Application for the retaxation of costs. In a suit by the appellee against the appellant, the court below, of its own motion, over the appellant’s objec*194tion, and while he was urging an immediate trial by jury, referred the cause to a commissioner to take proofs.' The commissioner never reported. A continuance resulted from the reference, and some costs were made before the commissioner. There was a final judgment against the appellant for damages and costs. The appellant claims that the costs occasioned by the continuance, and those made before the commissioner, ought to be taxed to the appellee, on the ground that the court had no authority to order the reference without consent of parties.. This the court below refused to do.

It does not appear from the evidence who made the costs complained of. If they were the appellant’s own costs, it would not be just to tax them to his adversary, who had no agency in procuring the action of the court which produced them. In this view the question is disposed of, without expressing any opinion as to the reference.

The judgment is affirmed, with costs.