¶1The appeal is taken front the judgment.
¶21. The point that the evidence is insufficient to justify the judgment is not well taken. The supposed bill of particulars upon which the argument of the appellant upon this point is founded is not contained in the record. The evidence given upon the part of the plaintiff tended to establish an indebtedness, in the first instance, from the defendant to the intestate of the plaintiff of eleven thousand seven hundred and seventy-five dollars. The amount of the offsets to be allowed in favor of the defendant involved a consideration of the credibility of the evidence offered, and the finding of the referee upon the question of fact involved will not be disturbed here.
¶32. The objection that the referee, in making his report, did not state the facts found and conclusions of law separately, is not supported by the record.
¶43. But there is nothing in the record to justify the judgment in gold coin, which the respondent obtained below. The judgment must be modified in that respect, but, inasmuch as no application was made to the Court below for the modification, no costs will be allowed to the appellant upon this appeal.
¶5Cause remanded without costs to the appellant, with directions to modify the judgment in the respect.indicated.
¶6Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.