The sun., 1880-12-13

Some OF tho most serious objections to
trials before referees would be obviated II
those officers were not 30 won't to depart
from the modes Of trial pursued in court.
A referee ought to try a case as nearly as
possible In the same manner as 1t would be
tried by single Judge at Special Term.
Any departure from that method is likely
to give rise to difficulty and dissatisfaction.
as has recently been illustrated by two cases
which came before Judge LARREMoRE at the
November Special Term OF the Court Of
Common Pleas.
In one OF these cases it was charged that
the referee was absent from the room in
which the trial was conducted while por-
tion Of the testimony was being takon. A
stenographer was in attendance taking
down the evidence and counsel on both sides
proceeded with the examination Of the wit
ness then on the stand without objection on
account OF the absence Of the referee. But
this shorthand writer appears subsequently,
to have become dissatisfied by reason of the
nun-payment of his fees, and thereupon he
carried of his minutes to the State OF Rhode
Island. Their summary expectation in this
manner had, it was alleged, deprived the
referee OF all opportunity to read the evil
dence given during his absence; yet he had
proceeded to render Judgment.
Now, Of course 1t is perfectly clear that
no valid Judgment could be rendered n the
referee had in fact neither heard nor read
the testimony so given; but he denied the
charge showing that counsel had gone on
with their questions by consent during his
temporary withdrawal from the room, and,
furthermore, that he did In fact read the
stenographer's notes Of the very testimony
then taken, before thoir removal from his
Office. The most that can be said, therefore,
is that in deciding the case he considered
evidence which indeed he had not heard,
but which both parties intended no should
road instead.
Although the referee may thus be exon
Grated from all blame, 1t is nevertheless
plain that adherence to the truo rule Of con-
tinual presence throughout every moment
OF tho trial Is the only wise and prudent
course. Referees themselves ought to re-
fuse their consent to any proceedings being
had in their absence, even though counsel
may desire to go on. II that course had
been pursued In the case We have men,
toned, an unpleasant and annoying con-
ever heard OF a trial in court at Special
Term being allowed to proceed in the alb
scncc OF the Judge; and hereafter it ought
10 be equally impossible for q reference to
proceed in tho absence OF the referee.
The carcessness OF referees in allowing
their minutes Of testimony to go out OF their
possession is also tho source OF no little
trouble in litigation. A referee ought never
to part with his notes Of the evidence taken
In case tried before him. Thoy should be
under his control always, just as similar
notes taken In court always remain under
the control Of the Judge. II stcnographer
has been employed. when his transcript Of
the testimony Onco comes into the possess
sion oI the referee 1t should remain there.
The parties to the suit or their counsel may
examine II as much as thoy like. but they
must not tako 1t away. This would be tho
proper practice; and. once established, NO