*205 By the Court,
Cowen, J.There was, I think, -.evidence sufficient to warrant the referees in finding an account stated and settled between the parties, and a balance struck of $50, as early as March, 1836. The conversation with the witness is not resolvable into a mere offer to compromise, inadmissible as such within the cases on that subject. That this is so, I refer to my examination of a similar question in Mead v. De Golyer, 16 Wendell, 632, 642, 3, &c. and the cases there cited. The bill of particulars contained a charge for this balance, though there was no count upon it in the declaration. No objection, however, was made for variance in this respect, either from the declaration or bill. That sum was therefore properly allowed with interest, unless errors have intervened in some other respects.
The receipt for oats, being dated anterior to the settlement, to be inferred from Mas ten’s evidence, and the referees holding at that stage of the cause, as they well might, that a settlement was fully proved, they had a right to pronounce the receipt irrelevant, as having, prima facie, been merged in the settlement. There was no evidence to show that the receipt had been omitted in the settlement. Standing thus alone and isolated, it was irrelevant. If counsel be desirous to introduce such a fact they should propose some additional fact or facts showing the relevancy of that which is offered. The principle is, that a proposal to introduce an isolated circumstance must contain in itself or by reference to something else, either already in evidence or which is offered as yet to come, enough to evince the manner in which it is to be legitimately operative, or it may be rejected. The important branch of nisi prius practice, resting on this principle, is sustained by many authorities; but I think it will be found best explained and exemplified by the late case of Weidler v. The Farmer's Bank of Lancaster, 11 Serg. & Rawle, 134, 139, 140. See also, in connection with this case, 4 Stark, Ev. 381, and Winlock v. Hardy, 4 Litt. 272, 3; Harris v. Paynes, 5 id. 105, 7, 8; Wilson's adm'rs v. Bowen, 5 Monroe, 33; Clark v. Beach, 6 Conn. R. 142; Rowt's adm’r. v. Kile's adm'r., 1 Leigh, 216, *206223, 4; The People v. Genung, 11 Wendell, 18, 21, per Sutherland, J.; Rex v. Hursey, 6 Carr. & Payne, 81. These cases contain some very apt illustrations; and the practice was als° very well examined in a still later case, that of Davis v. Calvert, 5 Gill & Johns. 269, 304, and also in Harwood v. Ramsay, 15 Serg. & Rawle, 31, 35. The result seems to be that the court may reject on the ground of the apparent irrelevancy, or may let in the proof in the first instance, and repudiate it if, after all is heard, it shall come short of any tendency to prove the issue. But the better way is to reject it in the first instance, if it come plainly short, as I think is very satisfactorily shown by Gibson, J., in Weidler v. Farmer's Bank, before cited, p. 138 to 140.
The other receipt was one of payment to apply on the bill of costs in Lain v. Wells. The intendment was that this also had been included in the settlement. The defendant told Hasten he owed so much over and above all payments. This receipt was irrelevant, therefore, like the other, for want of an offer to prove that it had been omitted.
The referees, it seems, ^finally acted under a belief that a balance of $50 had been in fact struck ; and therefore very properly allowed that sum with interest.
For aught we can see, the two first of the three objections finally made in summing up were adopted by the referees, viz. that the plaintiff could recover no more than taxable costs, and no agreement to pay more would be valid. There was nothing in this incompatible with the fact that there was a balance of $50 due on general setlement. What that settlement comprehended does not appear. It may or may not have been for fees properly taxable, and yet for fees due over and above what Lain had paid to the plaintiff. Beside, the balance of $50 might have arisen out of a distinct dealing between these parties. The defendant did not tell Hasten on what particular account the balance had arisen ; at the most, he merely threw out an intimation.
As to the offer of proof that no charge would be made for services or disbursements in the court of errors, the answer already given to the other offers would also seem to apply. I repeat, the admission was of a balance of $50 in*207dependent of any particular branch of costs, nor indeed do I see that it was necessarily to be inferred that it had any connection with costs.
The motion to set aside the report must be denied.