Furbish v. Ponsardin , 1876 Me. LEXIS 165 ( 1876 )

Appleton, C. J.

This case was referred by rule of court. The award of the referee being offered for acceptance, the defendant moved its re-eommitment on the ground of newly discovered testimony. The evidence offered in support of the motion having been heard, the presiding justice refused to re-commit and accepted the award, to which the defendant alleges exceptions.

The acceptance or rejection of an award or report of a referee is a question of discretion, not of law. If the court to which the award is returned refuses to re-commit it, the decision is not subject to revision by a court of law on exceptions. In Walker v. Sanborn, 8 Maine, 288, it was held that the question of the re-commitment of a report of referees appointed under a rule of court is one addressed to its discretion, and that its decision is not the subject of a bill of exceptions. In Cutler v. Grover, 15 Maine, 159, Whitman, C. J., says, “whether the report should be accepted or rejected, upon the evidence adduced in the court below, depended upon the discretion of the judge. There is no proper ground upon which we can set aside his judgment and substitute our own.” In Preble v. Reed, 17 Maine, 169, 172, it was decided that the acceptance or rejection of the report of referees was a discretionary power entrusted to the court, and that exceptions could not be alleged to its exercise of such power. In Harris v. Seal, 23 Maine, 435, 437, the previous decisions of this court were affirmed, and it was held that the refusal to re-commit a report would be no legal ground for exceptions.

The justice presiding heard the proofs and the arguments of counsel, and upon full deliberation accepted the report of the referee. His judgment is conclusive. His discretion is final. It must determine the rights of the parties.

Exceptions overruled.

Dioeerson, Barrows, Danrorth, Virgin and Libbey, JJ., concurred.