
    Brown & ux., Ap’ts, vs. Cochran, Adm’r.
    It is not necessary for a referee to report a formal judgment. His report is only the foundation for a judgment.
    Where an heir appealed from the allowance of an administration account, after which the parties agreed to refer the matter, and the referee reported that the administrator should recover costs—Held, that as this could only be upon the ground that the causes of appeal were not sustained, a formal judgment, affirming the decree of the judge of probate, ought to have been entered, on the acceptance of the report.
    Motion to set aside a judgment, and recommit the report of a referee.
    Cochran, the appellee, as administrator of an estate in which Brown and his wife were interested, settled his account of administration in the probate court, and they appealed from the decree of allowance, objecting to certain charges of the administrator.
    After the entry of the appeal in this court, the matter was referred, by agreement of the parties; and the referee reported that the administrator should recover his costs of reference, and costs of court to be taxed by the court. Judgment was rendered for the administrator for costs, and execution issued and was satisfied.
    The administrator now moved the court to set aside the judgment, and recommit the report to the referee, in order that he might amend the report and find that the decree of the probate court, allowing the account of the administrator, be affirmed; and he offered the testimony of the referee to show that such was his intention.
    Bell, for the appellee.
    
      Bartlett, for the appellants.
   Parker, C, J.

There is no necessity for recommitting the report. The parties, by agreement, referred the matters in dispute between them to a referee. His report, that the administrator recover his costs, is virtually a finding that none of the grounds of the appeal were sustained. Had he reported that fact in terms, and that the decree ought therefore to be affirmed, there would have been no objection to the report. But the report of the referee is not of itself a judgment. It is only a foundation for the rendition of a judgment, and it was not necessary, therefore, that he should report a formal judgment. When he found and reported that the administrator should recover costs, as this could only be upon the ground that the appeal had not been sustained, a formal judgment, affirming the decree, should have been entered on the acceptance of the report. And as the omission to do this is a mere clerical error, the judgment may now be amended, without a recommitment of the report, on a motion for that purpose.  