#### METRAH MAKELY v. W. C. MONTGOMERY.

(Filed 6 March, 1912.)

1. Reference — Jury Trial — Evidence.

Under our statute, a jury trial after a reference, and in the absence of new matter, is properly confined, under the issues, to the evidence taken before the referee.

*5902. Deeds and Conveyances — Trusts and Trustees — Evidence.

The quantum of proof required to establish a trust under the deed in this case, Held, sufficient under Ha/rding v. Long, 103 N. C., 1, and that line of cases.

3. Partnership Debts — Expenses of Partner — Evidence.

A conversation relied on to permit the defendant partner to charge his living expenses to the partnership as the expenses of the firm, Held, too vague and indefinite in this case.

Appeal from Cline, J., at December Term, 1911, of Beau-EOR.T.

Civil action beard upon tbe report of referee and sucb issues submitted to tbe jury as follows:

Does M. Makely bold tbe land conveyed by tbe deed dated 14 May, 1897, from Oalboun Tooley to M. Makely in trust for tbe firm of Montgomery & Makely? Answer: No.

What amount, if any, does tbe defendant owe tbe firm of Montgomery & Makely for casb sales of oysters from 1893 to 1909 ? Answer: $1,500.

From tbe judgment rendered, tbe defendant appealed to tbe Supreme Court.

Small,,MacLean & McMullan for plaintiff.

Rodman & Rodman, E. F. Aydlette for defendant.

Pee Ottbiam:.

Tbis is an action brought for tbe settlement of a copartnership. A compulsory reference is bad, exceptions filed ito tbe report of tbe referee, and tbe cause tried on issues submitted to tbe jury.

1. Tbe defendant excepts because bis Honor confined tbe trial upon tbe issues to tbe evidence taken before tbe referee. Tbis was in accordance with tbe act of 1897, cb. 237. So far as tbe record discloses, there are no additional matters entering into tbe controversy upon tbe amendment to tbe pleadings, and we think tbe case falls within tbe principle laid down in Moore v. Westbrook, 156 N. C., 482.

2. As to tbe quantum of proof required to establish a trust under tbe first issue, we think tbe charge of bis Honor was substantially correct, and practically followed tbe principle laid down in Ely v. Early, 94 N. C., 1, and Harding v. Long, 103 N. C., 1, and many subsequent decisions of tbis Court.

*5913. One of tbe claims of tbe defendant in tbe settlement of tbe copartnership account was tbat under tbe terms of tbe copart-nership be was entitled to be credited with bis living expenses as a part of tbe current expenses of tbe firm. This claim was allowed him by tbe referee, but tbe defendant excepts to this finding with reference to tbe amount allowed, and demanded a jury trial as to this.

We agree with bis Honor tbat there was no sufficient evidence tbat tbe defendant was entitled to have credited to him bis living and family expenses as a part of tbe expenditures of tbe firm. Tbe language employed in tbe conversation between plaintiff and defendant in respect to this matter is entirely too indefinite and uncertain to warrant any such conclusion.

We have examined tbe several assignments of error and tbe record, and are of opinion tbat tbe judgment should be

Affirmed.