Milliken and others agt. Byerly.

This is not specifically alleged; but if the purchaser were not in default then he has paid the defendant, and then clearly the defendant is liable; if the purchaser is in default it is admitted that the defendant is liable. The commission merchant who is to sell and guaranty payment, and is to collect the debt himself, differs from one who merely guarantees a debt which the creditor is to collect; in this last case it may well be that a demand of the principal debtor is necessary to make the guarantor liable.

The allegation that the defendant has sold the goods, and that the whole is due, together with the account showing the sales to have been made on 1st October at eight months, show sufficiently that the whole cause of action accrued before 18th June 1851, when the suit was commenced.

Judgment to be entered for plaintiffs on demurrer unless defendant make affidavit of merits showing the nature of his defence.

SUPREME COURT.

In the matter of the petition of GEORGE PADDOCK and another, for the removal of DRAKE B. PALMER, Trustee.

The court may remove trustees and receivers, for insolvency, but is not bound to do so. And especially an application for a removal on such ground should be denied, where it appears there is no other valid objection, and the insolvency existed and was known to the parties previous to the appointment.

MITCHELL, Justice.—The causes alleged by the petitioners for the removal of the trustee are that he is insolvent, an inebriate, and notoriously immoral, and that he has threatened to violate the trusts.

The affidavits in opposition to the petition fully repel the charge of inebriety and immorality, and show that the numerous and respectable parties making them, believe him fully competent to execute the trust.

The specifications of breaches of trust are in selling white pine joists and beams, and Georgia pine, below the fair market price. The opposing affidavits show clearly that the articles sold were

Paddock agt. Palmer,

of inferior quality and therefore sold for less than the market price for better articles of the same kind.

The threat to violate the trusts is denied, and disproved so far as such a matter can be disproved. There is no allegation that such sales were made intentionally too low.

The insolvency of the trustee is admitted; but it seems probable that that was known to the petitioners before they apppointed him; they had had a slight acquaintance with him before; they had asked him to act, and he at first declined, and they repeated their request, and he then yielded to their solicitation after consulting his friends.

The insolvency existed before his appointment, and has not accrued since; and after they knew all that they now know of the trustee, they or one of them, consented to his continuance on condition that Mr. Rockwell, his agent, should deposit all moneys collected by him in bank, to the credit of W. W. Scrugham, Esq. as attorney for Mr. Palmer, trusteee.

This arrangement was suggested by Mr. Kimball, the attorney for the creditor whose claim is nearly 9-11ths of the whole amount due, and all, or nearly all the other creditors express their desire that the trustee should continue in office.

Under these circumstances the petitioners have no cause to make the insolvency of the trustee a ground for his removal. The court may remove for insolvency, but is not bound to do so; and there are many receivers and trustees who are insolvent, but in whose hands the trust fund is safer than with some others who are men of wealth.

Here, too, the petitioners, although they have an interest in having a good trustee appointed, are not so much concerned in that matter as their creditors; their estate is not valued by themselves at more than $12,000, and the debts are over $11,000, without interest; and if Lyon's claim for $2,100, is good, are over $13,000. It is true that the majority in interest is not to control the court in such a matter, but it has great weight as evidence of what is most expedient.

The motion to remove the trustee is denied, with $10 costs to the trustee.

Holmes agt. Slocum.

SUPREME COURT.

HOLMES agt. SLOCUM.

A referee has no authority to report that the defendant is entitled to judgment of a dismissal of the complaint.

He has no power to dismiss a complaint and turn a party out of court, for unreasonable neglect to proceed in the cause. Nor to order an amendment of the pleadings or to change the issue which the court has sent to be tried. It seems, that the practice to compel a plaintiff to bring a cause to a hearing befote a referee, should be the same under the general provisions of rule 92, as under the rules (43) of 1847. The rules of 1849 making no specific provision in such cases.

Yates Circuit and Special Term, October 1851. Motion to set aside report of referee for irregularity. The action was brought to recover on an account and was referred by stipulation. The defendant noticed the cause for hearing before the referee for the 10th of July, and it was postponed by stipulation to the 21st of July. On the latter day the plaintiff served an order staying proceedings which the defendant disregarded. The plaintiff did not attend before the referee to try the cause. The defendant appeared and the referee reported " that the defendant is entitled to judgment of a dismissal of the complaint.”

R. P. WISNER, for Motion.

W. H. Kelsey. Opposed.

JOHNSON, Justice.-The affidavits do not show that the report of the referee has been filed, nor that any attempt has been made to enter any judgment upon it or to use it in any way to affect the plaintiff's right to proceed with his cause. It is clear that this is no report upon which any judgment could be entered as a matter of course.

The report of the referee upon the whole issue stands as the decision of the court and judgment may be entered thereon in the same manner as if the action had been tried by the court (Code, § 272; Rule 24). This is no report upon the whole issue or any part of it, and consequently no judgment of any kind could be rendered upon it without application to the court upon motion and notice.

Holmes agt. Slocum.

Where a cause is referred to a referee to hear and decide the whole issue, he is invested with all the necessary power and authority over the cause and over the parties to enable him to hear and determine every thing which properly belongs to the trial of a cause. He is to try the issue which the court sends to him to be tried. But for every other purpose the action and the parties remain in court. The referee has no right to order an amendment of the pleadings or to change the issue which the court has sent to be tried. Nor can he dismiss a complaint and turn a plaintiff out of court for unreasonable neglect to proceed in the cause.

These are mere matters of practice which belong solely to the court and over which the referee has no jurisdiction.

The power of a referee in regard to causes referred to him to hear and decide is not essentially enlarged or altered by the Code, § 421. And surely it was never heard that a referee could render judgment as in case of non suit or make any order in a cause upon which such a judgment could be entered of course. The dismissal of the complaint is equivalent to judgment as in case of non suit under the former practice, and is a substitute for it.

It is said this practice has prevailed to a considerable extent since the Code, but it is clearly unauthorized, and should be corrected. But, it is asked, how is the defendant to compel the plaintiff to proceed in the action after it is referred?

Rule 23 provides that the defendant may move for a dismissal of the complaint whenever an issue of fact is joined and the plaintiff shall fail to bring the same to trial according to the course and practice of the court (see also Code, § 274). Before the rules of 1849, "the course and practice of the court" in regard to cases referred was this. If the plaintiff did not bring the same to a hearing within forty days after the reference was ordered, the defendant was at liberty to serve him with a notice requiring him to bring the cause to a hearing within forty days thereafter, and if the plaintiff failed to comply the defendant moved for judgment as in case of non suit (Rule 43 of Rules of 1847; Rules of 1845). As the rules of 1849 make no specific provision upon this subject, I apprehend the former practice is still in force under the general provisions of rule 92. Formerly,

Holmes agt. Slocum.

if the plaintiff did not proceed and bring his cause to a hearing, the defendant applied to the court for leave to notice the same for hearing on his part, and if on such notice the plaintiff failed to appear, the defendant proceeded before the referee and might take a report that nothing was due the plaintiff, or if he claimed any thing to be due him by the pleadings, introduce his evidence and take the report in his favor for the amount proved to be due (Bissell vs. Lee, 16 Johns. 45; Shelden vs. Erie C. P., 12 Wend. 268). But this was changed by the rules of 1845.

It is unnecessary to examine the question whether a defendant can notice a cause for trial before a referee in this case, as it was adjourned by stipulation. Section 256 of the Code, which authorizes either party to give notice of trial at least ten days before the court, and furnish the clerk with a note of issue seems to relate exclusively to issues to be tried at the circuit; and section 258 of the Code, which authorizes the party giving the notice to bring the issue to trial and in the absence of the adverse party to proceed with his case and take a dismissal of the complaint, unless the court for good cause otherwise direct, clearly has no reference to a trial before a referee.

But I can see no necessity for making this motion. It is clear that a referee can not turn a party out of court, and any attempt on his part to do so would be a mere nullity. He may nonsuit a plaintiff upon a trial because his proof does not sustain his cause of action; but that is a decision upon the merits on the trial of the issue, and has nothing to do with the question before Should the defendant attempt to enter judgment on this report without notice to the plaintiff the court would interfere and set the order or judgment aside as irregular.

us.

But for aught that is made to appear, the plaintiff may now proceed with his cause before the referee. It has not been heard or decided. There has been no trial and no decision except upon a mere question of practice. Perhaps, however, to avoid all question as to the right of the plaintiff still to proceed with his cause before the referee, it is better to order this report to be set aside, and all subsequent proceedings, if any have been had. Ordered accordingly.