account; 2. When the taking of an account is necessary; 3. When a question of fact, other than upon the pleadings, shall arise. A certified copy of the order of reference should be served on the referee. This is his authority under which he acts. It would be irregular to take any action in the case until such service. The referee

be guilty? What circumstances in weighing the evidence should raise a doubt in the minds of the jurors? Who is entitled to the benefit of this doubt?

1. What is the official character of a referee? How is the place of conducting the reference regarded? By what rules are the witnesses and counsel there governed? What issues may be sent to a referee on consent? If the parties do not consent, when may the court direct a reference? What should be served on the referce? What is the authority under which he acts? Can he take any action before such ser

makes his report to the court by which he was appointed. In his report he states the facts found, and conclusions of law, separately. The court will not interfere with the report of a referee on a question of fact, unless it is clearly against evidence, or in direct violation of some rule of law.

2. The referee is clothed with all needful authority to determine every thing which properly belongs to the trial of the action. The referee is bound by the decisions of the general term of the Supreme Court, until reversed by the Court of Appeals. The referee takes the place of the jury as well as of the court. Where there is the slightest reason to suspect that any influence beyond what has transpired at the trial, and in the presence of the parties, has been brought to bear upon the minds of the jurors, the verdict must be set aside. The referee should try the case before him with the greatest discretion and impartiality. The reasons which would lead the court to set aside the verdict of the jury, would lead the court to set aside the decision of the referee on a question of fact.

3. A referee must not take the statement of a witness out of court. On a trial before him he has the power to allow amendments to any pleadings or summons in the same manner as the court could do upon such trial. He has not the power to allow the name of a party to be stricken out. The referee should not rely on depositions produced before him, but he should take down the evidence from the witnesses themselves. The referee can compel the attendance of witnesses by attachment, and punish them for a contempt for non-attendance, or refusal to be sworn, or to testify in the same manner as the court could do. Referees may, in their discretion, open a case

vice? To whom does the referee make his report? What does he state in his report? When only will the court interfere with the report on a question of fact? On a question of law?

2. With what authority is the referee clothed? By what is the referee bound? Of whom does he take the place? When will the verdict of a jury be set aside? When should the report of a referee be set aside?

3. Can the referee take the statement of a witness out of court? What amendments may he allow in a trial before him? What evidence should he receive? How can he compel the attendance of witnesses?

after it has been submitted, and hear further testimony. A. referee cannot be a witness in a case referred to him. A referee may refuse to hear further testimony against the character of a witness, or in support of his character.

4. A referee is required by law to take a prescribed oath before entering upon his duty; and yet it often happens that no such oath is taken. If the parties proceed with the reference without objection, they are held to have waived their right to object. The oath is usually in the following form:

"I, John Doe, referee appointed in this action, do swear, that I will faithfully and fairly hear and examine this action, and make a just and true report thereon, according to the best of my understanding."

The oath may be administered by any person authorized to take affidavits to be read in the court in which the suit is pending. When the referee is ready to proceed with the trial, the counsel for the party who holds the affirmative of the issue to be tried opens the case before the referee; states the substance of the pleadings, and the issues formed by the pleadings, with the evidence he proposes to produce on the part of his client. He then calls his witnesses, who are first examined by the party producing them, and then cross-examined by the counsel for the other party.

5. The referee has power to administer an oath to the witnesses. The form of the oath is as follows:

"The evidence you shall give in this issue, joined in the Supreme Court, between A. B., plaintiff, and C. D., defendant, shall be the truth, the whole truth, and nothing but the truth. So help you God."

For what purpose may they open a case after it has been submitted? What testimony may he refuse to take?

4. What is a referee required to take before commencing the trial? If the parties proceed to the trial without objection? What is the form of the oath? Before whom may it be taken? Which party opens the case? What does he state? By whom are the witnesses examined? By whom cross-examined?

5. Who administers the oath to the witnesses? What is the form of

A witness has a right to consult counsel in the presence of the referee. The advice of counsel must be given under the eye, and in the hearing, of the referee. To save the expense and delay of proving certain facts, the attorneys may admit these facts; but an attorney acting for an infant cannot make an admission for him to his disadvantage. It is for the party holding the affirmative to make out the preponderance of proof.

6. The rules of evidence are the same before a referee as before a jury. Improper testimony must not be heard before a referee any more than before a jury. The credi bility of the witnesses is to be weighed by the referce. The weight of evidence depends on the number, the ability, and integrity of the witnesses. One witness is sufficient to prove a fact in most cases; yet a number of witnesses corroborates and confirms. The ability of the witness is important in determining his credibility. The integrity of the witness is also important in weighing his evidence. A witness's veracity may become suspected from a variety of circumstances, although he may intend to speak the truth. He may be on terms of intimate friendship with the party on whose behalf he is called. He may have a pecuniary interest in the result. He may be of a near degree of relationship. He may be an inveterate enemy of the other party. He may swear to facts which are shown to be untrue by surrounding circumstances, though no other person were present. The deportment of the witness on the stand affects his credibility. Does he give his answers readily, and with an air of probability? Does he persist in the same premeditated recital and

the oath? When may a witness consult counsel? When must the advice of counsel be given? When may the parties admit certain facts? For what purpose? Which party must present the preponderance of proof?

6. What rules of evidence govern the trial before a referee? By whom is the credibility of the witness weighed? Upon what does the weight of evidence depend? What number of witnesses is required to prove a fact in a civil case? What is the effect of additional witnesses? what circumstances may the veracity of a witness be suspected? What

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uniformity of expression? Does his account betray any doubt or uncertainty in his own mind? Is his general reputation such that he is not to be believed under oath?

7. When one party has closed his evidence, the counsel for the other party opens his case, introduces his evidence, and rebuts the evidence given on the other side. After he has closed his evidence, the first party may introduce further evidence to corroborate and sustain his former evidence. The party holding the negative of the issue sums up the case first, and the party holding the affirmative closes the argument, and the case is submitted to the referee. The referee then adjourns the case indefinitely, so that he may deliberately weigh the evidence, and make up his report of the facts found by him, and his conclusions of law.

8. Under a decree of foreclosure, the court may appoint a referee to make the sale of the mortgaged premises. The referee gives the required notice, and superintends the sale of the premises, which must be made at public auction. The referee executes, acknowledges, and delivers the deed to the purchaser, and reports to the court his proceedings thereon.

9. In a partition suit, a referce may be appointed to advertise and sell the premises. IIe must then make his report of sale to the court, and have the same confirmed. When the sale is confirmed, he executes his deed to the purchaser, and pays the amount received to creditors and heirs, pursuant to the decree of the court. He makes his final report to the court, with the vouchers for all moneys

deportment of the witness affects his credibility? How does his character affect his credibility?

7. When one party has closed his evidence before the referee, what is the next action? After the second party has closed his evidence, what may the first party do? Which party sums up the case first? After both parties have summed up the case, what action is taken by the referee? For what purpose?

8. Under a decree of foreclosure, for what purpose,may the court appoint a referee? What action does the referee take?

9. In a partition suit, for what purpose is a referee appointed? What action is taken by the referee?