Plant v. Fleming

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.