delivered the opinion of the court.
This was a judgment on the report of a referee. The third section of the 16th article of the practice act of 1849, provides that the “report of.the referees, upon the whole issue, shall stand as the decision of the court in the same manner as if the action had been tried by the court; and their decision upon the matters referred may be excepted to and reviewed in like manner.” The main objections'made to the proceedings below is, that the evidence does not warrant the report of the referee. If such had been the case, the course of the defendant was a plain one. He should have specified the facts found as alleged against the evidence, and should have stated all the evidence in relation to them, and asked a review of the finding, and in the event of not obtaining i(, should have excepted. There is nothing in the other exceptions taken to the report of the referee.
the judgment will be affirmed ;