The opinion of the court was delivered by
Hebabd, J.Two classes of objections to the auditor’s report have been urged.
The first is to the allowance, by the auditor, of various items, for articles delivered to third person. So far as the questions depend upon the existence of facts, and the auditor has found the facts, his finding must be conclusive. The question here is, had the plaintiff any authority from the defendant to deliver these articles to those persons upon the defendant’s credit? If there was any testimony, which tended to prove such authority, and the auditor so finds, this court is not to inquire as to the quantity of evidence, that ought to satisfy him. But if the auditor reports the evidence, upon which he based his finding, and that evidence has no tendency to prove the fact, his finding then is erroneous, and may be corrected. In this case there is evidence, tending to prove the fact.
*618The auditor has found the fact that the plaintiff was authorized by the defendant to deliver' those articles. We regard the phraseology of the report as meaning that the auditor found the fact as proved. I think the term presumption is not the most appropriate expression; but, understanding the meaning as before stated, it is of little importance what words are used to express the meaning. A presumption is usually more matter of law than of fact.
The other objection, which the defendant makes, is, that the auditor refused to go into an examination of the accounts previous to Feb. 15,1822. The parties were competent to settle and adjust their accounts at any time; and whether they did so settle is purely a question of fact; and if a settlement has been made by the parties, it operates as effectually to quiet the accounts as a judgment, and the principle of law, that allows' of the correction of mistakes, does in no sense stand in the way of this view of the case. Whether the account has been settled by the parties, or by a judgment, it is not competent to go into the examination of the account, upon the mere supposition that a mistake exists; the error is first to be discovered, and then it may be corrected.
The case of Whitney v. Corwin is to this point. It was urged by the defendant in that case, that, if the account, notwithstanding the settlement, was still open to correct the error made in settlement, the whole account was open and unsettled, and that consequently the justice would lose his jurisdiction. But the court held that the settlement was not to be disturbed, any farther than to correct'the mistake, and that the whole account was not to be re-examined.
In this case the auditor has found the fact of the settlement by the parties, and he decided correctly, in not disturbing that settlement, after having found its existence.
Judgment affirmed.