The general finding or award, that the defendant did not disseize the plaintiff, includes the finding that there was no preponderance of evidence in favor of the plaintiff. The referee's statement, that the evidence was conflicting, and that he was unable to reach a satisfactory decision, is not a finding that there was a preponderance of evidence in favor of the plaintiff. If the case had been on trial before a jury, the defendant would have been entitled to the instruction that if there was a balance of evidence in his favor, or if the evidence was evenly balanced, the verdict must have been for him. He was only required to put in as much evidence as the plaintiff to keep the scales in equilibrium. The referee's statement, that the evidence was so conflicting he was unable to reach a satisfactory decision, can have no other legal meaning than that the ground upon which the plaintiff claimed to recover was not proved by a balance of the evidence.

Exceptions overruled.

BLODGETT and CARPENTER, JJ., did not sit: the others concurred. *Page 430