“ The argument in support of the first assignment of error is that as no allusion is made to the Oregon Code in the order of reference, and no written consent was filed, as required by that Code, the order was, in its legal effect, only a reference at common law, and, such being the case, it was error, after rejecting the report, to make the new findings. It is undoubtedly true that, under a common-law reference, the court has no power to modify or to vary the report of a referee as to matters of fact. ”

“ If the report shall be set aside, either in whole or in part, the court may make another order of reference, as to al or so much of the report as may be set aside, to the original referees, or others, or it may find the facts and determine the law itself, and give judgment accordingly. ”

“ The case therefore comes here upon the ruling at the trial by the circuit court without a jury, when there had been no waiver of a jury, as the statute requires, by stipulation in writing, signed by the parties or their attorneys, and filed with the clerk. Rulings of a circuit court made under such circumstances are not reviewable here. ”