
    Patrick H. Hutchinson vs. James C. Tucker.
    Suffolk.
    Nov. 24.—
    Dec. 2, 1876.
    Colt & Ames, JJ., absent.
    A case was submitted to the Superior Court “ on the auditor’s report, either party reserving the right of appeal.” Held, that no appeal lay to this court from the judgment of the Superior Court.
    .Contract on an account annexed against the defendant, as administrator of John C. Tucker, deceased.
    The case was referred by the Superior Court to an auditor, who made a report, stating in detail the evidence introduced before him, and his findings thereon. The parties waived trial by 'jury, and agreed “ to submit this action to the court on the auditor’s report, either party reserving the right of appeal.” Judgment was ordered for the plaintiff; and the defendant appealed to this court.
    
      P. H. Hutchinson, pro se.
    
    D. F. Fitz f J. H. Sherburne, for the defendant,
    contended that the declaration did not conform to the writ, and that the evidence reported by the auditor did not support the declaration.
   Gray, C. J.

An auditor’s report, not agreed on as a statement of facts, is no part of the record, but is only primd facie evidence for the consideration of the court or jury, and a judgment of the Superior Court thereon is not a subject of appeal to this court. Gen. Sts. c. 114, § 10; c. ■ 121, § 46. Chapman v. Briggs Iron Co. 6 Gray, 330. If the case had been submitted upon an agreed statement of facts, all questions of pleading would have been waived. Kimball v. Preston, 2 Gray, 567.

App. \ #-'smissed.  