Counsel suggests, in argument, that the plaintiff tried her case before the referee upon a new theory, entirely different from that brought forward upon a former hearing. I cannot see that she was bound to try her case on the same evidence or the same theory on which she had tried it before. If she had tried it on an inconsistent theory, and on evidence contradictory to what she had given or adduced before, no doubt the counsel might have called the referee's attention to it, and, in some form, might have had the benefit of it.
It is not claimed that this is one of those cases in which the parties have, by law, a right to a trial by jury; and the terms of the statute leave no doubt that the reference in this case was lawful.
I think there should be judgment on the report. *Page 514