The opinion of the Court was delivered by

The appeal is from a judgment entered upon the report of a Referee of the whole issues in an action on a bond conditioned for the payment of money. It is to be assumed that the order of reference was made with the consent of the parties, as no objection is made to it on the ground that the issue was not referable under the Code of Procedure.

Under the appeal we have only authority to review the decisions below on questions of law material to the case. — Sullivan vs. Thomas, 3 S. C., 531. The facts found by the Referee must be considered as finally adjudicated, unless it is made to appear that the evidence on the'part of the defendant was incompetent to support his conclusions in point of law, and that, had the case been tried before a jury, the presiding Judge would have been justified in directing a verdict for the plaintiff.

The Referee found, as matter of fact, that the obligee of the bond in suit had accepted in full payment and satisfaction thereof a certain sum of money and the bond of a third person with sureties.

If this conclusion of fact is to be regarded as decisive, the judgment in favor of the defendant was a necessary legal consequence.

There was testimony in the casé competent to go to the Referee, or to a jury, as bearing on the question of fact, whether the money and bond were accepted as payment of the bond in suit.

The action was against the personal representative of a surety on a joint and several bond made by James B. Cureton, T. J.-Curcton, and others, to T. J. Withers. It was contended, on behalf of the defendant, that this bond had been satisfied and paid by the acceptance, on the part of Withers, the obligee, of the amount, in cash and the bond of a third person.

The fact to be established, and which was found by the Referee, was, that the acceptance of such payment and bond was intended by the parties as payment. -The evidence discloses two, facts material to this question: First, that J. B. Cureton, the principal *126obligor of the original bond, applied to Withers, the obligee, to accept the cash payment and bond offered, by way of substitution, in satisfaction of the original bond; and, second, that on the completion of the transaction, Withers, having received such cash payment and substituted bond for an amount exceeding the sum due on the original bond, paid the difference, in cash, to J. B. Cureton.

It does not appear, by direct testimony, that Withers, in terms, acceded to the proposition of J. B. Cureton, to accept the cash and bond, evidence on that subject having been rejected by the Referee, under the defendant’s exception. The fact of the payment of such difference clearly bears on the question of acceptance. It was the province of the Referee to pass upon the force and effect of this testimony, and it is not competent for this Court to say that that evidence was insufficient to sustain his conclusion.

We regard the evidence,as sufficient to entitle the Referee to pass upon the question as matter of fact, and, therefore, there is no error of law in the report which can be made ground for setting it aside.

The appeal must be dismissed.