The opinion of the Court was delivered by
Williams, J.The question now before us is, whether the County Court erred in accepting the report of the ref*506erees. The first report made by the referee appears to be a general one. There are two additional reports made by the same referee, [f these were made by the permission or direction of the County Court, they are to be received as part of the original report. If they have been procured from the referee after the first report was returned into and filed in the County Court, without the order or permission of the Court, they ought to be wholly disregarded. We have not directed an examination of the records of the County Court to ascertain this fact, as we cannot discover any reason from the whole together, why the report should not have been accepted.
The Court ought not without very substantial reasons to set aside the report of a referee. Referees are usually selected by the parties, with a view to settle the disputes between them, and are rarely selected for the purpose of making an accurate legal determination of the matter in dispute. The rules upon which Courts have proceeded in considering the reports of referees have been frequently declared from the bench ; and it must be understood that these reports are always to be reexamined upon those rules alone, and that it will never be sufficient to present the whole facts to the Court and ask them upon a critical examination, to decide whether a different conclusion might not have been drawn from the testimony.
We cannot discover in this case, that the referee has attempted to follow the law and has mistaken it, or that he has on the principle on which he professed to act, come to a wrong conclusion.
The referee was unquestionably the judge of the weight of evidence. In speaking- of the result to which he arrived, he expresses himself with a degree of modesty and difi-dence, which is certainly much to his credit. He says the evidence was far from being satisfactory, is sensible that injustice may have been done and that the evidence was not such as to put the case beyond all doubt, or to show that either party were certainly entitled to recover ; but still from the evidence as submitted and the law as he understood it, the report must be right.
From the second statement made by the auditors it appears, that the sum allowed the plaintiff was one half of a *507certain receipt executed by the defendant; and the referee does not recollect whether the plaintiff offered any evidence to show that it has not been applied as directed in the receipt, nor did the defendant show by any evidence, that it had been applied. The referee may have concluded that as the defendant could very easily show the application of the money, according to the terms of the receipt, that the burden of proof was on the defendant, and if there was any evidence before him that the defendant; as attorney of M. & W. Harris, had collected the whole of that execution, the conclusion to which he arrived was the legitimate conclusion from the evidence. But be this as it may, the referee was the judge of the evidence, and the case is not so presented by the report, that we can learn that there was any error of law, or fact, in the decision upon the evidence.
The question which has been raised as to the jurisdiction of the Court is very easily answered. The ad dam-num determined the jurisdiction. The sum then demanded was] all the plaintiff could recover and all that he claimed. In his evidence, he exhibited a variety of receipts, and amounting in the whole to the sum of one hundred and twenty-nine dollars and thirty-five cents. From these he intended to establish his claim to the seven demands in the declaration. He did not claim the whole amount of those receipts as due from the defendant, nor if he did, would it have prevented the Court from rendering judgement for any amount within the ad damnum.
Either party could have had the pleadings before the referee if he chose; and need not have proceeded without. It was not made to the referee an objection to his proceeding without them ; nor can it here be assigned for error in his report that he did proceed to trial without them.— Neither can it be assigned for error that the defendant had not reasonable notice of the time when the referee was to hear the cause. This should have been presented to the County Court as a reason why further time should be given for the hearing, and the Court might at their discretion have ordered that the rule be enlarged for that purpose; or if the plaintiff had refused to consent to such enlargment, they would have set aside the report, but this was a ques--*508tion be submitted to the sound discretion of the County Court.
Wells, for plaintiff.. Fletcher, for defendant.The judgement of the County Court is therefore affirmed.