The opinion of the Court was delivered by

The error relied on to reverse this judgment, is, that the trial was by referees, and not by a jury, and that the reference was not authorized. On looking into the record, it appears that there is an entry upon the minutes, which recites that “ the parties came by their attorneys, and defendant by his attorney, moved the Court, that the cause be referred,” &c. Thus the reference was made on the appellant’s motion, and in one of the modes pointed out by law “ by oral consent in . open Court entered on the minutes.”

It is only necessary to state thus much to show that the ob*358jection is entirely unsupported. Indeed the case must be treated as a delay case, and the judgment affirmed with ten per cent, damages and costs.

Anderson, Justice, concurred.