Majority
p. 97Melvin vs. Leaycraft.
Headnote
On the refusal of a court of common pleas to set aside a report of referees for alleged errors of the referees, if the losing party desires to review such decisions, he must procure a statement of facts not the evidence of the facts, to be drawn up under the direction of the common pleas, and placed upon the record in the form of a special or supplementary report of the referees, in the nature of a special verdict or bill of exceptions[1]
p. 98
This was a' writ of error to the common pleas of New York, to reverse a judgment rendered upon a report of referees. Application was made to that court, upon affidavits, to set aside the report for alleged errors of the referees. The report was confirmed, and judgment rendered accordingly. The defendant sued out a writ of error, and in the record brought into this court were incorporated the affidavits produced upon the motion to set aside the report. On this being discovered, when the cause came on to argument, The Court handed back the error books, saying that the plaintiff in error instead of presenting his case in the form in which it appeared, should have obtained a statement of the facts (not the evidence of the facts), upon which the decision of the common pleas was founded, to be drawn up under the direction of that court and placed upon the record in the form of a special or supplementary report of the referees, in the nature of a special verdict or bill of exceptions, according to the suggestions of Chancellor Walworth, in the case of Feeler v. Heath (11 Wendell, 447).