
    E. G. Reed, Trustee of John McMurray, vs. Yancey Wiley, Administrator of the Goods, &c., of Samuel Mitchell, deceased.
    R., alleging himself to he a creditor of M.’s estate, of which. W. was administrator, laid his claims before the commissioners of insolvency of that estate, who rejected them ; R. had the claims referred to referees, under the statute, who also reported against them, and the probate court confirmed their report. At a subsequent term, it was agreed, by the attorneys of both parties, that the claims should be again referred for another report; depositions were taken, on both sides, and neither party objected to the order for the second reference, during its pendency in the court below; held, that the acquiescence of the parties in this second reference, and their action under it, precluded their objecting to it in this court.
    The proceedings in the probate court, in the settlement by referees of claims against an insolvent estate, are analogous to a reference to a master in chancery ; and where the report of such referees is confirmed, it is final as to the action of the probate court, but is subject to re-examination in this court upon the law and facts.
    Upon the conflict of testimony before referees, sitting upon a claim against an insolvent estate, where payment of the claim was alleged, and there were various and independent dealings between the claimant and the deceased, which rendered it difficult of decision to ascertain what sum was due ; held, to be a case peculiarly proper for an issue before a jury.
    R., holding the notes of M. for large sums, due in 1836, upon which large payments were made by M. in 1838, 1839, and 1840, laid the claims before the commissioners of insolvency upon M.’s estate, in the year 1841, in which year M. died; the claims were rejected. Upon which referees were appointed, who proceeded to take proof, by which it appeared that M. and R. were once in partnership ; that M., in 1837, settled a debt for R. equal -to M.’s debt due to R. in 1836 ; that M., in 1838, had collected large sums of the partnership debts of M. and R., equal to the debt of R.’s, which M. had paid in 1837; it did not appear that M. had ever paid to R. any of these partnership sums so collected, but had, in 1838, 1839, and 1840, made large payments upon the notes due in 1836, held by R;; upon this proof, the referees rejected R.’s claim, and the probate court confirmed their report; held, by this court, that the clear proof of the once subsisting debt, due by M. to R., and there being no conclusive proof of its payment, rendered it more subservient to the ends of justice that the report of the referees should be re-committed for a second examination.
    
      Where a report is sent back by this court for re-examination upon the facts, by referees, of a claim against an insolvent estate, the referees are at liberty to form their own estimate of the testimony.
    On appeal from the probate court of Lafayette county; before the Hon. P. H. McCutchen, judge.
    On the 12th of October, 1840, letters of administration upon the estate of Samuel Mitchell, deceased, were granted to Yan-cey Wiley, by the probate court of Lafayette county; at the April term, 1841,'the estate was declared insolvent, and three commissioners of insolvency appointed. At the October term, 1844, two of the commissioners reported, and stated in their report, that E. G. Reed, trustee of John or Madison McMurray, who was at that time, and at the time of presentation of his. claims, a citizen of North Carolina, presented before them, at their regular meeting, in April, 1843, two notes, one for $8350, and the other for $1700, properly probated for allowance; which claims they retained for examination, until December, 1843, when they rejected them. At the January term, 1S44, on the application of Reed and McMurray, the rejected claims were referred to referees, to make report to the March term of the court, at which term, the referees reported, rejecting again the claims. At the May term of the court, after having taken the report of the referees under advisement, on the motion of Reed and McMurray to reject their report and award, the court entered an order, approving the award of the referees, and rejected the claims.
    At the June term, 1844, the following order was entered of record: “ The case of McMurray v. Samuel Mitchell's estate, in which E. G. Reed is trustee, having been decided at the May term of this court agaiust the plaintiff, upon the report of the referees, appointed to examine into the claims, it is agreed by the counsel for both sides, that the claims be referred back to the same referees, with instruction to report on the same on the 29th of this instant, at which time a special' term of this court is to be held.” At the special term the cause was continued till the July term, when this order was made : “ It is ordered by the court that this case be continued until the September term of this court next, and that both parties have leave to take depositions generally.”
    In the record immediately following this order, is a commission to take the deposition of James Webb, of North Carolina, with the notices duly executed; the deposition itself then follows. Webb proves that he was agent for the Bank of Cape Fear, in North Carolina, in the year 1837, and before and since that McMurray owed a debt to the branch of the bank in Orange county, díte on the’ 30th of September, 1835, of $8000; on the 8th of March, 1836, Mitchell paid $2200 of that debt, leaving a balance due of $5800 dollars, which Mitchell paid by changing the debt to the name of McMurray & Mitchell, and adding $4700 to it, making the debt of McMurray & Mitchell to the bank, on the 26th of August, 1836, $10,500, which new debt was paid by Mitchell, as follows : $800, on the 8th of May, 1837, and the balance, viz. $10,179 70, was paid by Mitchell, by submitting his own note for that of McMurray & Mitchell, for that sum, on the 27th of June, 1837.
    The note for $8350 of Mitchell, held by Reed, was credited with the following sums : “ Received two hundred and eighty-one dollars, 15th August, 1838, of John M. Norflat, executor of. Nath. Norflat, deceased.” September 18,1838, a like receipt for $233; a similar one for $280, on the 25th of October, 1838; a similar one for $540, on the 18th of June, 1S39; and the following: “29th July, 1839, received one thousand dollars of D. H. McAdams;” “Received, 13th March, 1840, of James Perkins, in New Orleans, eight hundred and forty dollars, in part of the within.” “ Received, 13th May, 1840, three hundred and twenty-one dollars thirty-seven cents of John M. Nor-flat, executor of Nath. Norflat, as per receipt given, indorsed on C. Davis’s receipt.” “ March 14, 1840, received of the within two hundred and seventy-six dollars, ($276.)” “June 24, 1840, received of within five hundred and sixty-six dollars and eighty-three cents, ($566 83.)” “ December 25, 1840, received of within eighteen hundred dollars of Robert Jenkins, it being for sale of Mitchell’s interest in Bennett Smith and wife’s interest in Reuben Smith’s estate, sold to said Jenkins by J. Barrett about 6th July, 1840.”
    The note for §1700 had no credits of any kind indorsed upon it.
    The following receipts were read before the referees: “ Received of Madison McMurray three thousand two hundred and seventy dollars, January 5, 1837. Samuel Mitchell.” “ Received of Madison McMurray ninety-two dollars, June 15, 1837. Samuel Mitchell.”
    A letter from Mitchell, dated “Mississippi, June 9, 1840,” directed to “ Madison McMurray, McMurray’s store, North Carolina,” was read, in which Mitchell says, after reciting his efforts and their failure to collect two debts due to McMurray, in conclusion of his letter, “ after all, there is about three thousand dollars of the old debts to collect yet, which I am in hopes will come in after a while.”
    Another letter, dated* Lafayette, Miss., April 13,1838, to the same person, from Mitchell, was also read, in which Mitchell undertakes to give McMurray a history of their transactions in Mississippi, and enumerates various debts due McMurray & Mitchell, in suit and in progress of collection, and states the prospects in each case of collecting the money; mentions the collection of §155, of a debt due to McMurray individually, and speaks confidently of collecting large sums of the joint debts at the ensuing courts; promising, if delayed in these debts, to send'him “funds by some means or other,” stating that he “ had been for some time endeavoring to procure eastern funds, to send on for your debt in Raleigh; ” and the letter continued, that, in case the banks did not check in May, the writer would have'to buy cotton, and send it to New York, and draw on it through his merchants at New Orleans.
    Another letter from Mitchell to McMurray, dated Lafayette, Miss., July 9, 1838, was read, in which Mitchell expresses his regrets that he had not yet succeeded in getting their mpney exchanged. In this letter he says: “ My collections have been tolerable. I have collected for the concern of McMurray & Mitchell $11,572 72, and my expenses have been §307 up to this time. There were about §5000 more that I could have had in Brandon money, which I thought proper not to receive. The balance of the firm, debts I will receive so soon as the Union Bank goes into operation.”
    This was all the testimony spread out in the record. No bill of exceptions was filed.
    The referees appointed under the consent-order, reported to September, 1844, of the court, rejecting the claims presented by McMurray, on the ground, that, since the execution of the notes held by McMurray, Mitchell had paid, i. e. in June, 1837, over $10,000, of the debt of McMurray, which they considered a good offset against the claims McMurray was attempting to enforce.
    The court received and confirmed this report; whereupon Reed, the trustee of McMurray, appealed.
    Three errors were assigned for reversing the decree.
    1. Because the set-off allowed was not sustained by the testimony.
    
      2. Because the alleged payments were made before the execution of the notes in controversy.
    3. Because the subsequent payments by Mitchell rebutted the presumption of prior payment.
    
      J. F. Cushman, for appellant.
    In this case I will first notice the points raised by the counsel for the appellee. It is contended, that the first order of confirmation by the court below was final; and that it was beyond the power of counsel to set it aside by consent. This position is not sustained by the authorities. There is no case precisely in point; but there are many, showing, by analogy, that the act done was fairly within the general scope of an attorney’s authority. It has been ruled, that an attorney’s agreement to refer a suit to arbitrators binds his client. 1 Dali. R. 164; 7 Cranch R. 449. In Kentucky it has been decided, that it is essential to the progress and conduct of a cause, that the client should be bound by the admissions of fact by his counsel; and that an attorney has authority to confess a judgment for his client. 4 Monroe, 377. Upon an' affidavit to set aside an order of reference made by consent of counsel, by a party who denied the attorney’s authority to refer, Mansfield, C.' J. refused, saying, it would lead to confusion and fraud. 3 Taunt. 486. An attorney may waive a judgment by default, and go to trial upon the merits, against the express orders of his client, (Lord Holt, 1 Salk. R. 86,) and remit part; and if part, the whole of a judgment for damages, ibid. 88. If then, as appears, an attorney may confess a judgment for his client, remit part or the whole of his judgment, and agree to the setting aside of a judgment in his favor, both upon reason and authority, he may consent to the setting aside of a simple order of court. Besides, the counsel may have had good reasons for his conduct; e. g. he may have thought the order erroneous and reversible upon appeal, and that it might bring costs upon his client to insist on it. This objection will not hold.
    The position stated as to awards, and the authorities cited, are not questioned. The report of the referees is not an award in its technical sense. It is not the act of the parties, but the result of a general, statutory provision, that brought it into existence. The referees are quasi officers of court, and their proceedings subject to its control and supervision, like a master or commissioner in chancery, whose acts are passed upon by the chancellor, and his decision also subject to revision in a higher tribunal. The cases cited by appellee’s counsel all go upon this distinction of a voluntary submission by the parties. In 4 Porter, 70, the court say, when “ the parties constitute a tribunal of their own choice, by a selection of persons to settle the matter of difference, they cannot impugn the decision for extraneous causes.” Here was constituted no tribunal by the voluntary act of the parties; but the court, in obedience to the statute, made the reference. The court, and not the appellant, selected the persons. In 8 Cow. Rep. 136, this distinction is shown to be a sound one; there the parties agreed to refer the matter in dispute to two, instead of three, as required by the statute; and the court was asked to set aside the award, but refused, saying, the subject of controversy having been referred to two by the parties, instead of three, as the statute required, it was an award, and the court would not interfere. See, also, 1 Wash. R. 197. ■
    But'if we admit the report to be in the nature of an award, the record shows that it is in a condition to be reversed upon legal principles. If the ground of the award is stated, and it shows that there has been mistake or error, the court will reverse it. I Wash. R. 197. The deposition of Webb is stated as the ground of the report, and made by its terms the basis on which it is to rest; and this very deposition shows the report to be erroneous, as I will hereafter make evident to the court. If the report on its face shows ignorance of the law, or mistake of fact, it may be impeached. 4 Porter R. 70 ; 2 Hen. & Mun. R. 408 - 413. If the grounds of the report are set out, it may be set aside. 1 Hen. & Mun. R. 67. .The deposition is the ground in this case, and shows palpable error by specific dates and conclusions of law therefrom, and even viewed as an award, the case is in our favor.
    But counsel says the last order of the probate court, confirming the report of the referees, is good on its face; 'and there is no .evidence placed on the record in an authentic form to invalidate it. This is truly the last resort in a desperate case. The appeal was regularly granted. The statute H. & H. Code, ch. 39, p. 473, provides, that upon an appeal front the probate court, that all the testimony shall be reduced to writing. This was unnecessary; for in this case, as there was no oral testimony, all the evidence had been previously reduced to writing; and it further provides that a transcript of the whole proceedings, relating immediately to the matter, shall be made out by the register, and certified by him, under seal, and transmitted to the appellate court. All of which has been done, and the case is before the court upon the transcript.
    It would seem the part of wisdom for counsel to attempt to prevent an examination of the facts of the case by these preliminary objections; for every fact on the record is against ■them, and unless they can succeed in that their cause is a hopeless one. The claims' against the estate of Mitchell' (which constitute the5 foundation of this suit) consist of two notes — one for $8350, dated 29th of Nov. 1836, due on the 15th January, 1837; and the other note.for $1700, dated 1st of December, 1836, and due one day after date. • These claims were allowed by the court below; but a counter claim was allowed as a set-ofF of more than ten thousand dollars, which the appellee attempts to- show, by Webb’s deposition, Mitchell paid to the Cape Fear Bank in North Carolina, at Hillsboro1: viz., $2200 on the 8th of March, 1836 ; $800 on the 8th of May, 1837; adding himself $4700 to the balance, and settling the whole by his individual note to the bank for $10,179, on the 27th of June, 1837. Upon the larger note, sought to be recovered from the estate of Mitchell, there are ten credits; the first credit is in August,. 1838, long after the payment sought to be used as a set-off was made to the bank by Mitchell ; and the last credit on the note is dated December 25th, 1840. The notes, which the counsel for the appellee attempts to show were liquidated by the payment in bank, in 1837, remained in the possession of McMurray for near four years before Mitchell’s death and after he made the payment to the bank; and various payments were made on one of them, as will appear upon examination of the record; the first payment commencing after the 27th of June, 1837, the time it is alleged Mitchell paid the $10,179 in the Cape Fear Bank for the use of McMurray, and continuing at intervals until Mitchell’s death in 1840.
    It is true, that an indorsement of the receipt of money on the back of a note, is only -prima facie evidence of a payment, and may be rebutted by evidence; yet the numerous payments made in this case, taken in Connection with the fact that near four years elapsed from the period it is said Mitchell made the payment in bank for the use of McMurray, and the time when Mitchell died, and leaving the notes in the possession of McMur-ray, and making frequent payments on one of them until his death, shows, most conclusively, that the payment alleged to have been made by Mitchell in bank, was not intended as a liquidation of these two notes now held by Reed as trustee, otherwise they would have been taken up by Mitchell before his death, and he would not have continued to make payments on them after he had once paid them. The credits on one of the notes are admitted to have been made by Mitchell or by his direction; and presents strong evidence to the court that these claims have not been satisfied, as the payment of interest is equivalent to an acknowledgment of a debt outstanding. 17 Serg. & Rawle R. 53. And by analogy the principle is laid dovin in a case of the statute of limitations, that any act which the jury may consider as an acknowledgment of an account remaining open, is sufficient to take a case out of the statute. 15 Yes. 190. Upon this statement of. facts, is it possible for the court to allow the set-off? It certainly would be unreasonable and contrary to law.
    '• It appears, by the evidence, (Mitchell’s letters to McMurray) that Mitchell and McMurray were partners in an extensive slave trade in the South-West; and by Mitchell’s receipts it appears, that on the 15th of June, 1837, in the course of the business, he was indebted to McMurray, in another transaction, in the sum of $3362; and, by his letters written to McMurray in July, 1838, he had collected for the firm of Mitchell & Mc-Murray $11,572 72, and he could have received $5000 more in Brandon money. Mitchell’s payment to the bank is subsequent to the date of the receipt for $3362, and the acknowledgment of the $11,572 72, collected for the firm, follows close after. The presumption will naturally arise from the proof, and the conclusion is inevitable, that Mitchell was settling a debt due by him to the firm, as he first pays part, and gives the firm a note for a large balance, with an increase added to it of his own debt; and finally closes the whole by substituting his own note. Thereby, doubtless, settling for a large amount of the cash of the firm, which at that time it appears he held. This presumption is reasonable and legal; and explains the strange anomaly of a man over-paying a debt due from him; and still continuing to repay the same debt regularly for near four years afterwards, up to his-death.
    The referees erred in their report in allowing the set-off to the notes, and the court below then manifestly erred in the presumption, law and fact in confirming the report. I feel confident, then, this court will reverse the decision. The statute H. & H. 410, says the report, when approved by the court, shall be final and conclusive, and does not make it compulsory on the court to approve the acts of the referees as asserted by counsel; and, further, gives an appeal from the order of approval, which presumes the right of reversal by this court of the acts of the court below. The record shows gross and striking error in the whole proceedings of the court below.
    
      R. S. Holt, for appellee.
    It is assigned for error, in this case, that the court below confirmed the report of the referees when the proof was not sufficient to sustain or authorize the report.
    To a decision upon the question thus raised, it is necessary for this court to examine the report, and the evidence as presented by the record. The first report of the referees is general, rejecting the claims of the appellant without an assignment of the reasons which influenced the referees, or a statement of the evidence upon which they acted.. This report was confirmed by the court. And the record does not show that any evidence was laid before the court, prior to the confirmation of the report, for the purpose of establishing either error or misconduct on the part of the referees. The report being unexceptionable on its face, it was, in the absence of any such reason for rejecting it, affirmed or approved, as a matter of course. We insist that counsel had no power to consent, and the probate court no power, even by consent, to set aside this order of confirmation at a subsequent term, and refer the claims a second time. The powers of counsel, it is well known, do not extend so far, nor could such consent confer the power upon the court.
    If this position be correct, the first report of the referees and its confirmation preclude all controversy between the parties, and the record, reference, report and order of confirmation are simple nullities.
    But even supposing that I am wrong in this' no imputation of error can be cast upon the order of the court approving the second report. In the first place, the report upon its face is free from objection. The referees state a fact as proven, and found their report upon that fact. But they do not submit the proofs, with their report, to the court. They refer to the deposition of Webb, but do not lay that deposition before the court; nor does it appear, by the record, that this or any other proof was before the court when the order of confirmation was made. True, we find in the'transcript sent up by the clerk, what purports to be the deposition of Webb, and a great variety of receipts, letters, and other instruments. But none of them are made part of the record in any authentic or recognized way. This court cannot know that any of these instruments were either before the referees or the court below.
    But even though the deposition, had been laid before the court below, it rather sustains than detracts from the propriety of the report. It unquestionably establishes the indebtedness of McMurray to Mitchell, which was allowed as a set-off or counter claim; and if it had been before, in any manner, adjusted, the onus probandi was certainly with appellant. Taking this view of the subject, the record discovers no reason why the report should not have been confirmed.
    I apprehend, however, that the referees are to be regarded as arbitrators. If so, then their award could only have been assailed for some error apparent on its face; 2 Hay. R. 30; or by proof of corruption, partiality, or gross misconduct in the arbitrators. 4 Porter R. 65; 1 Johns. Ch. R. 101; 2 Ibid. 550.
    No calculation or ground of award not incorporated in it, or annexed to it at the time of delivery, could be received as reasons for its rejection. 1 Hen. & Mun. 66.
    Viewed as an award, then, the report of the referees was necessarily confirmed.
    The errors assigned not being visible in the record the judgment below must be affirmed.
    
      1. E. Tdliafeerro, on same side.
    This case was twice submitted to referees in the court below, under our statute, and was each time decided against the claim of plaintiff. The court-confirmed the award at each report, to which plaintiff objected. It is contended, by defendant, that the award of the referees is final and conclusive, and could not be examined into anew. The principle of law governing awards is well settled to be, that an award, when made in conformity with the order of submission, is conclusive, unless the arbitrators, in making their award, were guilty of fraud, corruption or mistake. The object of reference to arbitrators is, that the matter submitted to them may be finally settled. If all the matters so submitted to them can be examined into anew, on the coming in of the report of the commissioners, with their award, nothing by it has been gained. The court will have to make the same examination into, and adjudication on, the claims of the litigants, as if no reference had been made. It would lead to endless litigation, if the award of arbitrators could be set aside in the manner proposed in this case, at the mere suggestion of either party who is displeased at the judgment of the arbitrators. The true rule is to let the party dissatisfied with the award, make his objections; and let them be legal, such as corruption, fraud or mistake. The supreme court of New York, in the case of Sheppard v. Merril, 2 Johns. Oh. R. 276, makes this decision: “In case of an award, this court will not interpose unless there has been fraud, imposition or mistake; if there is no corruption or partiality in the arbitrators, nor any misconduct during the hearing, nor any fraud prac-tised by either party, the award is binding and conclusive, however unreasonable or unjust it may appear. In Watson on Arbitration, (Law Lib. sec. 1,) it is held, that submissions to arbitration are either by the consent of the parties, with the interposition of the court, or by the agreement of the parties without such interposition; and the subject is there fully discussed, making no difference between the two kinds of submission — the rule of law governing awards applies equally to both. By the same authority, p. 39, “ The arbitrators are both judges of the law and the facts of the case. And even if the arbitrators reject a competent witness for incompetency, yet the parties are bound by-their award.” The same authority further remarks, “It'is apprehended that an objection could not be raised against an award, on account of the admission of the evidence of a witness, who, by the rules of law, would be incompetent. Other authorities might be introduced, showing the conclusiveness of awards; but it is too general,a principle.in the books to require the production of others. In this case the referees made their award, and that against the claims of plaintiff. The statute law of this state provides, that the award, when made, shall be approved by the court. This certainly does not impose the duty on the court to examine into the whole matter again, and see whether the referees made such an award as the court would have done upon the law and the facts of the case. If such were the duty of the court, or if such a course were permitted by the law, in almost every case the award would be set aside, and the case examined into anew by the court, as the party against whom the record was made would desire a rehearing before the court.
    The referees in the court below, being judges of the law and the facts, their award was final and conclusive, and the court was bound to approve it, unless plaintiff had shown that the referees had acted fraudulently, or that there was imposition or mistake. McMurray made no such showing, but being dissatisfied because his claim was rejected, opposed the confirming of the award by the court, and brings the case by appeal into this court.
   Mr. Justice Clayton

delivered the opinion of the court.

The appellee, as the administrator of Samuel Mitchell, deceased, reported his estate to be insolvent, at the April term, 1841, of the probate court of Lafayette county, and thereupon, commissioners of insolvency were appointed. McMurray, for whom Reed is the trustee, a citizen of North Carolina, held .Mitchell’s writing obligatory, dated November 29th, 1836, payable on the 15th January following, for $8350; also his promissory note, dated 1st December, 1836, for $1700. These claims were presented to the commissioners of insolvency, who reported against them. Thereupon, at the instance of McMur-ray, referees were appointed, according to the statute, to pass upon his claims. The referees made their report to the court, rejecting the claims; a motion was made to set aside the report; which, however, was overruled, and the report confirmed. This report was made, as it seems, without any evidence other than the claims themselves.. At a subsequent term of the court it was agreed by the attorneys for both parties, that the claims should be again referred for another report. Depositions were then taken, and submitted to the referees, who again rejected the claims, and, upon the confirmation of their report, an appeal was taken to this court.

The power of the counsel to make an agreement to set aside the first report made by the referees, at a term of the court subsequent to that at which it was returned, and to re-commit it to referees, has béen questioned in the argument here.

It does not appear that either of the clients ever objected to this order; and it appears affirmatively that both have acquiesced in it. Under the last order both parties proceeded to take depositions, and to procure the last report; it would seem too late now to make the objection upon an appeal taken from the order confirming the last report. It would appear like giving countenance to fraud, to permit either of them now to recede from the agreement. We need not now undertake to decide, whether such an agreement by counsel would be binding, without any subsequent recognition by the client.

The proceedings in the probate court under the statute, in regard to the settlement of claims against an insolvent estate by referees, seem to bear a strong resemblance to a reference to a master in chancery. The report of the referees is open to exceptions and objections; the court may reject or confirm it, and when confirmed, it is final, so far as the action of that court is concerned. But if an appeal be taken to this court, we do not regard the report of the referees, when ordered to be confirmed by the court, to be conclusive in such sense, as to fetter the action .of this tribunal. It is our province to decide it, as the court below should have done: the law and the facts are both brought up for re-examination.

In this case, no errors of law are complained of; but only that the court and referees formed an erroneous conclusion from the facts.

There have been three reports made, all unfavorable to the claims, and all confirmed by the court below. The evidence, however, was only produced before the referees at their last sitting. After these repeated decisions against them, this court would very reluctantly disturb the judgment of the court below; and only when clearly satisfied that' it is necessary to the'attainment of the ends of justice. This cause certainly is not free from difficulty. The claims both bear date in 1836. In 1837, a witness proves, that the decedent settled a large' debt for the claimant, exceeding the aggregate amount of his claims. But in 1838, 1839, and 1840, we find the decedent making large payments upon the present notes; a circumstance not to be reconciled with the supposition that he had previously paid them. There is a correspondence in the record, which shows there had been large dealings between the parties, but it throws not much light upon this transaction. We forbear from much comment upon the testimony; a few remarks, however, will not be out of place. The debt settled by the decedent was a bank debt of McMurray and Mitchell, who were in partnership in some kind of trading. It was settled by the giving his individual note by Mitchell, in place of the previous partnership note. This would raise a presumption of indebtedness from McMurray to Mitchell for the amount. The debt was settled in June, 1837, and amounted then to near $11000. In a letter from Mississippi, where the partnership transactions appear to have taken place, to McMurray, in North Carolina, written by Mitchell in July, 1838, he states that.he had then collected for the firm of McMurray & Mitchell, $11,572, and that his expenses had been $307; and he speaks of several thousand dollars more as still due. Now, this sum was about sufficient to pay the bank debt, and as there is no evidence it was ever paid, or any part of it to McMurray, it might have been appropriated by Mitchell in that way. And this may seem to explain the fact, that for some years afterwards, and up to a period near his death, Mitchell was making payments upon these notes. The whole letters written from 1838 to 1840, relative to the partnership affairs, recognize an unsettled state of accounts between them; and that the firm was in debt to McMurray, if the* debts due it should be collected. There is no evidence that all were collected. The whole matter rests in some degree of obscurity. In this state of painful uncertainty, McMurray producing clear proof of a debt once subsisting, and there being no proof that clearly shows it was ever paid, it is thought to be more subservient to the ends of justice to direct the report to be re-committed. But on the re-submission, the referees must be at liberty to form their own estimate of the testimony, since we cannot undertake to control them in that respect. ‘ Errors of law may be .corrected by us; the facts must at l^ast be determined either by the referees or by a jury. Indeed, this would seem to be a case peculiarly proper for an issue for a jury. See H. & H. 472.

The order of the probate court is reversed, the cause remanded, and report to be re-committed, unless upon proper application a jury be ordered.  