The principal error assigned by the plaintiff in error is, that the judgment does not comport with the report of the referees, being rendered for a less sum than was awarded by them.
By the record it appears that the report was accepted in the whole, and that judgment was rendered for a less sum than that which was awarded; the defendant in error, in whose favor the sum was reported, having released the difference upon the record.
* There is no error in this, any more than there would be in a judgment at common law for a less sum than was returned in the verdict, the plaintiff having remitted the difference.
It would seem, by the language used by the counsel in the *219assignment of errors, that they objected to the report because of this among other mistakes committed by the referees ; and that the court undertook to determine the amount of the mistakes, and finally ascertained what was due. If this appeared, it would be fatal; because the referees are to judge, and not the court, of the controversy between the parties. But this does not appear of record, but only in the statement of counsel. Nothing more appears to us than that the court gave judgment for a less sum than the referees awarded ; and this they might well do, if the prevailing party chose to relinquish the difference.
If the court proceeded in the manner suggested by the plaintiff in error, in his assignment, his objections should have been specified and introduced into the record. As the matter now stands, there is no cause for reversing the judgment.
Judgment affirmed.