
    Amos D. Starbird vs. George W. Henderson.
    
      Amendment. Practice.
    
    Where the writ contains the money counts and a count upon a note payable in money, an amendment inserting a count on a similar note save that it is payable in labor, with the allegation of a demand and refusal of performance, is allowable.
    When a causéis referred to the presiding justice with the right to except, his determination as to the facts is conclusive and not re-examinable upon a report of the evidence,.
    In such case, the facts as found by him and his rulings as to matters of law only, and not the evidence, should be reported.
    On exceptions and motion eor a new trial.
    Assumpsit upon a promissory note for $37.50, dated June 9, 1863, payable to the plaintiff or order in one year with interest. Writ dated May 27, 1870. In the first count the note was stated as above, as if to be paid in money. The second count was the money counts. When the cause came on in order for trial, the plaintiff asked leave to amend his declaration by adding a count upon a note similar in amonnt, time and payee, to that described in the first count, but payable £-in the labor of the said defendant, at cash price, with interest to be paid in one year from that date, a time long since elapsed; and the plaintiff avers that, at Freeman aforesaid, lie was ready to receive the work or labor of the said defendant and requested the defendant to perform the same, but the said defendant did not perform the same, but neglected and still neglects so to do.” This amendment was allowed and the defendant excepted.
    The cause was then submitted to the presiding justice, reserving the right to except. He found for the plaintiff, and ordered judgment to be entered accordingly. The defendant made up a full report of the evidence, certified to be such by the judge, and moved to have the judgment set aside as against the evidence. It is unnecessary to report the testimony. There was no finding of facts by the justice to whom the. cause was submitted.
    
      8. Clifford Belcher for the defendant.
    
      JL L. Whitcomb for the plaintiff.
   Appleton, C. J.

This is an action of assumpsit. The writ contained a count upon a note signed by the defendant, dated June 9, 1863, for thirty-seven dollars and fifty cents payable to the plaintiff in one year from date with interest, together with the money counts, upon an account stated, and for work and labor.

The plaintiff was permitted, subject to exception by the defendant, to amend by inserting a count upon a note of hand similar in its terms to the one declared upon, save that it was payable in labor, and alleging a request on the part of the defendant to perform said labor and a refusal on his part so to do.

This amendment was properly allowed. The note in suit was not properly described. The misdescription was corrected.

The case was referred to the justice presiding with the right to except. No ruling is stated to which exception has been taken. The case comes before us upon a motion to set aside the judgment of the justice presiding as against evidence. But the evidence cannot properly be reported for the revision of the law court as to the correctness of his decision upon the facts. His adjudication upon them is final. Motion and exceptions overruled.

Walton, Barrows, Dickerson, Virgin and Peters, JJ., concurred.  