that, until the attorney-general intervenes, the continued discharge of its governmental functions by such a body cannot be arrested. In the case of Attorney-General v. Town of Dover, 62 N. J. L. 138, 140, the principle is thus stated: "No private citizen can challenge the legal existence of organized municipal government. It can be successfully assailed only by the attorney-general. Until he intervenes to controvert its authority, and until he institutes proceedings by which it is overturned and suppressed, the public functions with which it is charged can be lawfully exercised by its officials as de facto officers." In Lang v. Bayonne, supra, this court, in discussing the same matter (opinion at p. 462) used language to the like effect, viz.: "Such corporations are declared to be de facto corporations, and courts refuse to permit the legality of their existence to be called into question, except by the state itself, through its attorney-general; and hold that, so long as the state does not see fit to interfere and terminate the existence thereof by direct proceedings brought by the attorney-general, a municipal corporation which has been created by an unconstitutional statute may exercise upon the citizens, through its officers, the powers conferred upon it by the statute as fully and completely as if it was created by a law valid in every particular."

Concluding, as we do, that the appellants have no status to challenge the legality of the present government of Bayonne, the validity of the act of 1914 (the supplement to the Walsh act) is not properly before us for consideration.

For the reasons we have stated the judgment of the Supreme Court dismissing the writ will be affirmed.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, VREDENBURGH, WHITE, TERHUNE, WILLIAMS, TAYLOR, JJ. 14.

For reversal-None.

Willis v. Irvington Varnish, &c., Co.

88 N. J. L.

GRINNELL WILLIS ET AL., RESPONDENTS, v. IRVINGTON VARNISH AND INSULATOR COMPANY, APPELLANT.

Argued June 25, 1915-Decided December 1, 1915.

When a suit involving matters of account is sent to a referee by consent of the parties, and the order directing it is a general one and contains no statement of the effect that the referee's report is to have, such report will be treated as a verdict by a jury, and neither the rulings of the referee on matters which arose during the trial before him, nor those of the court upon the application to set aside the referee's report, are subject to be reviewed by an appellate court.

On appeal from the Essex Circuit Court.

For the appellant, Burnett & Cornish.

For the respondents, McCarter & English.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The present action was brought to recover the purchase price of certain lots of cotton cloth sold to the defendant on an express contract, and also the loss sustained by the plaintiffs upon the resale of other lots of such cloth delivered to the defendant under the contract, but which it refused to accept. When the case came on to be tried, and the testimony of the first witness who was examined had made it apparent that the case involved a long and complicated account between the parties, the trial court declared that it was one which should be sent to a referee, and the following order, consented to by both parties, was thereupon made, and such consent endorsed at the foot thereof:

"It appearing to the court that matters of account are involved in this cause, it is ordered that the same be referred to Hugh B. Reed, Esq., to take and state the account between the parties and report the same to the court; and it is further ordered that the said referee accept and consider the testi

88 N. J. L.

Willis v. Irvington Varnish, &c., Co.

mony already given in this case before the court in making up his said report; and it is further ordered that, both of said parties to said action hereby consenting, any exception or exceptions of either parties to the report of the said referee when submitted be argued before the court in lieu of being tried by the court and jury, the right of trial by jury of each of the parties hereto being expressly waived."

The case was subsequently tried out before the referee (no evidence being submitted by the defendant), and that officer made his report, finding in favor of the plaintiffs. The defendant, upon the coming in of the report, objected to its confirmation because of the alleged errors of the referee in his rulings on evidence, and his misapplication of legal rules in determining the plaintiffs' damages; and also because, as it contended, the evidence submitted by the plaintiffs afforded no support for a finding in their favor. The court, after hearing argument on the objections, overruled them, confirmed the report, and directed judgment to be entered thereon. From the judgment so entered the defendant appealed, assigning as the grounds thereof the same reasons upon which it rested its motion to set aside the referee's report. The respondents (the plaintiffs below) now move to dismiss that appeal as improvidently taken.

By rule 99 of the Supreme Court it is provided that all rules of reference entered by consent of parties in that court, or in the Circuit, may state whether the award of the referee is to have the effect of a finding of arbitrators, or merely the force of a verdict, and that in the absence of such statement the award shall be treated as a verdict. This rule was adopted at the June Term, 1873, and merely crystallized the doctrine earlier laid down by the Supreme Court in the case of Fitch v. Archibald, 29 N. J. L. 160, and followed by it in Excelsior Carpet Lining Co. ads. Potts, 36 Id. 301. After its promulgation Chief Justice Beasley, speaking for that court in Runyon v. Hodges, 46 Id. 359, held that by force of it where the order of reference was a general one, made by consent of the parties, and containing no statement of the effect to be given to the report of the referee, such report stood before the Cir

Willis v. Irvington Varnish, &c., Co.

88 N. J. L.

cuit Court possessed of all the characteristics of a verdict according to the common law; and that, consequently, the only remedy against errors of, or misconduct in, the referee "is by motion to set aside, which is a proceeding that cannot be supervised on writ of error;" the writ of error was, therefore, dismissed.

Later a judgment of the Somerset Circuit Court, entered under similar conditions, was brought before this court on writ of error in the case of Children's Home Association v. Hall, 47 N. J. L. 152, and Mr. Justice Van Syckel, delivering the opinion of the court, declared that by force of this cited rule of the Supreme Court, the only remedy of the party aggrieved by the action of the referee was an application to the Circuit Court to set aside the report, and grant a new trial; that, on the refusal of the court to grant such application, the plaintiff in error was in the precise position he would have occupied if the verdict of a jury had been rendered against him, and the court had refused to grant a new trial; and that a writ of error would not lie to review a judgment entered upon the referee's report after the motion to set it aside had been denied.

Since the pronouncement by this court in the case last cited, it is entirely settled that where the reference is a general one, made by consent of the parties, and the order directing it contains no statement of the effect that the referee's report is to have, neither the rulings of the referee on matters which arise during the trial before him, nor those of the court upon the application to set aside the referee's report, are subject to be reviewed by writ of error. Hoboken v. Laverty, 60 N. J. L. 86.

By a reading of the rule of reference in the present case, it appears that it contains no statement whether the referee's report was to have the effect of a finding of arbitrators, or merely the force of a verdict. It was, therefore, required to be treated by the Circuit Court as a verdict, and the present appeal must be dismissed.

THOMAS W. BARLOW, RECEIVER, ETC., RESPONDENT, v. JOSEPH MARRONE, APPELLANT.

Submitted July 6, 1915-Decided November 15, 1915.

1. In a suit upon a judgment of a superior court of a sister state, the presumption, upon the offer of an exemplified copy thereof, is that the recitals therein that are essential to jurisdiction over the defendant are true, which casts upon the defendant the duty of going forward with testimony that shall rebut such presumption. 2. In an action upon a debt of record, a general denial of indebtedness that is the mere equivalent of a plea of nil debet goes for nothing.

3. In an action on a record, identity of name is prima facie identity of person.

On appeal from the Essex Circuit Court.

This was an action upon a judgment recovered in the Supreme Court of the State of New York against Joseph Marrone.

At the trial in the Essex Circuit the plaintiff offered in evidence an exemplified copy of the judgment roll of the Supreme Court of New York and oral evidence as to the sum due thereon, and rested his case. The defendant moved for a nonsuit upon the ground-first, that there was no proof that the said judgment would be evidence of the facts stated therein in the State of New York; second, that there was no proof that the defendant therein was the same Joseph Marrone; and third, that there was no proof that the New York Court acquired jurisdiction over the defendant by service of summons or otherwise. The defendant's motion to nonsuit being denied, he rested without offering any testimony. A verdict was then directed for the plaintiff.

For the appellant, Melosh & Morten.

For the respondent, Teeple & Unger.