The opinion of the court was delivered by

Section one hundred and seventy-nine of the practice act authorizes any justice of the Supreme Court at the circuit to refer all actions in which matters of account are in controversy, subject to the provision of section one-hundred and seventy-seven, which provides that the parties-at the time of such reference may enter their dissent therefrom, and, at the term in which the report is filed, demand a trial by jury of exceptions to the report.

The trial by jury is thus saved to the parties who may feel aggrieved by the report, because the court has, upon its own motion, deprived them of a trial in this form by compulsory reference.

Where, however, as in this case, th.e parties, by agreement, consent that the cause may be referred to a referee chosen by themselves, and make that consent a rule of court, they cannot enter a dissent to the report and demand a trial by jury. They have chosen their own tribunal and must abide by the decision. The court will, however, control the report as the verdict of a jury would be. Excelsior Carpet Lining Co. v. Potts, 7 Vroom 301.

*103Rule one hundred and seven of the Supreme Court directs that unless the parties shall state whether the award shall have the effect of a finding or a verdict, and in the absence of such statement, the award shall be treated as a verdict. But there is no provision in this rule, or elsewhere, that will bring the case of a reference by consent of parties within sections one hundred and seventy-seven and one hundred and seventy-nine of the practice act.

The motion must be made to set aside the report or award as a verdict, for proper cause.

The motion for trial of exceptions' by a jury is refused, with costs.