The opinion of the Court was delivered at the ensuing June term in Lincoln, by
Mellen C.This writ of error is brought to reverse a judgment of the Court of Common Pleas rendered on the report of a referee, to whom the action had been referred. As the account of the defendant against the intestate had been duly filed, it became a part of the action and was thus included in the submission. In such case, each party becomes a claimant against the other. Each assumes the character of plaintiff and each the character of defendant. The decision of the referee proves that the estate of the intestate was indebted to Cole, at the time of the submission, in the sum of seventy-five cents ; and for this reason, the referee reported costs in favour of Cole. The language of the report is not precisely technical and proper as it stands, against “ the said Tristram Eaton, administrator “ on the estate of Humphrey W. Eaton instead of, “ against “ the goods and estate of the said Humphrey W. Eaton, in the “ hands and under the administration of the said Tristram Ea- “ ton,” as it should have been expressed. This informality in the language of the report, is corrected by the Court in their rendition of judgment; and the judgment is as it always should be, in the case of a recovery of damages and costs in-an action against an executor or administrator, and as it always is render*140ed in such cases. The present action exhibits very different features from those in Hardy v. Call, cited in the argument; and the principles of that decision do not apply to such a state of mutual claims embraced in one submission. Though the report bears no date, it is not void on that account; and, in the absence of all evidence to the contrary, we must presume that it was duly made at the term of the Court when it was accepted and the judgment thereon rendered. On examination of the record before us, we do not perceive any error. Accordingly, the judgment is affirmed, with costs for the deféndant.