In this case I concur in the result, but I cannot assent to the doctrine that a Circuit Judge has no power to review and reverse a referee’s findings of fact in a law •case. On the contrary, in my judgment, it is his duty to do so when a case proper for that result is made. Even under the old code it always seemed to me a misuse of terms to speak of a •trial by referees. A trial is defined as “the judicial examination of the issues between the parties, whether they be issues of law or fact.” Old Code, § 275; New Code, § 278. The word “judicial” implies the action of a court, or some agency thereof under its direction. Hence there is no impropriety in speaking of a trial by jury, for that is conducted in the presence and under the direction of the court, and the judgment is entered on the verdict by the direction of the court, either express or implied. A referee, however, is not a court. He is not mentioned among the several courts provided for in the constitution, nor among those established by the legislature under the authority of the constitution. See Qode, § 9, where the several courts are mentioned. The Circuit Court has no authority to delegate its powers to a referee. It can only use him as an agency, or as a *21part of its machinery to facilitate the disposition by the court of such business as may be brought before it. But it cannot invest him with power to determine any issues, either of law or fact, except subject to its supervision and review.
. Hence I always believed that, notwithstanding the somewhat equivocal language of section 296 of the old code, no judgment could be entered upon the report of a referee until it was confirmed by the Circuit Court, and such I understand to have been the practice even under the old code. In the case of Kirkland v. Cureton (4 S. C., 122), which is sometimes cited in opposition to this view, it will be found by reference to the last paragraph on page 124, that the judgment was' entered on the report of the referee “by order of the court,” and the appeal was from the judgment so entered. So that this case confirms my view as to the prevailing practice. But the question now presented arises under the new code in which the language which was supposed to give authority for the entry of a judgment on the report of a referee, without any confirmation by the court, has been omitted, evidently with the intention of abrogating such provision, and must be determined by the provisions of the present code.
Section 294, in speaking of referees and masters to whom the issues in an action have been referred, declares : “They must state the facts found, and the conclusions of law separately ; and their decision must be given, and may be excepted to and reviewed in like manner and with like effect in all respects as in cases of appeal under section 290 ; and they may in like manner settle a case or exceptions. When the reference is to report the facts, the report shall have the effect of a special verdict. When the case shall have been heard and decided upon the report of the referee and exceptions, the decision may be reviewed on appeal to the Supreme Court.” It is clear from this language that the referee is required to report, not merely the general conclusion at which he has arrived, as in case of a jury, but he must report separately the facts and his conclusions of law therefrom; and his decision, which must necessarily be the combined result of his findings of fact and law, “may be excepted to and reviewed.” By what court is not expressly stated, but it is manifest from the other portions of the section that the* Circuit Court *22is intended, and not the Supreme Court; for the provision at the end of the section that the case, after being heard and decided upon the report and exceptions,.may be reviewed on appeal to the Supreme Court, furnishes conclusive evidence that the intention was that the report and exceptions should be heard by the Circuit Court; and this, as I understand, is not controverted.
Now, if the section had stopped at the words last quoted, would it not necessarily follow that the permission to except to and review the decision of the referee, compounded of findings of fact as well as of law, involved the right to review questions of fact as well as law ? But the section does not stop there, but goes on to provide the manner in which such decision may be excepted to and reviewed, “in like manner, and with like effect in all respects, as in cases of appeal under section 290.” This is precisely the same as if the language of section 290 had been incorporated in the section. Turning to that section we find the following language: Subdivision I. “For the purpose of an appeal, either party may except to a decision on a matter of law arising upon such trial within ten days after written notice of the filing of the decision,” &c. Subdivision II. “Avid either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of court, make a case or exceptions in like manner as upon a trial by jury, except that the judge, in settling the case, must briefly specify the facts found by him and his conclusions of law.”
Now, if this language be incorporated into section 294, that section would then read: “Their decision (that is, referees’) must be given, and may be excepted to and reviewed in like manner, and with like effect, in all respects, as in cases of appeal under section 290, that is to say: 1. Either party may except to a decision on a matter of law arising upon such trial within ten days after written notice of the filing of the decision. * * * 2. And either party desiring a review upon the evidence appearing on the trial, either of questions of fact or of law, may, at any time within ten days after notice of the judgment,” &c. Clearly if the section read in this way, as it practically does, *23there could be no doubt that the report of a referee could be excepted to and reviewed for error in his findings of fact as well as of law, for it is distinctly, and in terms, provided for. It seems to me clear, therefore, that the Circuit Court has jurisdiction to review the findings of fact as well as of law by a referee.
But it is contended that this power of review, so far as findings of fact are concerned, is limited to the ordering of a new trial, and does not warrant the reversal of such findings. It being conceded, as I understand, that the power to review embraces the power to reverse findings of law, I am unable to perceive any reason why the power to review does not likewise embrace the power to reverse findings of fact. The power to review both of these classes of findings is given in the same section, and practically in the sanie language; and not finding in the section any distinction between them in respect to the extent of the power conferred, I am unable to discover any warrant for such distinction. But in addition to this, so far as I have been able to discover, the Circuit Court has not been invested with power to grant new trials, except in cases tried by a jury (G-en. Stat., §§ 2113, 2652), and in the absence of any such grant of power in a case tried otherwise than by a jury, the power to review must necessarily include the power to reverse, afiirm, or modify.
Indeed, it seems to me that the power to order a new trial in a case which had been referred to a referee would lead to singular, if not unfortunate, results. Before whom would the new trial be had, the same referee or another ? If before the same referee, is he to surrender his deliberate judgment at the dictation of the Circuit Court ? If he is not, then no practical good would result from the new trial, but simply delay and additional expense. If he adheres to his original opinion, can a new trial be ordered toties quoties ? If before another referee (which, however, could not be without the consent of the parties), and he should reach the same conclusion as the first, how often would the process be repeated ? These, and other considerations which might be mentioned, may afford the reason why the power to grant new trials has only been given in cases tried by a jury, the constituent members of which are changed at every court. But *24be that as it may, as I am unable to find any authority for a Circuit Court to order a new trial, except in a case which has been tried by a jury, I am forced to the conclusion that the power undoubtedly vested in a Circuit Judge to review the findings as well of fact as of law, necessarily includes the power to reverse, affirm, or modify such findings.
The argument drawn from the fact that the Supreme Court has no power to reverse findings of fact in a law case does not strike me with much force. That limitation upon the power of this court is found, not in the sections of the code above cited, which deal with the question under consideration, but in the constitution, in which no reference is made to such question. Indeed, the argument would prove too much, for inasmuch as this court has no power to review in a law case the facts even for the purpose of granting a new trial, it would follow that the Circuit Court would have no power to review the findings of fact by a referee even for the purpose of granting a new trial. If the jurisdiction of the Supremo Court in appeals was defined only in the sections of the code which we have cited, unaffected by the provisions of the constitution, as is the case with reference to the jurisdiction of the Circuit Court to review the report of a referee, then such jurisdiction would not be limited to the correction of errors of law only, but would extend to the correction of errors of fact also by the express terms of those sections; but as the constitution, which is of superior authority, does place such a limitation upon the jurisdiction of the Supreme Court, the comprehensive language of those sections, when applied to the Supreme Court, must necessarily be narrowed down to the limits fixed by such superior authority. But when we are called upon to construe the language of those sections, with a view to ascertain the extent of the jurisdiction of the Circuit Court in reviewing the report of a referee, as to which there is no constitutional limitation, we are bound to give that language its ordinary and plain meaning, and so construing it there can be no doubt that the power of review extends to findings of fact as ivell as of law.
Nor will it do to say that the language of subdivision 2 of section 290, which in terms gives the power to review findings of fact, must bo regarded as referring only to cases in chancery,' *25and not to law cases. There is no warrant in the language of the section, or anywhere in the chapter in which it is found, for such a construction. On the' contrary, it is found in a chapter entitled “Trial by the Court,” and the first section of it (288) prescribes how a trial by jury may be waived in actions' on contract, plainly referring to law cases, and not cases in' chancery. The next section (289) treats of the trial of a question of fact by the court, and then follows the section which is referred to in section 294 as prescribing the manner in which the decision of a referee may be excepted to and reviewed in any case — whether at law or in chancery, is not specified; and hence I conclude that the same mode of proceeding applies to both classes of cases, and it being conceded, as I understand, that a Circuit Judge, in a case in chancery, may reverse, affirm, or modify the referee’s findings of fact as well as of law, I see no reason why he has not the same power in a law case.
This conclusion does not abridge a party’s right to a trial by jury in a case in which he is entitled to such a mode of trial, for it is only by his consent that such a case can be referred to a referee, and when lie gives such consent, he must be regarded as consenting to the necessary incidents to a reference, one of which is, that the report of the referee can be excepted to and reviewed by the Circuit Court, and upon such review that the findings of the referee, both of law and fact, may be reversed, affirmed, or modified.