Scott v. Becker , 3 How. Pr. 373 ( 1849 )

Mason, Justice.

I am entirely satisfied, after a careful examination of the provisions of the code, that they are-not applicable to a case made to review the report of referees made in a suit pending when the code took effect. Section 271 of the code does not reach the case. It is not a case where a writ of error or an appeal was allowed before the code, nor is it a ease where the court reviewed the judgment by the former practice. The court only reviewed the trial and ascertained whether there were errors committed by the referees, and besides, section 280 of the code is not made applicable to pending suits, and the same is true of section 297 of the code, which provides for an appeal in the Supreme Court, and § 223 of the code, which provides for the mode of reviewing the trial upon a case is not made applicable- to the suits pending when the code took effect; and section 227 of the code, which requires the judgment upon the report of referees to be reviewed on a case in the same manner as is provided in section 223 of the code, for a trial by the court is also not made applicable to suits pending when the code took effect, and without going into any further examination of the code I would say that after a careful examination of the provisions of the code in relation to reviewing the report of referees made in a case pending on the first Monday of July, 1848, that I find none of the provisions of the code applicable to such a ease, and the case is left to the practice as it existed prior to the code, under which practice there was no such thing as an appeal or the giving of security. The Defendants’ attorney has been strictly right in pursuing the former practice in this case, and the Plaintiff’s motion to set aside the Defendants’ case, and to vacate the order staying proceedings must be denied, but as there has been so much confusion in the practice in relation to this class of cases, growing out of the very great change which has been produced by the Code of Procedure, I shall not give the Defendants'the costs of opposing this motion.