By the Court,

The appellant claims that the court below erred in refusing its motion to set aside the first and third conclusions of law, in the report of the referee, and in refusing to enter the decree aslced for in its favor. The first inquiry suggested by the record in the case is, whether the appellant occupies such a position before this court as entitles it to raise these questions or any of them. Upon mature consideration, we are satisfied that it does not. We conceive that the action of a party in the court below, upon the filing of a referee’s report, is binding upon him there, as well as in this court.

The referee found that after allowing the respondents all the proper items of expense incurred in the selection and sale of- the lands mentioned in the report, there was still a *71deficiency of $6,153 87 in tlieir account. In the same motion in which the appellant asks to have the first and third conclusions of law set aside, it asks for a final decree for the amount of this deficiency. The amount of the expenses incurred, in selecting and selling the lands, allowed the respondents by the referee, as appears from his report, was $21,487 73, and was entirely separate and distinct from the amount of $6,153 87 found to be a subsisting deficiency, on September 14, 1874, and it is quite apparent that appellant only intended by its motion to ask for a decree for this deficiency so found due, and not for any portion of the amount allowed by the report to the respondents for expenses as above stated.

Lt does not matter that the appellant might have moved for a decree for the amount of the expenses so allowed, in addition to the amount of such deficiency, and it would not matter if its legal right to recover the aggregate sum of both, were clear and incontrovertible; it was under no compulsion to do so, and if instead, it chose to ask for a decree for only one of such amounts, or only a portion of one, it had the undoubted right to do it, and the court could not have granted more extensive relief. The only question is, what did the appellant intend? And we think there can be no doubt but that it meant to claim only the balance found by the report of the referee to have been due on September 14, 1874, and after all the credits for expenses had been allowed and deducted from the whole amount received by the respondents, and charged against them in the accounting.

If this position is correct, and we feel convinced that it is, then it follows as an inevitable consequence that the appellant must be confined, upon the appeal, to errors in the decree affecting this deficiency of $6,153 87. If the court below properly disposes of this balance, then the appellant *72is precluded, by its owu act, from urging error in respect to other matters which could not have resulted in injury to its substantial rights. Now the rule of law, adopted by the referee, in his first conclusion, had no bearing upon the final disposition of this deficiency of which appellant complains. It merely covered the allowance of expenses incurred in selecting and selling the lands, while the amount due, on kccount of this deficiency, which the referee found, and the appellant asked a decree for, definite in amount, and being in excess of such allowance, was not affected by it. If this conclusion had been set aside as incorrect, the final decree of the court would not have been different on that account.

It was irrevelent to the issue before the court, on thé appellant’s motion for the decree which he asked upon the findings of fact in the referee’s report; and as the ruling of the court below upon it could not have influenced its final decree, and the question raised upon it is equally irrelevant here, we feel under no obligation to pass any opinion as to its correctness. As to the objection based upon the refusal of the court below to set aside the third conclusion of law in the referee’s report, the position of the appellant is equally unfortunate. It nowhere appears in the report that there was any deficiency in the accounts of the commissioners arising out of transactions of the board, occurring subsequently to September 14, 1874.

The only facts we can consider in this case must be found in the pleadings, or else in the findings of the referee. The effect of the appellant’s motion on the report, was to affirm the findings of fact, for it moved to affirm, in every other respect except as to the first and third conclusions of law. By this course the appellant confined itself, so far as the facts not admitted by the pleadings were concerned, to the case made by such findings, and if the decree is supported by *73those findings, it ought not to be disturbed, and cannot be.

As there is no fact in this whole record, showing or tending to show, any other deficiency to which the payment by Cann might have been applied, the court below committed no error in appropriating it to the only deficiency disclosed by the record before it. This proposition we deem too plain to need any further explanation. It is sufficient to say that in no view of the law upon this subject could the court below have made any different application of this payment than it did by the decree appealed from. We find no error, and shall therefore affirm the decree with costs.

Decree affirmed.