¶1By a provision of this case the parties are permitted to refer to the case as transferred by the common pleas at the March term, 1853. A reference to that case shows, that upon the transfer then made to this court, the' parties substantially agreed that judgment should be rendered upon the report, according to the opinion of this court thereon. Under that agreement judgment would have been rendered upon the report of the auditor, under the order of this court, at the July term, 1853, had it not been that the court were of opinion that it did not distinctly appear from the .finding of the auditor whether any demand was made upon the defendant before the suit was brought. Such is the rule of practice as laid down in King v. Hutchins, 6 Foster’s Rep. 139, and which we think should not be departed from. A case should not go to trial by the jury on an auditor’s report, after the parties have otherwise agreed, and the report is sent to this court for final determination.
¶2When this case was before this court at the term referred to, a decision w?as made in favor of the plaintiff upon the main questions raised. But it not appearing distinctly whether any notice had been given to the defendant before the commencement of the suit, the report was ordered to be recommitted to the auditor to ascertain that fact. It was not an order for a general recommitment. Beebe v. Dudley, 6 Foster’s Rep. 249, 256; and although the common pleas made a general recommitment, yet the auditor, it seems, understood the order of this court as a special one, such as it was, and acted accordingly.
¶3We-think that the court below were right in-the view which they took of the case; that the new report was a *38mere amendment of the former one, and that the defendant’s fight to a trial by jury had been waived by the agreement made on the previous transfer.
¶4The deficiency in the former report being supplied, there should now be,
¶5Judgment on the report.