The opinion
RodmaN, J.,
(dissenting.) I dissent from so much of the opinion of the Court in this case, as decides that the parties have a right to a trial by jury of the questions of fact made by exceptions to the report of a referee, upon a compulsory reference. I do not think that this right is given either by the Constitution or by C. C. P. in any case except that of issues joined in the pleadings.
In Keener v. Finger, (at this term,) it is held, upon a misconception, as I respectfully think, of the meaning of the words “issues of fact” in the Constitution, that this Court has no right to review the findings of facts by the Judge below in any case. 1 he logical result was to make the Judge the sole and final judge in all such questions of fact as arose otherwise than upon the pleadings. This was an admitted danger, and to avoid it, it is necessary to hold, as is done in this ease, that a party is entitled of right to a trial by jury of questions of fact such as I am speaking of. I think this Court, under its general power to control the practice of the Superior Courts, has a right to require the Judge to submit all such questions to a jury. But I think the rule will be found very inconvenient, if not impracticable, in practice. • There is a class of cases, embracing all complicated accounts, which were held from the very earliest times incapable of being heard and properly determined by a jury. While a jury was thought the best and safest tribunal to try one, or only a few simple issues of fact, such as were those raised by the pleadings at common law, it was thought obviously inadequate to try the numerous issues *33 arising on a single disputed account, if complicated, or on mutual accounts. These were referred in the common law courts to auditors and in chancery to a master. This long established practice had its origin in the nature of things, and I fear our experience will show that it cannot be wisely changed. That this decision is necessary to preserve a consistency with that of Keener v. Finger, and to avoid the evil to result from that decision, I think is an argument against the decison in that case ; since it is found necessary to avoid one evil result by introducing another.
The proper rules I take to be these:
1. Issues of fact (meaning thereby only those made by the-pleadings) are of right triable by a jury, and no others are.
As to how far a verdict is under the control of the Court there is no question. The rules are well known.
2. The trial of such issues of fact may be waived and given to referees or to the Judge, in which eases the finding has the-effect of a verdict.
3. Certain matters may be referred eompulsorily. The finding of the referee, both as to fact and law, may be reviewed by the Judge of the Superior Court on exceptions, or on a case settled before the referee, and the findings of the Judge may. in like manner be reviewed in this Court.
4. All questions of fact which arise incidentally or otherwise than upon the pleadings, and not on exceptions to a report upon a compulsory reference, such as questions upon a motion to grant or vacate an injunction, to vacate a judgment, amend a record, &c., are triable by the Judge, and his finding might be reviewed by this Court. There is no prohibition on this Court to do so by the Constitution or the C. C. P. But it would be inconvenient m general for this Court to do so, and. for that reason it held before its re-organization in 1868, and, has since held, except in the case of injunctions, it would not; do so. This class of eases has been so well defined as not often to be mistaken.