The defendant appealed. The plaintiff's demand, on behalf of the estate of his intestate for money received upon a draft deposited with the defendant for collection, being met with several counter-claims preferred, an order was entered at Spring Term, 1878, by consent of parties, referring the action to George H. Gregory, "with full power under the law as referee to hear and determine the case upon the law and facts, and report to the next term." The referee accordingly proceeded to take and pass upon the evidence adduced, and made his report wherein he finds upon a statement of the account a balance of $176.16 due from the intestate to the defendant. The only exception taken by the defendant and presented in his appeal is, to the sum of $176.16 charged against the defendant and represented in the intestate's note of $100 to the defendant executed June 27th, 1868, for the assigned reason that the "charge and finding of fact on which it is based is against the evidence." In the argument before the judge in the superior court, the terms of the objection were expanded, and it was insisted that there was no evidence, or if any, it was insufficient to justify the referee in making the charge.
The force and effect of proofs offered to establish a fact rest exclusively with the court below, and the determination then (372) made is not open to re-examination here. If the finding is without evidence, it is an error in law which can be revised and corrected. But in our opinion there is no just ground of complaint *Page 295 against the ruling of his Honor in sustaining the conclusions of the referee in this respect, as a brief reference to the testimony heard by him will show.
Frank Erwin, a witness introduced by the defendant, testified that while he knew nothing of the $382 note executed by the two Moffits and the intestate to the defendant (exhibit 1) he heard the intestate at Moffitt's house urge Moffitt to make some arrangement about a debt they owed the defendant; that the next day the parties were at Greensboro in the defendant's store, and in their conversation the intestate pressed Moffitt to relieve him of the debt; and that the intestate afterwards got from the shop of one Causey a carriage known as the Moffitt carriage. This occurred, the witness states, in June, 1867 or 1868, and he subsequently fixes the latter year as the date from his recollection that, in May, Moffitt came to his camp, and the intestate complained of Moffitt's neglect to pay the debt they were bound on to McAdoo, the defendant. The note to which the exception relates was executed eight days after the other, and recites upon its face that it "is for a carriage from W. D. Moffitt." This testimony indicates (we do not undertake to decide upon its sufficiency) that the value of the carriage, and for which the intestate's note was given, was appropriated by Moffitt in reducing his said indebtedness and exonerating the intestate from his liability pro tanto, and as such, accepted by the defendant and sold to the intestate. The fact is thus found by the referee and sustained by his Honor; and, there being evidence, we are precluded from inquiring whether it ought or ought not to have conducted the referee to the conclusions arrived at.
There is no error, and the judgment must be affirmed.
No error. Affirmed.
In the same case on plaintiff's appeal: (373)