The opinion of the court was delivered by
Williams, Ch. J.There is but one exception to the report of the auditor, and that is, that he has not appended to his report the account of the defendant. To sustain this exception, it should appear, affirmatively, that the defendant presented an account, which was adjudicated by the auditor, and not returned by him. As the auditor has returned the account of the plaintiff, and has returned none of the defendant, the obvious inference would be that no such account was presented. The exception, therefore, could not prevail, if no affidavits had been produced. It seems, however, that the county court, out of abundant caution, admitted certain affidavits, taken ex parte, to show that, in fact, no such account was presented. In the administration of justice, such affidavits are frequently admitted, to bring facts to the notice of the court, as in motions for a continuance, and for a new trial. The other party usually has.the right to produce counter affidavits, and no injury can arise, as the court will take care that no unfair advantage is had. We can see no objection to the admission of such affidavits, if it becomes necessary in a case like the present. If, from affidavits, it had appeared that the auditor had omitted to do what he was required to do, the report might have been recommitted for amendment. But, when it appeared that the auditor accompanied his report with the only account presented before him, on the trial, nothing further could have been required *144of him. The affidavits were unnecessary, and whether it was a case proper to receive them, or not, is of no importance.
The judgment of the county court is affirmed.