This case was submitted to an auditor with the usual powers of an auditor, and his second report is so to be taken, and was therefore only prima facie evidence.

*2552. The court properly rejected from the consideration of the jury the claim of damage for the breaking away of the defendants’ dam.

3. The verdict should not be set aside on account of the admission of evidence, on the part of the plaintiff, of his habits as to temperance in the use of intoxicating drinks, in reply to the depositions which had been read to the jury by the defendants, in the interrogatories of which the direct inquiry was put as “ to the habits ” of the plaintiff in reference to temperance, and in one of them an answer unfavorable to the plaintiff, and in the other, particular specifications of intemperate proclivities were given. The disclaimer of the defendants, subsequently made, as to the use they should make of this evidence, did not exclude the plaintiff from replying to what had been introduced reflecting upon his habits and character in this respect, and which was calculated to prejudice the jury. The time to which the inquiry was directed by the plaintiff was not too remote. He had been absent for a short period only, and that objection only went to the effect of the evidence, and not to its- competency. It was limited in its purpose to repelling the charges of bad habits, found in the interrogatories and answers in the depositions. This evidence of bad habits was, it would seem, on both sides, to a great degree immaterial evidence upon the issue, which was upon the want of faithfulness and due care on the part of the plaintiff in the business of the defendants; and the jury were instructéd to allow the defendants for all damages in this respect, subject only to a limitation to such claims as arose upon facts that came to their knowledge since the settlement took place between the parties, on the occasion of giving the note now sought to be recovered. We see no objection to this limitation, with the accompanying ruling, that all matters of fact then knowingly conceded, and acted upon, and made the subject of adjustment understand ingly, were not open to further controversy.

Exceptions overruled