There is no substantial difference between this case and Kline v. Guthart. By the terms of the submission, the auditor was indeed required to report the facts connected with the disputed items, but there is no agreement that his statement Shall be taken as a special verdict: under such an agreement, there might, perhaps, be no objection to proceed on a case stated by an auditor, as if it were stated by the parties themselves; but if they mean to make the report a ground of error, they should say so, else they must be taken to have agreed to abide by the decision of the tribunal of their choice. And the whole case ought to be stated, instead of the facts connected with particular parts of it, in order to enable the court to give'final judgment for the party who ought to have had judgment in the court below, else it would have to be sent back, in order to be re-stated, or otherwise determined by a jury. But a statement of the facts connected with particular parts of the case, would be so defective, that no agreement could cure it, or enable the court to proceed upon it.
Judgment affirmed.