
    Joseph Lyman, Judge, &c., versus Philemon Warren
    The report of auditors appointed by the Court to take an account, &c., becomes binding and conclusive, if no substantial objection is made to it; although it is not so in itself.
    Auditors have not the powers, which referees have, of awarding costs.
    After a confession of the forfeiture of the penalty of a bond, the plaintiff shall have his costs, although upon a hearing in equity it appears that nothing is due to him on the bond.
    This was an action of debt on a bond given to the plaintiff, as judge of probate for this county, by William Eaton as principal, and the defendant with Stephen Pynchon as sureties, conditioned for the said Eaton's faithful performance of the trust of guardian of Timothy Danielson and Eli Danielson, minors and children of the late Hon Timothy Danielson, deceased. This suit was instituted for the benefit of Asa Lincoln, and Sarah, his wife, and Timothy Daniel-son, as heirs at law of the said Eli Danielson, now deceased.
    The defendant confessed the forfeiture, and prayed to be heard in chancery ; and, by consent of the parties, three persons were appointed auditors, at the last September term, to examine, and take, and state the accounts in the action, and to return to the Court the facts they should find, and the sums *due, in [ *413] their opinion, on the bond, with the items which form the same.
    The auditors, at the last April term, which was holden by Putnam, J., made their reports specially, the result of which was : there was a balance due to the estate of said Eaton, of $468.88, from the estate of the said Eli ; and a balance of $269.83, due from the said Sarah ; and they further reported, that, from a consideration of all the facts in the case, and the personal knowledge which the said Timothy Danielson and the said Sarah Lincoln must have possessed on the subject, the auditors were of opinion that the costs of the auditing ought to be taxed against the party plaintiffs in interest in this action. The defendant' moved for the acceptance of the report, and for costs of the auditors and of court. The plaintiff objected to the motion, and contended that the report of the auditors ought not to be conclusive as to the damages ; as they were only to report facts subject to the opinion of the Court, and because, as he insisted, the auditors had no authority to examine the accounts of the guardian in relation to an alleged neglect in calling the former guardian to account, and in neglecting to take and preserve any account of the former guardian. The plaintiff further objected to the allowance of costs for the defendant; alleging that the auditors had no authority concerning that matter, and that it appeared to the Court that the guardian was summoned to render his account in the probate office, and refused ; whereupon this suit was commenced. The plaintiff further contended, that, as the guardian had not rendered any account to his wards, and, as the defendant had confessed the forfeiture, and had prayed to be heard in chancery, and there being a breach of the condition of the bond, there must be nominal damages at least; and so the plaintiff, as the party prevailing, being entitled to recover costs, could not be liable to pay costs. The defendant contended that the confession of the forfeiture, and the prayer to be heard in chancery, ought to be considered merely as putting the "[*414] *case on trial in equity ; that the auditors were appointed by consent; and by their report it appears that the defendant had prevailed and ought to recover his costs. The judge accepted the report of the auditors, and awarded costs for the defendant ; but he reserved the points for the consideration of the whole Court.
    The cause was argued, at this term, by Bliss and L. Strong, for the plaintiff, and F. Blake and Mills, for the defendant;
    after which the final decree of the Court was pronounced.
   Parker, C. J.

The report of the auditors is not binding and conclusive in itself; although it becomes so, if no substantial objection is shown to it. The authority given related to the whole transactions of the guardian, as well to his duty with respect to the former guardian, as his own management of the estate.

. With respect to the costs, we doubt whether the decision is correct. A confession of the forfeiture seems to involve a necessity for damages, which in this case ought to be nominal; but still, as the plaintiff has prevailed in his suit, he is legally entitled to costs. The auditors have not the powers which referees have, of awarding costs to either party, whether to him who prevails or bis adversary. Their power and duty is only to state the account, with vouchers tending to prove, or remarks tending to explain, the items.

Whether the defendant could have protected himself at law under a plea of omnia performavit, we are not able to say. It would seem, however, that the neglect or refusal to account, when cited by the judge of probate, would have been a breach of the condition. The defendant did not, however, put himself on legal defence ; but acknowledged that in point of law he was chargeable. Upon a hearing in equity, it appears that nothing is due from the guardian. But still the plaintiff must be considered as having prevailed ; and is, therefore, by the statute entitled to costs.

The appointment of auditors being by consent, the costs of the hearing before them is subject to the discretion of the Court; and, it being the opinion of the auditors that the plaintiff * ought even to pay costs, we think that he ought not to [*415] be allowed any thing but what may be strictly called the costs of court. 
      
       Vide Coffin vs. Jones, 5 Pick. 61.
     