
    
      WILTZ vs. DUFAU & AL.
    
    
      East'n District.
    
      May, 1821.
    When the parol evidence is not taken down in open court, it cannot be used on appeal without a statement of facts.
    Appeal from the court of the first district.
   Martin, J.

There being long and intricate accounts to examine in this suit, they were submitted to referees, and on their report, objections were made by the defendants’counsel, on several grounds, particularly, because an allowance was made to one of the parties for a sum, as paid for the account of the others, whilst he had paid it in discharge of a private debt of his.

This objection was over-ruled, and to redress the injury, resulting from the refusal of the judge to correct the alleged error of the referees, is the object of this appeal.

There is not any statement of facts; but by an agreement of the parties, the award of the referees, and all accounts made by them, in support of the said award, are to be read in this court.

The counsel for the appellees has imagined, that this agreement authorises him to read here, depositions taken before a magistrate, and read in the district court.

Livingston for plaintiff, Moreau for defendants.

I think that when the parol evidence is not reduced to writing in open court, the party has no right to bring it before us, otherwise than by a statement of facts, agreed on between the parties; or on failure of such, by the judge.

I therefore conclude, that the appeal ought to be dismissed with costs.

Mathews, J.

I concur in this opinion for the reasons therein expressed, which shew it to be entirely conformable to law, and the uniform practice of this court.

It is therefore ordered, that the appeal be dismissed with costs. 
      
       Porter, J. was absent till the beginning of December, with the leave of the legislature.
     