
    Sarah A. Jarvis, administratrix, &c., vs. William F. Jarvis.
    A referee reported certain evidence tending to show an indebtedness of the defendant to the plaintiff, but did not find, as a fact, that such indebtedness existed. As a conclusion of law, he found that the plaintiff was entitled to recover the amount of the indebtedness which the evidence tended to show. Held that the finding was erroneous.
    It is the province of a referee to find the fact, instead of reporting the evidence ; and judgment cannot be given upon a report of evidence, no matter how strongly it may tend to establish the fact.
    APPEAL by the defendant from a judgment for the plaintiff on the report of a referee.
    
      F. W. Cogswell, for the appellant.
    
      John Van Voorhis, for the respondent.
   By the Court,

Talcott, J.

The only serious -difficulty in sustaining the judgment in this case seems to be the form of the report of the referee.

The referee has fallen into the not unusual mistake of referees, and found and reported the evidence, instead of the facts established by the evidence.

The finding upon which the legal conclusion of the referee is based, so far as it is necessary to be considered, is as follows, viz.: “In the latter part of the year 1865, or forepart of 1866, Mrs. Banks and the defendant had a conversation, in the defendant’s house, in which she asked him for a statement about the money he, defendant, had borrowed from her. He said he would settle with her in the afternoon. In the afternoon they again got together, and .the defendant then admitted that he owed her $700; ‘ that that amount was her due.’ Defendant then produced a county bond, and asked her if she would take that in part payment. She looked at it and said she would. Defendant then asked her if he had not better deposit it in the bank for safe keeping. To this Mrs. Banks assented, and defendant put the bond in his pocket. It was stated in these conversations that there was $200 due Mrs. Banks over and above the amount of the bond. The defendant after-wards appropriated the bond, and received the avails thereof to his own use.”

The Mrs. Banks referred to in the referee’s statement of the conversation is the testatrix, of whom the plaintiff is administrator with the will annexed.

The conclusion of law of the referee upon the foregoing statement is—“that the plaintiff, as administratrix as aforesaid, is entitled to recover against the defendant the su'm of seven hundred dollars, with interest thereon from January 1st, I860.”

This is clearly a non sequitur. The plaintiff is not entitled to recover because a certain conversation occurred in which an indebtedness was admitted. Even conceding that the finding would be sufficient to support a judgment for the conversion of the bond, there remain the $200, as to which nothing is found except the fact that a conversation occurred, in which the indebtedness was admitted. This admission, in connection with the other evidence tending to show that the defendant had previously received the sum of $725, which equitably belonged to Mrs. Banks, was strong evidence to establish the existence of an indebtedness, and would have been amply sufficient to justify a finding of the referee that the defendant was, at the time of the alleged conversation, in fact indebted to Mrs. Banks in the sum of $700. But it is merely evidence of the indebtedness, and is not of itself and does not constitute indebtedness, and it cannot legally be said that a plaintiff is entitled to a judgment because a certain conversation occurred, however strong evidence of the existence of an indebtedness that conversation may afford. It is necessary that the fact of indebtedness should be found and reported to the court. Although the evidence undoubtedly must have satisfied the mind oí the referee that the indebtedness did exist, yet he has wholly omitted to find any such fact, and instead has found and reported certain evidence, on the subject. The facts are to be found by the referee, and not by the court. If a special verdict should find precisely in this form, the court would be unable to render - any judgment for the plaintiff on the finding, because however strong the evidence to establish a fact may be, it is the province of the jury to find the fact, instead of reporting the evidence.

[Fourth Department, General Term, at Buffalo,

January 7, 1873.

Reports of referees are very often defective in failing to discriminate between the fact which is in issue, and the evidence to establish the fact. In such cases the fact which the evidence tends to establish is often, by counsel, assumed to have been found, and the case passes off without a critical examination of the finding in this particular. In this case, • however, the specific objection is made, and we do not see how it is to be avoided.

New trial ordered, costs to abide the event.

Mullin, Talcott and E. D. Smith, Justices.]  