Lead Opinion

FROM HILLSBOROUGH CIRCUIT COURT. The language of the statute is quite too plain to admit of question, that actions of this sort may be referred. But were it otherwise, I think any objection on that account should be regarded as waived by the defendant, — first, by not objecting at the time the order of reference was made, and, second, by appearing before the referee, and going through with a hearing.

The course pursued by the referee at the trial was clearly right. What authority can be found for any such practice as it would have been for the learned referee to consider and act upon evidence which had been laid before him years before, on a trial between the same parties, where he acted as judge?

I do not see that the amendment of the case suggested could be material in any view, and I think an order as to alimony should be entered in accordance with the report of the referee.

Concurrence Opinion

Counsel suggests, in argument, that the plaintiff tried her case before the referee upon a new theory, entirely different from that brought forward upon a former hearing. I cannot see that she was bound to try her case on the same evidence or the same theory on which she had tried it before. If she had tried it on an inconsistent theory, and on evidence contradictory to what she had given or adduced before, no doubt the counsel might have called the referee's attention to it, and, in some form, might have had the benefit of it.

It is not claimed that this is one of those cases in which the parties have, by law, a right to a trial by jury; and the terms of the statute leave no doubt that the reference in this case was lawful.

I think there should be judgment on the report. *Page 514

Concurrence Opinion

I concur. It seems very clear to me that the words of the statute are broad enough to cover libels for divorce. I also think that the referee did right in hearing the cause de novo.

Judgment on the report.