thens upon the

power to do so.

Gere agt. Supervisors of Cayuga.

public any farther than the statute gives him And all persons employed by him are bound to know the law and take notice of the extent of this statutory power. The board of supervisors were not bound to include the judgment in the tax to be laid upon the county, although it was against an overseer of the poor, and for services rendered to a pauper at his request, unless the judgment was rendered "on account of the liability of such county" (2 R. S. 474, 475, § 102, 103).

It was manifestly the duty of the board of supervisors to inquire and ascertain whether the county was liable for the services before allowing the judgment, and including the amount in the tax to be levied. They were by no means concluded by the judgment, but had the right to go behind it, and inquire into the character of the services upon which it was founded.

As the county, under no circumstances, could be made liable for any greater sum than ten dollars in such a case, the mandamus to compel the allowance of the whole judgment must be denied.

But I am of opinion that the overseer in the administration of temporary relief, within the limit of his powers, was not bound to employ the physicians with whom the superintendents had entered into contract. To the extent of his authority it is a discretionary power, to be exercised according to his own judgment. This power of giving temporary relief to this limited extent, is vested in the overseer of the poor in the town by statute, and the superintendents have no right to overrule or control him in the exercise of such powers. Nor is he in any way answerable to them for an indiscreet or injudicious exercise of his discretion. It might have been much more economical and quite as serviceable to the pauper to whom the relief was afforded, had the overseer employed the physicians who were under contract to administer to all paupers within the district. But I do not think he was bound to employ them. If he had a duty to perform, it was his right to exercise his own judgment in the premises, and employ such physician as he deemed most competent to prescribe for the case (Exparte Green and Brown, 4 Hill, 558).

It is not pretended that it was not a proper case for temporary relief to be ordered by the overseer. And, as the case stands,

Leaycroft agt. Fowler.

had the judgment been for ten dollars, it being for relief in a single case only, or had the applicant only asked the board of supervisors for the allowance of ten dollars upon the judgment, it should, in my judgment, have been allowed and included in the amount of the county tax. But as they were required to allow the whole judgment, their refusal was proper. That being the ground of the application here, the mandamus is denied.

SUPREME COURT.

LEAYCROFT agt. FOWLER.

The consent to refer, required by § 270 of the Code, may be written by the parties or their attorneys, or by the clerk entering their consent in the minutes of the court, or by the referees in their minutes, such consent being made before them.

The parties also may waive by their acts any further writing than the entry on the minutes of the referee, if more were otherwise necessary.

New York Special Term, October 1852. The parties by consent duly entered, referred this action to two referees; the referees found in an early stage of the proceeding that they probably would not agree, and proposed to the parties the addition of a third referee. To this the attorneys assented, and Mr. Hoffman was mutually agreed on; being suggested by Mr. Poisson, whom the defendant's attorney had at first proposed, and then proposed by the defendant's attorney himself. At the same time the referees entered in their minutes, " at this stage of the proceedings Mr. Edward Hoffman was added as a third referee by consent." After this Mr. Hoffman continued to act without any objection to him; he joined with another referee in a report against the defendant; the defendant obtained time to make a case to set aside that report on the merits, and made a case accordingly. After the case had been more than once noticed for hearing on the merits, the defendant first started the objection that Mr. Hoffman was not regularly appointed, because the parties had not signed the consent.

Graham agt. Goulding and others

MITCHELL, Justice. It is enough under the Code (§ 270), if the appointment of referees be made on the written consent of the parties; this may be written by them or by their attorney, or the clerk of the court entering their consent in the minutes of the court, or the referees, who stand in the place of the court, entering it on their minutes. This last was done here and was sufficient. The parties also might by their acts waive any further writing than such as existed on the minutes of the referee, if more were otherwise necessary, as they may waive a trial by twelve jurors by allowing eleven, or any less number, to act without objection. The subject is so well treated in Keator agt. Ulster and Delaware Plank Road Co. (7 How. Pr. R. 41), that a reference only to that case is necessary.

Good faith required that the defendant should never have raised the objection, and that he should have immediately supplied any defect in form in the appointment, if there was any. It is proper, therefore, that he should pay the costs of both motions.

The motion to set aside report of referees is denied with $10 costs; and the motion that the name of Mr. Hoffman be entered as one of the referees, as of the day when the consent was first given, is also granted with $10 costs to the plaintiff.

SUPREME COURT.

GRAHAM agt. GOLDING AND OTHers.

Where the necessity of examining a long account, depends upon the decision of another issue in the action, as whether a partnership existed, a reference will not be ordered until that issue has been first tried.

New York Special Term, September 1852. The action was against a judgment debtor, and against other persons who were said to be, in fact, his partners, but pretending to be his employers, and the plaintiff claims an account of the debtor's share in the supposed partnership. The partnership was denied by the defendants. The plaintiff asked for a reference on the ground that the examination of a long account would be necessary.

Trotter agt. Latson.

MITCHELL, Justice. It is admitted that no account will be necessary if the plaintiff fails to prove a partnership. The issue substantially is, whether there is a partnership or not; and then if the plaintiff succeeds, the accounting would follow to ascertain the amount which he is entititled to recover. Thus the accounting is like an inquiry to assess damages, and until it is known that there is a partnership, it can not be said in this case that the trial of the issue of fact will require the examination of a long account. In one case, that has occurred in this court, the previous dealings of the parties and their contract was such, that the question whether there was a partnership or not could only be ascertained by first going into the accounts-the plaintiff being entitled to be a partner on his bringing into the business a certain amount of capital, and he insisting that he had done so, and that the books would show it-there the reference was ordered. But here the question of partnership or not, does not turn on any such peculiar circumstances. The general rule, therefore must prevail, that the question of partnership be first settled by an issue, or by the court, before a reference can be ordered by the court. Motion for reference denied, without costs.

SUPREME COURT.

TROTTER agt. LATSON.

A party to the action can not be compelled by service of a subpœna duces tecum, issued ex-parte, without any order of the court or a judge, to produce his books and papers on the trial,

New York Special Term, November 1852. This was, in effect, a motion to commit the defendant for not bringing his books and papers before a referee, in compliance with a common subpœna duces tecum, issued without any order of a judge, previously obtained for the purpose.

ROOSEVELT, Justice.-As the law now stands, a party may be compelled to testify as a witness, " in the same manner and sub

Trotter agt. Latson.

ject to the same rules of examination as any other witness." (Code, § 390).

Does this language necessarily import an obligation not merely to answer orally, but to bring with him and exhibit his books and papers?

A liberal construction, such a construction as is generally applicable to the provisions of the Code, might, and under ordinary circumstances probably would, justify such a conclusion, if necessary to prevent a failure of justice.

Here, however, no such failure would result. Section 388 provides that the court, or a justice thereof, may, in their discretion, and upon due notice, order either party to give to the other an inspection and copy, or permission to take a copy of any books, papers and documents in his possession, or under his control, containing evidence relating to the merits of the action or the defence.

The special case, therefore, is specially provided for. It is not left to doubtful inference from general expressions. And from the guarded language of the section it is obvious that the books and papers of a party, however private and confidential, were not to be invaded by strangers as a matter of course. Due notice is first to be given to him. The facts and circumstances, on which the claim to the discovery is founded, must be stated in writing, and verified by affidavit (Rule 9). And the necessity of the discovery must also be certified by counsel and sworn to by his client. Counter statements may be made, and both parties must be heard, or have an opportunity of being heard by the judge, on the whole matter. And even then, the order is not a matter of course. The judge has a discretion, and in proper cases should exercise it, to deny the application.

This power, it should also be observed, is not given to any clerk or ministerial officer, or even to a referee, but to 66 the court or a judge or justice thereof."

My conclusion is, that the defendant was not bound, on a subpœna, issued ex parte and without a previous order to produce his books before the referee, and that he has, therefore, committed no contempt of court in refusing to do so.

Motion for attachment denied without costs.