It has been the general understanding of the profession, that a party, by moving for or assenting to a reference of his case under the act of 1874, did not waive his right to the jury trial provided by that act. And the defendant’s motion for a reference is to be interpreted, in view of the general understanding, not as a waiver of such jury trial, but as a waiver of objection to the application of the whole referee law to his case, — a waiver of objection to the course of proceeding prescribed by the act, one part of which is the use of the referee’s report as evidence in such jury trial.

The second question was decided in Deverson v. Eastern Railroad, ante, p. 129.

Case discharged.