An intimation from the judge, that the defendant need not produce further testimony, is no ground for a new trial, although the decision is against him. (7 Cow. 29.)
I concur in the impropriety of a report against the wife. The notice of lien is against the wife, as owner, upon a contract made with John M. Catlin. If he made the contract, then his interest in the land is all that is liable. If the contract was made with Mrs. Catlin, by her agent, John M. Catlin, it should have been so stated in the notice creating the lien. Whether a married woman could make such a contract, would still remain to be decided. The difficulty, however, on this point is, that the objection is not taken in the answer, or on the trial.
I concur, also, in the opinion that the evidence of the plaintiff’s books was not conclusive upon the defendants ; but that the admission by the referee, that the proof of value of the work was sufficient, ought to have called from the plaintiff other testimony to rebut the presumption that the labor or materials were overcharged; and in the absence of any proof as *737to the mode of doing the work, that the report adopting the plaintiff’s books as conclusive, was against the weight of evidence.
The evidence of the correctness of the books is, at best, very ') doubtful. The correctness of the books is to be proved by j dealers, not by persons in the employ of the party who keep them accounts, to charge to his debtors. .An overcharge in ' their work is not likely to be objectionable. The rule which, r at best, is a bad one, and ought not to be extended, requires $ that dealers should prove that they dealt with the party, antkE* found his accounts, on settlement, correct.