¶1I concur in the conclusion that the judgnient in this cause should be reversed and a new trial ordered, on the ground that incompetent evidence was received by the referee. His ruling cannot be maintained as correct, because the evidence tended to establish the accuracy of the instrument made use of as a means of making correct tests of the quality and character of the milk which he supplied. For while it tended to establish that fact, it also at the same time tended to prove that the defendant had, after the suit was commenced, committed acts similar to those forming the substance of the issue. And from the proof of those acts the referee could derive some support for his conclusion that the defendant had probably done the same things before. In that- way the defendant was, or could have been, prejudiced by this evidence, and it should not for that reason have been received. The referee may not have ■made that use of it, but as it was in his power to do so as long as it was before him, and as there is nothing in the case showing he did *221not make such use of it, there is no ground for concluding that the defendant was not prejudiced by it.
¶2Miller, P. J., concurs in the result.