The statement of the defendant's counsel that there had been a trial and a verdict for the defendant was irregular and improper. Hilliard v. Beattie, 59 N.H. 462, 465, and authorities there cited. But whether it would invalidate the report if it did not appear that no injustice was done, is a question not necessary to be considered. A report in favor of the plaintiff would not have been according to the proof. The evidence upon which the referee found that the horse was not required for the plaintiff's use satisfactorily establishes that fact, and shows that no wrong is done by the report, and that justice requires a judgment for the defendant. Adams v. Bushey, ante 290.

The issue tried was whether the horse was required by the plaintiff for actual use, and this was to be determined upon evidence; and on this question the situation and circumstances of the plaintiff and his family, their employment and needs in this respect, were material. Pattee and Smith had knowledge of these facts, and their testimony in regard to them was properly admitted.

The finding of the referee for the defendant renders the exception to the admission of the testimony as to the manner in which *Page 400 the horse was kept immaterial. This evidence related to the question of value and damages.

Judgment on the report.

SMITH, J., did not sit: the others concurred.