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The opinion of the court was delivered by

Me. Chief Justice Simpson.

[Omitting his statement of the case, which is fully stated in the Circuit decree.] In addition to the foregoing exceptions founded upon the decree of Judge Hudson, at the hearing of this appeal appellant’s counsel undertook to review the decree of Judge Kershaw, claiming it to be an interlocutory or intermediate decree, and subject to review upon appeal from the final decree, citing Hyatt v. MeBurney, 17 8. O. 143. And the appellant’s counsel, in his •argument, also raises and discusses the question, “ Whether his Honor did not err in hearing the case on the exceptions taken to the referee’s report.” It is true this point was made below and, when overruled, was excepted to, but in the notice and grounds ■of appeal, this exception does not appear. It is a well-established rule that to authorize- this court to consider any question on appeal, it must be made in some form, one of the grounds of appeal, and must be brought before us in some definite and distinct shape. It will not do simply to except below, but the question must be presented in the grounds, or exceptions brought up to this court, otherwise this court cannot know but that it has been abandoned, nor can the opposite party be expected to meet it. This question then not appearing in the grounds of appeal, we are not at liberty, under the rule referred to, to consider it, whatever may be the merit therein.

The same may be said as to the attempt to bring under our review the judgment of Judge Kershaw. No doubt this decree *294was an intermediate decree. It was certainly not a final decree, and might have been made the subject of review here upon this appeal from the decree of Judge Hudson, which was a final decree, if it had been excepted to-specifically or by specifying the grounds of error, if any, in the exceptions by which the case has been brought here; but this the appellant failed to do. There is no error alleged in the decree of Judge Kershaw except in the argument, nor have any exceptions thereto or notice of intention to appeal therefrom, ever been filed. It was too late at the argument.' Cleveland v. Bryant, 16 8. C. 635; Pringle v. Sizer, 7 S. C. 134.

This brings us to the exceptions proper. The first, fifth, eighth and ninth are not very material. They do not affect the real questions involved, nor do they raise any question themselves necessary to be determined. The first is entirely too general, and is obnoxious to the same objection which the appellant made to the exceptions to the referee’s report, and which he failed to pursue. The fifth and ninth refer to the use that was made of the bill in equity, &c. The judge in his settlement explains this satisfactorily. It seems to have been introduced in evidence by the appellant’s counsel for a certain purpose and the judge says its use was confined to that purpose. The eighth seems to us wholly unimportant.

The appeal then must turn on the second, third, fourth and seventh exceptions. The second exception suggests a conflict between Judge Kershaw and Judge Hudson, as to the agreement between Fields and Gatlin. We do not see this conflict. It was held by both of the judges in effect, that Fields was a trustee holding the notes of Hurst as an indemnity until he was re-imbursed; Judge Kershaw said, for all his payments and expenditures on account of Gatlin; Judge Hudson said that Fields was to be re-imbursed for any outlay of money on his part in paying up and extinguishing the liens in the sheriff’s office; but both seemed to understand that the $800 note, over which the most serious contest took place, was to be considered, and Judge Hudson did not exclude this on the ground that it was not one of the matters which, even though valid, could not be allowed under the agreement, because not one of the debts of Gatlin, *295which Fields was to pay off; but he excluded it on the ground that the testimony failed to show that Fields had ever advanced money to Gatlin for said note. According to his idea, Fields held this note as an indemnity for moneys to be advanced for Gatlin on his debts, and that the Hurst notes were substituted in its stead when Kelly rescinded his trade and Hurst took his place as purchaser. So there is really no conflict between the -two decrees on that subject.

The third and fourth exceptions raise substantially the same question, and that is whether the finding of the referee as to the $800 note should have been disregarded and overruled by the judge. When Judge Kershaw heard the case, after determining the principles upon which the contest should be decided, he recommitted the matter to the referee, Mr. Ward, to ascertain and report the balance due, if any, by the defendant Hurst upon his notes given for the purchase of the said land, after allowing the credits to which he is entitled under the agreement as adjudged by him. It will be observed from the recital of the substance of Judge Kershaw’s order, that nothing but the finding of a certain matter of fact was referred to Mr. Ward, to wit, the balance due on Hurst’s notes, after allowing the credits to be established. There was nothing for Mr. Ward to do but to ascertain the credits, and to deduct them from the notes. This involves nothing more than questions of fact.

Now, it is provided in the code, that when nothing more than a question of fact is referred to a referee, in such case his finding and report becomes a special verdict, or, rather, in the language of the code : “ The report shall have the effect of a special verdict.” Lynch’s Code, § 296. Where the whole issue is referred, the report then stands as a decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court (Ibid.), subject to be reviewed on appeal under the provisions of section 292 Lynch’s Code. To what court this appeal must be carried, in the first instance, is not now-involved. But the report of the referee upon an issue of fact referred to him becomes a special verdict, and being a special verdict it is subject to be set aside, for any of the causes for which verdicts may be set aside, and the action of the judge in *296reference to such a case, so far as this court is concerned, must be considered as in any other case where verdicts are vacated and a new trial ordered.

These provisions of the code, however, are understood to apply especially to referees appointed under the code in actions at law, and not to referees appointed in equity causes. These latter are governed by a different rule: the rule which prevailed under the old chancery practice, where cases were referred to the master, an officer of the court, or to a referee, or sometimes to a jury, to assist the court, and for its information. The case before us is an equity case. It is substantially for specific performance, a case of equity cognizance, and must be governed by the rules established in this court in the various decisions upon subjects of this character, all of which are found cited in the “note of the reporter ” in 12 8. O., p. 609. And it belongs to that class where there is a difference between the judge and the referee upon the facts. In such case, this court will examine the decree, and either adopt or reject it, as the facts may warrant, to the same extent as a Circuit judge passes upon the report of the referee. The question, then, is an open question uninfluenced by the previous findings, and free from the operation of the rule adopted in other cases, that said finding will not be disturbed unless there is an absence of all testimony to support it, or the evident and overwhelming weight thereof is the other way.

Coming to the examination of the question of fact as to the $800 note as an open question, dependent entirely upon the force and effect of the testimony, we are constrained to support the finding of the referee. The question as to this note was, Did Fields advance the money to Gatlin for that note, or was it placed in his hands as an indemnity for such sums as Fields might thereafter pay for Gatlin ? The testimony of the plaintiff Fields is positive upon this subject. He states, unqualifiedly, that he paid Gatlin the full amount of this note. His son, P. G. Fields, swears that he wrote the indorsement on the note by which it was transferred to Fields; that this indorsement was witnessed by himself and one Jesse Walker that Gatlin told him that he owed his father the note and a great deal more. Jacob Kelly, the maker of the note, knew the fact that Fields *297had become possessed of this note very soon after he had executed it to Gatlin, and on that account, in part, he became dissatisfied with the trade. He did not want Fields to have this note upon him, and he had charged Gatlin not to let Fields' have it.

Now this is all the testimony that bears directly on the note. It is true that the character of Fields was assailed, not, however, with entire success. Three out of thirteen witnesses would not believe him on his oath, but six of the same thirteen. would; but then there is no doubt that the note was indorsed to and delivered by Gatlin to Fields. He thus became the legal owner, with all the presumptions in his favor. These all seem too strong to be overturned by the theory of the defense worked out of circumstances not entirely pertinent to the question at issue. We think the preponderance of the testimony is with Fields, and that he should have been allowed this note on the computation of his claims against Gatlin.

We sustain the finding of the judge as to the credit of the $600 received by Fields from Harris and Grantham. The intent and purpose of the transaction in reference to the land was to indemnify and secure Fields, and whatever he received therefrom should redound to the credit of Gatlin. Harris and Grantham, after they had purchased from Hurst and Gatlin, found it necessary to pay Fields this $600 to obtain good titles. Fields has no claim to this except as a benefit to Gatlin. He had no interest in the land except through Gatlin, and whatever he received was really for Gatlin, and he should account for it in a settlement with Gatlin, which settlement the court ordered the referee to make. If Harris and Grantham purchased from Hurst and Gatlin on a mistake as to the title, and the consideration has failed, they may possibly have a claim against Hurst and Gatlin to be re-imbursed; but this does not release Fields from the necessity of accounting for the amount received by him.

We do not see upon what testimony the judge decreed that Fields was entitled to nothing, and that he should be dismissed with one-half of the costs of the proceedings. After throwing out the $800 note, and charging Fields with the $600 received from Harris and Grantham, the itemized accounting, as appears *298in the decree itself, brought Gatlin in debt $67.83. (This amount should have been $89.31, as clearly appears from a mistake in the calculation of deducting the interest instead of adding it.) This balance is then expunged, upon the general statement that the $600 and the use of the land had sufficiently repaid Fields for the $362.12 found by the referee in his favor; yet the $600, and $75 per annum for three years’ use of the land, had already been deducted from the $362.12 and interest, leaving this balance of $89.31 unpaid. The judge thought from the testimony that Fields had wrongfully taken possession of the land, and that the referee had not given sufficient consideration to this fact in estimating the value of the use and occupation of the land. This may be so; but this was not sufficient, as it appears to us, without further examination and testimony, to bring the parties exactly even, or to warrant a judgment that Fields was entitled to nothing.

I think upon the testimony that Fields should be allowed the $800 and interest; that his claims against Gatlin should be credited with the $600 received by him from Harris and Grantham, and that he should have judgment for whatever sum may then be found due, and that he should have his costs; and to this end that the judgment below should be reversed, and the case remanded to the end that a judgment in accordance herewith may be pronounced.

Mr. Justice McIver.

While I agree with the chief justice as to the other questions made in this case, I do not think the evidence is sufficient to warrant us in reversing the conclusion reached by the circuit judge as to the Kelly note for $800, and, on the contrary, think his conclusion is supported by the preponderance of the testimony.

There can be no doubt that the notes of Hurst were given to Fields, not as evidences of any debt due by the former to the latter, but simply to indemnify Fields against certain claims which he had against Gatlin. The burden of proof was, therefore, upon Fields to establish such claims. It was incumbent upon him to show'that the note in question — the Kelly note— had been bought by him, and had thus become his absolute *299property, and was not held by him merely as indemnity. Upon this point, as, indeed, upon almost every other point involved in this controversy, the evidence was conflicting, and when this is the case, as we have held in Maner v. Wilson, 16 S. C. 470, the conclusion reached by the circuit judge, even though adverse to that reached by the referee, must be regarded as prima facie the correct conclusion.

It does not appear distinctly when the plaintiff claims to have bought the Kelly note from Gatlin. The plaintiff, at one point in his testimony, says that he bought this note about twelve months before the transaction with Hurst, which, from the date of the Hurst notes, must have been on September 8th, 1858. At another place he says: “ Bought the note in the latter part of ’58 or first of ’59, when the papers were fixed between him and Gatlin.” P. G. Fields, the son of the plaintiff, says in his testimony that the note was indorsed by Gatlin to his father on April 18th, 1858, and that “witness and Jesse'Walker were witnesses to the indorsement.” This witness, when previously examined, fixed the date of the transaction between his father and Hurst at April 18th, 1858.

All of the witnesses, on both sides, agree in one thing — that when the transaction between Fields and Hurst took place, out of which the present controversy arises, the trade previously made between Gatlin and Kelly was rescinded, and Kelly’s notes, given for the purchase-money of the- land, were then surrendered to him; but there is no little conflict as to what occurred between the parties at the time. According to the testimony of the defendant Hurst, and his witness Lee, nothing was said by Fields when he surrendered the note which he had previously held on Kelly about his having bought the note, or about his having any absolute claim to it, although the plaintiff did, when last examined, claim to have mentioned the fact at that time. Nor does it appear that Fields set up any claim to have been the absolute owner of the note in question when the first note of Hurst fell due, and James Kelly, as the friend of Gatlin, with others, went to Fields for the purpose of having a settlement of what Gatlin might be due Fields. It seems, too, that Fields paid the largest judgment against Gatlin on October 22d, *3001857, whether before or after the time he claims to have bought the Kelly note from Gatlin, his own testimony, and that of his son, leaves it doubtful, though it was certainly some time before the transaction with Hurst, and before the date (April 18th, 1858,) fixed by his son,

It seems to me that the plaintiff’s case rests entirely upon his own testimony, and upon that of his son; for according to my understanding of the matter, the testimony of Jacob Kelly affords no support whatever to the claim of the plaintiff. He only proves what is conceded on all sides — that Fields had one of the notes which he had given to Gatlin to secure the payment of the purchase-money of the land. He says : “ From time I made bargain, I' heard Fields was to get my notes. I charged Gatlin not to let him have them. He went and let Fields have one of my notes. * * * Gatlin went and left one of my notes with Fields.” Now, when it is remembered that the character of Fields was, to say the least of it, proved to be not above suspicion ; that he was an interested witness, testifying as to transactions with one whose mouth was closed by death • that his testimony was marked by numerous contradictions and inconsistencies, it is difficult to rest with confidence upon his statements, especially when contradicted by other witnesses of unimpeached character, some of whom are entirely disinterested, and when his statements are contradicted by the probabilities of the case.

If, as he alleges, he was the absolute owner of the Kelly note, it is scarcely credible that he would have surrendered it without taking something definite in its place. Why was it that he did not require from Hurst one note for the exact amount of the Kelly note, to say nothing of the fact that, as testified to by two witnesses, he did not even claim at that time to be the absolute owner of the Kelly note ? Gatlin’s object in selling the land seems to have been to get released from the pressure of judgments then subsisting against him; and why should Fields pay him $800 in cash, a sum, as the event has proved, more than sufficient to satisfy all the judgments against him, and, at the same time, undertake to satisfy such judgments ? If it be true that Fields paid Gatlin .in cash for the note, what security did Fields then have to indemnify him against any amounts that he *301might thereafter pay for Gatlin, to say nothing of the judgment for nearly $200 which he had then paid, or which he, at least, paid before the transaction with Hurst? If Fields paid the judgment for $195.12, in favor of Moses & Haynesioorth v. John, Gatlin, before he got the Kelly note, it is scarcely conceivable that he would have paid Gatlin the face of the note in cash, as he says he did, without deducting the amount thus paid. But if he paid such judgment afterwards, then, according to his version, he held no indemnity whatever ; and yet, when the transaction was made with Hurst, he seems to have required the most ample indemnity. Such conduct is entirely irreconcilable with all the probabilities of the case.

The inevitable inference from all the facts and circumstances of the case is that the Kelly note for $800 was originally “ left”’ with him (to use Jacob Kelly’s expression) as an indemnity against any amounts which he may then have paid or might thereafter pay for Gatlin; and that when it was agreed to rescind the land trade which Gatlin had made with Kelly, this note, together with the other notes of Kelly, were surrendered; and the notes of Hurst, together with the title to the negro woman, were given to Fields as a substitute for such indemnity. This, at least, is the version of the only really disinterested witness to the transaction — one in whom all the parties seem to have had confidence, as he was called upon • to draw the papers.

I think it is a mistake to say that there is no doubt that Gatlin indorsed the Kelly note to Fields, who thereby became the legal owner, with all the presumptions in his favor; for, while this fact is testified to by P. G. Fields, the son of the plaintiff, it is contradicted, not only by Hurst but also by Lee, who is an entirely disinterested witness, so far as the issues in this action are concerned, and who, being a surety on the note, would, most likely, have examined it very closely. Then, too, the account which P. G. Fields gives of the manner in which such alleged indorsement was made is, to say the least of it, very extraordinary; and the failure to produce the testimony of Jesse Walker, alleged to have been the other witness to this rather unusual proceeding, who does not appear to have been in any *302way interested or connected with any of the parties, to prove this fact so important to the plaintiff’s claim, is not without significance.

Without going into a minute discussion of the testimony, but after a full and careful consideration of all the facts and circumstances of the case, I am unable to see any sufficient ground for reversing the judgment of the Circuit Court as to the Kelly note. But, as is shown in the opinion prepared by the chief justice, there is error in such judgment upon another point, I think the judgment of this court should be that the judgment of the Circuit Court be reversed and that the case be remanded to that court with instructions to render judgment in favor of the plaintiff against the defendant, Samuel F. Hurst, for the sum of $89.31, together with interest thereon from the date of Judge Hudson’s decree, and the costs of this case; and that unless the same be paid within a time to be limited in such judgment, then the lands described in the complaint, except such as have heretofore been conveyed to the defendants Grantham and Harris, be sold at such time and on such terms as the Circuit Court may prescribe, and the proceeds be applied first to the payment of the costs of this case, together with the expenses of such sale, next to the amount herein ascertained to be due to the plaintiff, and the balance, if any, be paid over to the defendant, Samuel F. Hurst.

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