1. Where an equitable petition involved, among other things, an accounting between partners which had been prayed for by the plaintiff, he being one of the firm, and at a hearing before an auditor this prayer was abandoned and in consequence he did not take the account, there was no error in refusing to recommit the *309case to the auditor for the purpose of requiring .him to do so, there being in the answer no prayer for such accounting.
Submitted January 17, Decided January 31, 1900. Exceptions to auditor’s report. Before Judge Lumpkin. Eulton superior court. March term, 1899. Burton Smith, for plaintiffs in error. Rosser & Carter and Shepard Bryan, contra.2. Where upon the hearing before the trial judge of exceptions to the auditor’s report the above facts appeared, and the defendant offered to amend his answer by praying for an accounting between the partners, and 'the trial judge put him upon terms that he should pay part of the costs before the amendment 'would be allowed, and he refused to comply, there was no error in rejecting the amendment. Civil Code, § 5101.
Judgment affirmed.
All the Justices concurring