(After stating the foregoing facts.) This case was submitted to two “ auditors.” The defendant in error insists that while in terms the order of the court refers the case to certain named parties as auditors, they were in fact not auditors but arbitrators, although the order taken terms them auditors. The plaintiff in error insists that they,were auditors, and that upon them rested the duty of auditors, and that they were to discharge the functions of auditors. But we will not undertake to decide the question thus presented, as it is not necessary to the determination of the case. Treating the proceeding as one had before an auditor, the judgment of the court below must be affirmed; for, considering the evidence submitted at the hearing of the motion to recommit, it was not of such a conclusive character as to require the judge to grant the order. Even if the failure to run certain lines which the plaintiff in error insists should have been run, and to-hear further evidence which the plaintiff in error insists should have been heard, was properly made a ground to recommit instead of a ground of exception to the report, the judge who heard the evidence touching the opportunities of the complaining party to submit the further evidence and to complete his ease was not required to find that the movant could not, in the exercise of the diligence required under the circumstances, have completed the evidence and had the same submitted to the auditors.
As to the branch of the motion based upon the fact that the auditors had not been sworn as required by law, the movant testified positively that they were not sworn; one of the officers testified that he did not remember whether they were sworn or not, but the other officer said that “ his impression was ” that they were sworn. The expression, “his impression was,” might properly have been construed by the court as a statement that “his recollection was.” And, moreover, one witness testified that the attorneys for the parties at the hearing before the auditors “agreed to waive the oath, and the case went on trial.” Apparently there was no error in overruling the motion so far as it rested upon the ground last referred to.
All of the facts considered, the judgment of the court below should be
Affirmed.
All the Justices concur.