" In Deverson v. Railroad, 58 N.H. 129, Smith v. Fellows, 58 N.H. 169, Garland v. Towne, 58 N.H. 187, Daniels v. Lebanon, 58 N.H. 284, and Parker v. Burns, 57 N.H. 602, it was held that a party who moves and urges the reference of his cause under section 13, chapter 97, Laws 1874, accepts the provisions of the statute and waives his right to object to the constitutionality of the provision that makes the referee's report evidence upon a jury trial. In Dow v. Savings Bank, 59 N.H. 391, the plaintiff, a creditor of the defendant bank, voluntarily submitted his claim to the determination of a commissioner appointed under section 16, chapter 166, General Laws, and it was held that by so doing he waived his right to question the constitutionality of the statute making the decision of the commissioner final.
The defendant admits that by assenting to the order of reference made under the act of 1874, he waived "any objection which he might otherwise have taken to the use of the report as evidence upon the trial before the jury." Parker v. Burns, 57 N.H. 602, 604, 605; Deverson v. E. R. R., 58 N.H. 129; Smith v. Fellows, 58 N.H. 169; Garland v. Towne, 58 N.H. 187; Daniels v. Lebanon, 58 N.H. 284; Boyd v. Webster, 58 N.H. 336, 337; Strong v. Willey, 104 U.S. 512; Baird v. Mayor, 74 N. Y. 382. His position is, not that there was error in so much of the order of 1877 as says the action was recommitted by agreement, but that "the only objectionable feature was the finality clause," which, being contrary to the recommitting agreement, and not authorized by law, should not be enforced against his objection, made at the first opportunity and never waived. He contends that he was entitled to specific findings of fact on certain points in the report, "and to any benefit which he might derive from the use of the report as evidence upon these points; "that because his request for such findings was not complied with, he moved to recommit; that the additional report was incomplete, and he again moved to recommit for a statement of his exceptions, to which he was entitled for the reason that his exceptions, if sustained, "would go to the use of the report
By the statute in force when the action was referred, it was provided that, in actions in which the parties should agree to a reference, judgment on the report of the referees should be final and conclusive. Laws of 1876, c. 35, s. 1; Laws of 1877, c. 20, s. 1. By agreeing to a reference, the plaintiff accepted all the provisions of the statute under which the reference was made, and waived the right of review. Parker v. Burns, 57 N.H. 602; Deverson v. Railroad, 58 N.H. 129; Smith v. Fellows, 58 N.H. 169; Garland v. Towne, 58 N.H. 187; Daniels v. Lebanon, 58 N.H. 284. Dismissed.
The reference being by the agreement of parties, the objection to the use of the report as evidence before the jury was waived. Laws of 1875, c. 35, s. 3; Laws of 1874, c. 97, s. 13; Garland v. Towne, 58 N.H. 187; Smith v. Fellows, 58 N.H. 169; Daniels v. Lebanon, 58 N.H. 284. The statute required the referee to state specifically his rulings upon all questions of law, and all matters of fact found proved, if either party requested. The plaintiff having made the request, the referee properly complied with the statute, and his report was not rendered incompetent as evidence because it contained matters required by law.