The referee in his report submits no question of law to the court. He decides the ease both as to law and fact, and awards costs as he thought fit, and as he had the right to do. The report had been once recommitted on the defendant’s motion in order to ascertain whether the award as to costs had been designedly made, or was the result of some clerical error; but the referee distinctly and positively re-afiirms it; and the mere fact. *445that he states upon a loose sheet (returned with the report and the other papers in the case, but not made part of the report) some propositions relating to the law of the case will not avail to impose upon the court the duty of revising his decision.
The presiding judge properly excluded this memorandum. The award is peremptory and there is nothing to show that the referee designed to have its acceptance depend upon the concurrence of the court in the view which he took of the law.
It is by no means apparent that the defendant has any equitable cause of complaint. It would rather seem that his disclaimer of any portion of the demanded premises came so late that the referee was of the opinion that it ought not to affect the plaintiff’s right to costs. . Exceptions overruled.
Appleton, C. J., Dickerson, Danforth and Yirgin, JJ., concurred.