The opinion of the court was delivered, at the circuit session in September, by
Bennett, J.We think the power of the auditor to open the cause for further testimony is not to be questioned, especially in a case like this, where it was done before he had made up and published his report. This power should be exercised in the use of a sound discretion, which though the county court might revise the exercise of; yet it would not be a matter upon which error could be predicated.
As to the two items of money charged, they cannot be litigated in this form of action. This money was not paid in the ordinary course of business; but it went to pay money lost through the fault of the plaintiff and for which the defendants were liable. Though the defendants charged these two sums of money to the plaintiff on his book ; and this fact came to the plaintiff’s knowledge, and he did not repudiate the charge; yet this cannot be conclusive upon Mm, and does not furnish evidence of an agreement to have these charges settled in tMs form of action. The case shows that the plaintiff never admitted his liability, and the auditor finds that if the plaintiff is liable, it is upon the ground of his negligence.
The judgment of the county court is affirmed.