Griffing v. Slate & Gardiner , 5 How. Pr. 205 ( 1850 )

Edmonds, Justice.

A report of a referee does not require confirmation where it is not intended to be made the foundation of any future discretionary act of the court. This rule has some exceptions which it is unnecessary to mention here, because in no respect affecting this case.

But where a report is required for the purpose of enabling the court to make some discretionary order or some decree thereon, whether the order directing the reference be made upon decree or upon an interlocutory application, the report requires confirmation before it is adopted as the foundation of such future order or decree.

The report in this case is one which requires confirmation, for upon it the court is to pronounce its judgment as to the damages which the defendants have sustained by reason of the injunction and is to determine whether the injunction bond shall be ordered to be prosecuted (2 Danl Pr. 1486; Otley vs. Pensam, 1 Hare, 324; Empringham vs. Short, 11 Sim. 78; 1 Barb. Ch. Pr. 550), The mode of obtaining confirmation is not the same in all cases.

If the reference be made on the hearing or upon further directions, there the practice is upon filing the report to enter an order of course, to confirm the report, unless cause to the contrary be shown in eight days after service of notice of that order.

But where the report is the consequence of orders made On motion or petition, the confirmation can only be by special motion, or on petition.

The report in this case is one of the1 latter kind, and can be confirmed only on special motion. That tiot having been done in this case, the plaintiff can not have his motion to prosecute the bond. He must first get his report confirmed on a special, motion for that purpose. Motion denied with costs.