The order referring the matter to Norment “to reform his report in accordance with the decision of the Supreme Court; and that his amended report so reformed, be the judgment of the Court,” was erroneous, because it deprived the parties of the right to except to the report for any errors which might be therein ; and because it allows the referee to determine what the judgment of the Court should be. No doubt his Honor puts his order in that form because he supposed that the corrections to be made were mere matters of calculation, in regard to which the referee could not err under the opinion of the Supreme Court, to which he meant implicit deference. But in this it seems he was in error; as well he might have been, from the confusion in which the case was involved.

We learn from the record and from the argument at this Bar, that there has been no investigation as to the solvency of the debts put into the hands of the defendant’s intestate for collection. There certainly ought to be an enquiry upon that subject. And the inquiry may be embraced in the order of reference; as it is too late for the parties to insist upon a jury trial as a matter of right. The measure of damages against the collecting agent will be the amount which he collected ; or which he might have collected and did not, and the same is lost by his negligence. Eor simply failing to return an insolvent note the damage is nominal.

As to the burden of proof the authorities are conflicting; *478 and, unless the parties choose to risk the substance for the shadow, it may not arise. And therefore we prefer not to decide it, unless it be directly presented.

There is error. This will be certified.

Judgment accordingly.