
    Andrew Phelps, Plaintiff in Error, versus Titus Goodman.
    It is not erroneous for the Court of Common Pleas to enter judgment upon the report of referees, for a less sum than that awarded by them; the party in whose favor the award is made releasing the amount of the difference between the two sums.
    This was a writ of error, brought to reverse a judgment of the Circuit Court of Common Pleas for this county, rendered upon the report of referees, appointed by the parties by a rule entered into before a justice of the peace, pursuant to the statute of 1786, c. 21.
    It appeared, from the record brought up, that the report had been once made to the court, and recommitted to the same referees ; and being again made at a subsequent term, was accepted by the court. And the court further ordered that the sum of 66 dollars 20 cents should be deducted from the amount found by the referees to be due from Phelps to Goodman, which sum Goodman released upon the record, and judgment was entered for the remainder of the sum awarded by the referees, with costs.
    The errors assigned related to the said interference by the court, in reducing the sum reported in favor of the defendant in error, and suggested the want of jurisdiction in the court to do any thing more than recommit the report. And Gold argued that the judgment, not having pursued the report, which was its only foundation,' was erroneous, and could not be supported.
   By the Court.

The principal error assigned by the plaintiff in error is, that the judgment does not comport with the report of the referees, being rendered for a less sum than was awarded by them.

By the record it appears that the report was accepted in the whole, and that judgment was rendered for a less sum than that which was awarded; the defendant in error, in whose favor the sum was reported, having released the difference upon the record.

* There is no error in this, any more than there would be in a judgment at common law for a less sum than was returned in the verdict, the plaintiff having remitted the difference.

It would seem, by the language used by the counsel in the assignment of errors, that they objected to the report because of this among other mistakes committed by the referees ; and that the court undertook to determine the amount of the mistakes, and finally ascertained what was due. If this appeared, it would be fatal; because the referees are to judge, and not the court, of the controversy between the parties. But this does not appear of record, but only in the statement of counsel. Nothing more appears to us than that the court gave judgment for a less sum than the referees awarded ; and this they might well do, if the prevailing party chose to relinquish the difference.

If the court proceeded in the manner suggested by the plaintiff in error, in his assignment, his objections should have been specified and introduced into the record. As the matter now stands, there is no cause for reversing the judgment.

Judgment affirmed.  