— This cause was tried below by a referee, who reported a judgment in favor of plaintiff. The evidence is amply sufficient to sustain the report, and this court will not, in a case where there is conflicting evidence, disturb the finding of a referee on the ground that it is against the weight of evidence.
The referee who tried the cause, from observing the appearance of the witnesses and their manner while testifying, is more likely to form a just estimate of their intelligence and credibility than a court from simply reading his notes of their testimony. There is no pretense that the case was not fairly tried or that improper evidence was admitted.
The judgment is affirmed, with costs, and ten per cent damages for a frivolous appeal.
I concur: Murray, C. J.